Garde v Dowd

Case [2011] NSWCA 115

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Garde v Dowd [2011] NSWCA 115
Hearing dates:5 May 2011
Decision date: 11 May 2011
Before: Giles JA at 1;
McColl JA at 2;
Basten JA at 3
Decision:

(1) Application dismissed.

(2) Applicant to pay the First Respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - Local Court - apprehended violence proceedings - costs - whether Court required to fix amount - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 99; Criminal Procedure Act 1986 (NSW), s 215; Legal Profession Act 2004 (NSW), s 353

STATUTES - interpretation - reconciliation of conflicting provisions - provisions in one Act picked up by another
Legislation Cited: Crimes Act 1900 (NSW), Pt 15A
Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 17, 18, 20, 68; Pts 2, 6
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 84, 99; Sch 2.16
Criminal Procedure Act 1986 (NSW), s 215
District Court Act 1973 (NSW), s 176
Legal Profession Act 2004 (NSW), ss 353, 364
Uniform Civil Procedure Rules 2005 (NSW), r 6.12A
Cases Cited: Blacker v Parnell [1978] 1 NSWLR 616
Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552
Constable Redman v Willcocks [2010] NSWSC 1268
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705
Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531
Wishart v Fraser [1941] HCA 8; 64 CLR 470
Category:Principal judgment
Parties: Paul James Garde (Applicant)
Mark Dowd (First Respondent)
District Court of NSW (Second Respondent)
Local Court of NSW (Third Respondent)
Terence M Ower (Fourth Respondent)
Attorney-General (NSW) (Amicus Curiae)
Representation: A Bouris (Applicant)
R J Bromwich SC (First Respondent)
A C Johnson (Solicitor-Advocate) (Attorney-General, Amicus Curiae)
David Kotthoff (Applicant)
I V Knight, Crown Solicitor (Fourth Respondent)
I V Knight, Crown Solicitor (Attorney-General of NSW, Amicus Curiae)
File Number(s):2010/261449
 Decision under appeal 
Citation:
Paul Garde v MD [2009] NSWDC 389
Date of Decision:
2009-12-10 00:00:00
Before:
Nicholson DCJ
File Number(s):
2009/12/0937

Judgment

  1. GILES JA : I agree with Basten JA.

  1. McCOLL JA : I agree with Basten JA's reasons and the orders his Honour proposes.

  1. BASTEN JA : Mr Mark Dowd took proceedings under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the 2007 Act") for protective orders against Mr Paul Garde ("the applicant"). Mr Dowd ("the respondent") was successful in the Local Court and, following an appeal, in the District Court. The substantive orders are not the…

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AGLC
Garde v Dowd [2011] NSWCA 115
Case
[2011] NSWCA 115
Decision Date

CaseChat Overview and Summary

In *Garde v Dowd*, the applicant sought to appeal a decision of the Local Court concerning apprehended violence proceedings and the associated costs. The appeal was heard by Giles, McColl, and Basten JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Local Court was required to fix the quantum of costs awarded in apprehended violence proceedings, and how to reconcile potentially conflicting provisions within the *Crimes (Domestic and Personal Violence) Act 2007* (NSW), the *Criminal Procedure Act 1986* (NSW), and the *Legal Profession Act 2004* (NSW) concerning costs. The Court also considered the principles of statutory interpretation, particularly when provisions from one Act are incorporated by reference into another.

The Court of Appeal dismissed the application. It was held that the Local Court was not obliged to fix the specific amount of costs in these proceedings. The Court reasoned that the relevant legislation, when read together, did not impose such a requirement, and that the general principles of costs orders in summary proceedings applied. The applicant was ordered to pay the first respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Application dismissed.

(2) Applicant to pay the First Respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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