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Dong v Hughes

Dong v Hughes

Case [2005] NSWSC 84 24 February 2005

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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 2005

JUDGMENT 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 1902

CASES 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 506

PARTIES:
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)

v

MARK HUGHES
(Defendant)

JUDGMENT (Appeal from Local Court – no evidence proffered by Commonwealth DPP – application for costs –

Justices Act

s 41A)

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.

6. An order that the matter be remitted to the Local Court to be dealt with according to law.

7. Costs.”

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…

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 Dong v Hughes

Details

AGLC: Dong v Hughes [2005] NSWSC 84
Case: [2005] NSWSC 84
Decision Date: 24 February 2005

CaseChat Overview and Summary

In Dong v Hughes, the appellant, Dong, sought an appeal from the Local Court decision that was made in a case brought by the respondent, Hughes. The nature of the dispute involved the imposition of costs against Dong in proceedings that took place in the Local Court. The matter was heard in the Supreme Court, which had jurisdiction to hear appeals from the Local Court under the Justices Act.

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