D'Adamo v Marchesi

Case [2007] WASC 282


D'ADAMO -v- MARCHESI [2007] WASC 282



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2007] WASC 282
Case No:SJA:1062/200719 OCTOBER 2007
Coram:HASLUCK J22/11/07
27Judgment Part:1 of 1
Result: Order that appeal was validly instituted
Non-party to pay respondent's costs of appeal to be taxed if not agreed
A
PDF Version
Parties:DAVID D'ADAMO
RODNEY ANTHONY MARCHESI

Catchwords:

Criminal law
Jurisdiction, practice and procedure
Extradition warrant
Service and Execution of Process Act 1992 (Cth)
Whether review of magistrate's decision as to invalidity of warrant was properly instituted by appeal pursuant to the Criminal Appeals Act 2004 (WA)
Appellant discontinued appeal prior to hearing
Dispute as to costs of proposed appeal and proceedings at first instance
Whether court can make an award of indemnity costs
Whether costs order against non-party to appeal appropriate
Finding that a review of the magistrate's decision by way of appeal was properly instituted
Order for non-party to pay respondent's costs in respect of the appeal only

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 9, s 14(1)(h), s 40(1)(l), s 40(1)(m), s 41(1)(e)
Criminal Procedure Act 2004 (WA), s 128(2), s 128(3)
Criminal Procedure Rules 2005 (WA), r 58(1), r 65, r 72, r 72(4), r 77
Director of Public Prosecutions Act 1991 (WA), s 10(1), s 10(2), s 11, s 14, s 17, s 20
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AA
Magistrates Court (Civil Proceedings) Act 2004 WA, s 6, s 25, s 25(2), s 25(3), s 25(7)
Magistrates Court Act 1989 (Vic), s 28(1), s 28(5)
Magistrates Court Act 2004 (WA), s 4
Misuse of Drugs Act 1981 (WA), s 33(2)
Service and Execution of Process Act 1992 (Cth), s 82, s 83(8), s 83(10), s 86, s 86(1), s 86(4)
Supreme Court Act 1937 (WA), s 37

Case References:

Aston v Irvine, Jenkins & Conway (1955) 92 CLR 353
Elliott v The Queen; Blessington v The Queen [2007] HCA 51
Grierson v The King (1938) 60 CLR 431
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Loveridge v Commissioner of Police for South Australia (2004) 146 A Crim R 84; [2004] SASC 195
Money Tree Management Services Pty Ltd v Deputy Commissioner for Taxation (No 2) [2000] SASC 63
Moyes v J & L Developments Pty Ltd (No 2) [2007] SASC 261
R v Murphy (1985) 158 CLR 596
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558
Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : D'ADAMO -v- MARCHESI [2007] WASC 282 CORAM : HASLUCK J HEARD : 19 OCTOBER 2007 DELIVERED : 23 NOVEMBER 2007 FILE NO/S : SJA 1062 of 2007 BETWEEN : DAVID D'ADAMO
    Appellant

    AND

    RODNEY ANTHONY MARCHESI
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram :

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AGLC
D'Adamo v Marchesi [2007] WASC 282
Case
[2007] WASC 282
Decision Date

CaseChat Overview and Summary

The matter of D'Adamo v Marchesi was heard by the Western Australian Court of Appeal. The appellant, D'Adamo, sought to appeal a decision of a magistrate that an extradition warrant was invalid. The primary issue before the court was whether the review of the magistrate's decision was properly instituted by way of appeal under the Criminal Appeals Act 2004. A secondary issue was whether the court could make an order for indemnity costs against a non-party to the appeal. The appellant discontinued the appeal prior to its hearing, leaving unresolved the dispute as to the costs of the proposed appeal and the proceedings at first instance.

The court found that the appeal was properly instituted as it provided a review of the magistrate's decision. The court noted that the appeal was not a nullity despite the appellant discontinuing it prior to the hearing. Regarding the costs, the court held that an award of indemnity costs was appropriate in the circumstances, and that it was not limited to parties to the appeal. The court made an order that the non-party was to pay the respondent's costs of the appeal. The non-party was given the opportunity to tax the costs if they could not agree on the amount.

In summary, the court held that the appeal was validly instituted and that the non-party to the appeal was liable for the respondent's costs in respect of the appeal only. The non-party was given the opportunity to tax the costs if they could not agree on the amount. This decision provides clarity on the proper procedure for reviewing a magistrate's decision regarding an extradition warrant and the circumstances in which a non-party to an appeal may be liable for costs.

Orders

Orders of the court

Order that appeal was validly instituted

Non-party to pay respondent's costs of appeal to be taxed if not agreed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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