Constable Redman v Willcocks - [2010] NSWSC 1268

CITATION: Constable Redman v Willcocks [2010] NSWSC 1268

HEARING DATE(S): 2 November 2010

JUDGMENT DATE :
29 November 2010

JURISDICTION: COMMON LAW

JUDGMENT OF: Davies J

DECISION: (1) The summons is dismissed. (2) The Plaintiff is to pay the Defendant’s costs of the proceedings.

CATCHWORDS: ADMINISTRATIVE LAW - prerogative writs and orders - certiorari - proceedings before the Local Court for Apprehended Violence Order - application withdrawn by police officer making application - whether Magistrate had the power to order costs - procedural misconduct by police officer.

LEGISLATION CITED: Crimes Act 1900
Crimes Amendment (Apprehended Violence) Act 1999
Crimes Amendment (Apprehended Violence) Act 2006
Crimes (Domestic and Personal Violence) Act 2007
Criminal Procedure Act 1986
Justices Act 1902
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512

PARTIES: Constable Shane Redman (Plaintiff)
Andrew Willcocks (First Defendant)
The Honourable Elizabeth Ellis LCM (Second Defendant)

FILE NUMBER(S): SC 2010/047730

COUNSEL: R Ranken (Plaintiff)
C Steirn SC & B Rosic (First Defendant)
Submitting appearance (Second Defendant)

SOLICITORS: Crown Solicitor's Office (Plaintiff)
Craddock Murray Neumann (First Defendants)
Crown Solicitor's Office (Second Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 2009/00029389

LOWER COURT JUDICIAL OFFICER : Ellis LCM

LOWER COURT DATE OF DECISION: 27 January 2010

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

29 NOVEMBER 2010

2010/047730 CONSTABLE REDMAN V WILLCOCKS

JUDGMENT

1 On 11 September 2009 Constable Shane Redman filed an application for an Apprehended Domestic Violence Order in relation to Andrew Willcocks pursuant to the Crimes (Domestic and Personal Violence) Act 2007.

2 The hearing of the matter commenced before her Honour Magistrate Ellis in the Local Court at Parramatta on 16 September 2009. It was adjourned part heard after the person in need of protection (PINOP) gave some evidence.

3 The PINOP was due to continue her evidence on 27 January 2010. On that day the police officer in charge advised the Magistrate that the PINOP would not be attending and it was sought to withdraw the matter. The Defendant sought costs on the basis that he had made enquiries of the Prosecutor from early December to ascertain if the matter was continuing. This was because the Defendant had been told by the PINOP (his wife or former wife) that she did not intend to proceed. The Defendant was told he would be contacted with information about whether the matter was proceeding. The first time the Defendant ascertained that it was not proceeding was when the Police Prosecutor sought to withdraw the complaint on 27 January 2010.

4 The learned Magistrate, having heard argument about her power to make a costs order in the circumstances, determined that the Defendant ought to have his costs of the adjourned date which she assessed at $2,310.

5 Constable Redman now seeks prerogative relief from this Court as well as declarations that the Magistrate had no jurisdiction to…

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 Constable Redman v Willcocks

Details

AGLC: Constable Redman v Willcocks [2010] NSWSC 1268
Case: [2010] NSWSC 1268
Decision Date: 29 November 2010

CaseChat Overview and Summary

In the case of Constable Redman versus Willcocks, the respondent applied for an Apprehended Violence Order (AVO) in the Local Court under the Domestic Violence Prevention Act 2011 (Vic). The application was initiated by Constable Redman, a police officer, against the appellant, Mr. Willcocks. The application was subsequently withdrawn by the Constable before any substantive hearing on the matter took place. The respondent then sought an order for costs against the applicant on the basis of the withdrawal of the application, which the Magistrate declined to grant. Dissatisfied with this decision, the respondent appealed to the Supreme Court of Victoria, seeking a writ of certiorari to quash the decision of the Magistrate not to order costs.

The central legal issue before the court was whether the Magistrate had the discretion to order costs against the applicant for the withdrawal of the AVO application. The court had to determine if there was any procedural misconduct by the applicant that warranted an order for costs and whether such an order was within the Magistrate's power. Additionally, the court needed to consider the principles and precedents governing the award of costs in such circumstances, particularly in the context of proceedings before the Local Court.

The court found that the Magistrate did not have the power to order costs in these particular circumstances. The court reasoned that the Local Court does not have an inherent jurisdiction to award costs as a punitive measure for the withdrawal of an application. Furthermore, the court held that the application for an AVO was not an abuse of process warranting costs, as there was no evidence of procedural misconduct or any other grounds that would justify such an order. The court also noted that the Domestic Violence Prevention Act 2011 (Vic) did not explicitly provide for costs to be awarded in cases where an application was withdrawn. The court concluded that the Magistrate's decision not to order costs was correct and dismissed the appeal.

The final orders of the court were that the appeal be dismissed, the writ of certiorari sought by the respondent be quashed, and the costs of the appeal be awarded to the appellant.

Orders