Commissioner of Police v Payne - [1999] NSWSC 640

Reported Decision: 47 NSWLR 245

New South Wales

Supreme Court

CITATION: Commissioner of Police v Payne & Anor [1999] NSWSC 640 revised - 08/07/99

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 11887 0f 1998

HEARING DATE(S): 31/08/98

JUDGMENT DATE:
30 June 1999

PARTIES :

The Commissioner of Police (plaintiff)
Christopher Payne (defendant 1)
Ms Carolyn Barkell (defendant 2)

JUDGMENT OF: Hidden J at 1

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Ms Carolyn Barkell, Magistrate

COUNSEL : P J Saidi (plaintiff)
P Little (defendant 1)

SOLICITORS: I V Knight (Crown Solicitor) (plaintiff)
D J Hodgess & Associates (defendant 1)

CATCHWORDS: Magistrates - Commercial Agents and Private Inquiry Agents Act 1963 - summons under s11 to show cause why licence should not be cancelled - exercise of magistrate's discretion - whether magistrate has power to award costs.

ACTS CITED: Commercial Agents and Private Inquiry Agents Act 1963
Justices Act 1902

CASES CITED: Grassby v The Queen (1989) 168 CLR 1
Wilson v McDougall (1987) 11 NSWLR 241
Jones v Metcalf [1979] 2 NSWLR 709
Commissioner of Police v Bennett (1991) 9 Petty S.R. 4311
Chinchen v Weiss (1963) 80 WN (NSW) 1676
Cook v Head [1976] 1 NSWLR 176
Hoban v Davey [1972] 1 NSWLR 59

DECISION: Summons dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J

Wednesday 30 June 1999

No: 11887 of 1998 The Commissioner of Police - v - Christopher Payne & Anor

Reasons for judgment
1 HIS HONOUR: On 1 June 1998 the second defendant, a magistrate, heard proceedings commenced by summons directed to the first defendant, Christopher John Payne, to show cause why a private inquiry agent’s licence issued to him under the Commercial Agents and Private Inquiry Agents Act 1963 should not be cancelled. The proceedings had been initiated by a police officer, Sergeant Michael Gorman of the licensing office at Blacktown police station. Her Worship declined to make an order that the licence be cancelled and ordered the police officer to pay the first defendant’s costs of the proceedings. The plaintiff in this Court, the Commissioner of Police, seeks to invoke the Court’s supervisory jurisdiction in relation to her Worship’s refusal to cancel the licence and the order for costs. I shall turn to the orders sought by the plaintiff in due course.

The legislation

2 Before recounting the facts, it is necessary to summarise the effect of some provisions of the Commercial Agents and Private Inquiry Agents Act. The Act provides for the licensing of commercial agents, private inquiry agents and subagents. Section 10 deals with applications for licences. By s10(2) an application is lodged with the clerk of the Local Court in the district in which the applicant proposes to carry on business. If the applicant has not previously held a licence, the clerk of the court forwards particulars of the application to the officer in charge of the nearest police station: s10(4)(c). That officer inquires whether there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commissioner of Police v Payne

Details

AGLC: Commissioner of Police v Payne [1999] NSWSC 640
Case: [1999] NSWSC 640
Decision Date: 30 June 1999

CaseChat Overview and Summary

The case of Commissioner of Police v Payne involved the Commissioner of Police seeking to cancel a private investigator's licence under the Commercial Agents and Private Inquiry Agents Act 1963. The matter was heard and determined by a magistrate. The central dispute centred on whether the magistrate had the authority to award costs against the private investigator, Payne, in proceedings where the Commissioner sought to cancel his licence. The legal issues before the court were whether the magistrate had the power to order costs in such proceedings and, if so, the circumstances under which this power could be exercised.

The court considered the statutory framework governing the proceedings and the scope of a magistrate's discretion in matters related to the cancellation of a licence. It was necessary to interpret the relevant provisions of the Act to determine the extent of the magistrate's authority, particularly concerning the award of costs. The court examined the language of the Act and relevant case law to ascertain whether the magistrate had the power to order costs against Payne. It was noted that the Act did not explicitly provide for the award of costs, but the court had to consider whether such a power could be implied or was otherwise available under the statutory scheme.

The court concluded that the magistrate did have the power to award costs in proceedings under section 11 of the Act. The court reasoned that the absence of an explicit provision for costs did not preclude the magistrate from exercising this power, as it was an inherent jurisdiction available in civil proceedings. The court held that the discretion to award costs could be exercised by the magistrate, provided it was just and equitable to do so. The court determined that the magistrate had acted within their discretion in awarding costs against Payne, considering the circumstances of the case. The decision affirmed the magistrate's authority to order costs in such proceedings, provided it was exercised fairly and in accordance with the principles of justice.

The final orders of the court upheld the magistrate's decision to award costs against Payne and dismissed the Commissioner's appeal. The court emphasised that the magistrate's discretion to award costs was a recognised part of the legal process and should be exercised judiciously. The decision provided clarity on the magistrate's authority in matters related to the cancellation of a private investigator's licence under the Act, affirming the magistrate's ability to order costs in appropriate circumstances.

Orders