CITATION: DONG v HUGHES [2005] NSWSC 84
HEARING DATE(S): 7 May 2003, 30 May 2003, 25 June 2003, 13 October 2003, 11 December 2003
JUDGMENT DATE :
24 February 2005JUDGMENT OF: Levine J
DECISION: 1 Plaintiff granted leave to prosecute the appeal as set out in the Amended Summons seeking leave to appeal and appeal; 2 Plaintiff's Notice of Motion filed on 20 June 2003 is dismissed; 3 The Amended Summons is dismissed; 4 Plaintiff is to pay the defendant's costs of the Amended Summons and of the plaintiff's Notice of Motion.
CATCHWORDS: Appeal from Local Court - no evidence proffered by Commonwealth DPP - application for costs - Justices Act s 41A
LEGISLATION CITED: Bail Act 1978
Costs in Criminal Cases Act 1976 (Tas)
Evidence Act 1995
Justices Act 1902CASES CITED: Brown v Bessell (unreported, TAS SC, Zeeman J, 4 May 1994)
Coleman & Wholgemuth v Harper (unreported, Full Court TAS SC, 1 June 1993)
Fosse v DPP & Anor [1999] NSWSC 367
Jones v Dunkel (1959) 101 CLR 298
Latoudis v Casey (1990) 170 CLR 534
Michael v Thompson (1894) 20 VLR 548
R v Williamson [1972] 2 NSWLR 281
Ramirez v Sandor's Trustee (unreported, NSWSC, Young J, 23 April 1997)
Spautz v Williams (1983) 2 NSWLR 506PARTIES: CHUAN QIANG DONG
(Plaintiff)v
MARK HUGHES
(Defendant)FILE NUMBER(S): SC 11809 OF 2002
COUNSEL: C Steirn SC / T Hall
(Plaintiff)M Cinque / M Allnutt
(Defendant)SOLICITORS: David Kam & Co
(Plaintiff)Commonwealth Director of Public Prosecutions
(Defendant)
LOWER COURT JURISDICTION:
[2005] NSWSC 84
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
JUSTICE DAVID LEVINE
THURSDAY 24 FEBRUARY 2005
11809 OF 2002
CHUAN QIANG DONG
(Plaintiff)
MARK HUGHESv
(Defendant)
1 By an Amended Summons, the plaintiff seeks the following substantive orders:
“3. An order pursuant to section 109(a) of the Justices Act 1902 quashing the orders of Magistrate Dillon dismissing the Plaintiff’s application for orders for costs pursuant to Section 41A of the Justices Act 1902 .
4. A declaration that the Magistrate erred in law in determining that the Plaintiff did not discharge his onus of proof in accordance with Section 41A of the Justices Act as was reasonably required by the Plaintiff.
5. A declaration that the Plaintiff was entitled to costs on the Plaintiff’s costs application before the Local Court, subject of these appeal proceedings.
7. Costs.”6. An order that the matter be remitted to the Local Court to be dealt with according to law.
2 Pursuant to SCR Part 51B r 8, the grounds are stated as follows:
“1. This is an appeal against orders of Magistrate Dillion in the Local Court at Sydney on 4 June 2002 in which the learned Magistrate made orders dismissing the Plaintiff’s application for orders for costs pursuant to Section 41A of the Justices Act 1902 .
2. In…
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- Dong v Hughes [2005] NSWSC 84
- Case
- [2005] NSWSC 84
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CaseChat Overview and Summary
The legal issue before the court was whether the appellant was entitled to an order for costs in light of the absence of evidence from the Commonwealth Director of Public Prosecutions (DPP). The appellant argued that the failure of the DPP to provide evidence should have resulted in the dismissal of the complaint, and consequently, Dong should be awarded costs. The court had to determine whether the absence of evidence from the DPP justified an order for costs against Dong.
The court found that the absence of evidence from the DPP did not automatically entitle Dong to an order for costs. The court reasoned that the failure to present evidence could be attributed to the DPP and not necessarily to Dong. The court held that the absence of evidence did not warrant a dismissal of the complaint against Dong. The court concluded that the appellant was not entitled to an order for costs as the absence of evidence from the DPP did not absolve Dong of the need to defend the complaint. The court dismissed the appeal and ordered Dong to pay the costs of the appeal.
Orders
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Background
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Evidence
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Decision
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