Supreme Court
New South Wales
Medium Neutral Citation: Cunningham v Cunningham (No 2) [2012] NSWSC 954 Hearing dates: 17 August 2012 Decision date: 17 August 2012 Jurisdiction: Common Law Before: Button J Decision: 1. Plaintiff pay the costs of the defendant in this Court.
2. Such costs be paid within 56 days after an agreement as to the amount of costs, or the issue of a certificate of assessment of any such costs, whichever is the earlier.
Catchwords: COSTS - whether court has power to order costs in appeals under Part 5 of the Crimes (Appeal and Review) Act 2001 Legislation Cited: Crimes (Appeal and Review) Act 2001
Local Court Act 2007
Supreme Court Act 1970
Supreme Court Rules 1970Cases Cited: ASIC v Sigalla (No. 6) [2012] NSWSC 83
Cunningham v Cunningham [2012] NSWSC 849
Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713
Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5
Ronowska v Kus (No 2) [2012] NSWSC 817Category: Costs Parties: Warren Cunningham (plaintiff)
Christine Cunningham (defendant)Representation: Counsel:
Self-represented (plaintiff)
C Fraser (defendant)
Solicitors:
Self-represented (plaintiff)
Raj Haricharan (defendant)
File Number(s): 2010/321034
ex tempore Judgment
On 27 July 2012, I delivered a judgment dismissing the summons of the plaintiff seeking to review a refusal by a Magistrate to order costs in favour of the plaintiff after he successfully resisted an application for an ADVO brought by the defendant: see Cunningham v Cunningham [2012] NSWSC 849. I made no order as to costs on that day, but provided the defendant with liberty to apply. She has so applied for costs of the proceedings in this Court. Written and oral submissions have been provided by both parties on that question.
The plaintiff was unrepresented at the substantive hearing of the summons, and again today, although a portion of his written submissions today had benefited from the assistance of counsel. In light of the inchoate nature of his submissions in support of the summons, my judgment shows that I proceeded on the basis that he was appealing pursuant to s 70 of the Local Court Act 2007, and therefore by way of Part 5 of the Crimes (Appeal and Review) Act 2001 ("the Act"). I also considered briefly whether prerogative relief was available.
The plaintiff having failed on the summons, I paused before ordering costs in this Court against him. That is because there is a curious lacuna in the power to order costs in the Act.
Appeals from the Local Court to the District Court pursuant to Part 3 have a specific costs power in sub-section 28(3) of the Act. That sub-section reads "[s]ubject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just." Appeals from the Local Court to the Land and Environment Court pursuant to Part 4 also have a specific costs power in sub-section…
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- AGLC
- Cunningham v Cunningham (No 2) [2012] NSWSC 954
- Case
- [2012] NSWSC 954
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the statutory framework under which the appeal was brought included provisions that allowed for the awarding of costs. The relevant section in question was section 358 of the Crimes (Appeal and Review) Act 2001, which outlined the powers of the court in relation to appeals and reviews. The appellant argued that this section did not provide the Supreme Court with the power to order costs, while the respondent contended that the court had such authority. The court's task was to interpret the statutory language and determine if it conferred the power to order costs in the context of appeals under Part 5 of the Act.
In delivering the judgment, the Supreme Court held that the statutory provisions did not explicitly grant the court the power to order costs in an appeal proceeding. The court examined the legislative intent and the broader context of the statutory framework, finding no clear authority for the Supreme Court to award costs against the appellant. Consequently, the court concluded that it did not have the power to order costs in the appeal proceedings. The decision underscored the importance of statutory interpretation in determining the scope of judicial powers in specific legal contexts.
The final orders of the court were that the appeal was dismissed, and the costs of the appeal were to be borne by the appellant. This outcome emphasised the need for clarity in statutory language regarding judicial powers and the potential implications for parties involved in appeal proceedings.
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