Evans v Powell (No 2)

[2012] NSWSC 1479

Supreme Court

New South Wales

Medium Neutral Citation:	Evans v Powell (No 2) [2012] NSWSC 1479
Hearing dates:	On papers
Decision date:	04 December 2012
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Mr Powell is to be granted a certificate under s 6 of the Suitors' Fund Act.
Catchwords:	COSTS - Suitors' Fund Act 1951 - certificate granted
Legislation Cited:	Suitor's Fund Act 1951
Cases Cited:	Evans v Powell [2012] NSWSC 1384 Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575
Category:	Costs
Parties:	Tim Evans (Plaintiff) (Department of Family and Community Services) Adrian Powell (Defendant)
Representation:	Counsel: Mr S Chapple (Defendant) Solicitors: IV Knight, Crown Solicitor (Plaintiff) Yardy Legal (Defendant)
File Number(s):	2012/88536
Publication restriction:	No

Judgment

1. Judgment was given in favour of the plaintiff (see Evans v Powell [2012] NSWSC 1384). The defendant, Mr Powell, did not oppose the usual order as to costs being made against them, but sought that a certificate be issued in his favour under s 6 of the Suitors' Fund Act 1951, the appeal brought against a decision of the Local Court, dismissing 5 court attendance notices, having succeeded on questions of law.

1. The Court has a discretion as to whether or not the certificate should be issued. In Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575, also an appeal on a question of law from a decision of a Local Court, Basten JA observed at [37] - [38]:

"37 There is no reason to doubt that these proceedings constitute an appeal against a decision of a court, to the Supreme Court, on a question of law or fact, for the purposes of s 6(1) of the Suitors' Fund Act. As noted at [14] above, the proceedings were brought pursuant to s 56 of the Crimes (Local Courts Appeal and Review) Act. The only question which might arise in these circumstances is whether the Suitors' Fund Act applies in relation to appeals from convictions for summary offences, or is limited to civil proceedings. In my view, there is no reason to doubt that it is so available. Although s 6 is silent in relation to this question, other provisions, including s 6A, provide expressly that it may apply in relation to civil or criminal proceedings. Further, certificates have been granted in relation to cases stated under s 5B of the Criminal Appeal Act 1912 (NSW). In Ex parte Neville; Re Suitors' Fund Act [1964-5] NSWLR 1526, and (1966) 85 WN (Pt 1) (NSW) 372, Maguire J held that the requirements of the section would be satisfied, if it could be said that the proceedings constituted an appeal "against the decision" of the Court below. That issue does not arise in the present case. Accordingly the power is available to grant such a certificate.

38 Where the power is available, a certificate is usually granted as a matter of course, in the absence of particular considerations which would warrant withholding a certificate in the exercise of the Court's discretion. ...."

1. In this case on appeal there were no issues lying between the parties as to the various grounds of appeal advanced, Mr Powell conceding that unless the matters he raised by way of contention were upheld, the appeal had to be allowed. Mr Powell failed in that regard, but that is not a basis in the circumstances of this case, for refusing to exercise the discretion in his favour. Neither below nor on appeal did Mr Powell act unreasonably. To the contrary, the case was decided in his favour on a basis which he did not advance and about which he was not given an opportunity to be heard.

1. In the result, I am satisfied that he must have a certificate.

Order

1. Accordingly, I order that Mr Powell be granted a certificate under s 6 of the Suitors' Fund Act.

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