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Cunningham v Cunningham (No 2)

Cunningham v Cunningham (No 2)

Case [2012] NSWSC 954 17 August 2012

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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 1970
Cases 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 817
Category: 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…

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 Cunningham v Cunningham (No 2)

Details

AGLC: Cunningham v Cunningham (No 2) [2012] NSWSC 954
Case: [2012] NSWSC 954
Decision Date: 17 August 2012

CaseChat Overview and Summary

The case of Cunningham v Cunningham (No 2) involved an appeal against a decision made by the County Court of Victoria in a matter concerning a domestic violence intervention order. The appeal was brought before the Supreme Court of Victoria under Part 5 of the Crimes (Appeal and Review) Act 2001. The central legal issue in this case was whether the Supreme Court had the authority to order costs against the appellant in an appeal proceeding. This issue arose from the appellant's dissatisfaction with the County Court's decision to grant the respondent a domestic violence intervention order, and the subsequent appeal to the Supreme Court.

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.

Orders