Gee v Office of the Director of Public Prosecutions

[2019] NSWCA 257

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gee v Office of the Director of Public Prosecutions [2019] NSWCA 257
Hearing dates:	17 October 2019
Date of orders:	17 October 2019
Decision date:	17 October 2019
Before:	Bell P at [1]; Macfarlan JA at [9]
Decision:	Application for leave to appeal dismissed with costs
Catchwords:	CIVIL PROCEDURE – leave to appeal – from interlocutory orders – where primary judgment did not involve any question of principle – where primary judge had discretion as to costs
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) s 53(3)(b) Local Court Act 2007 (NSW) s 70(1)(c) Supreme Court Act 1970 (NSW) s 69 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Category:	Procedural and other rulings
Parties:	Vicki Gee (First Applicant) Mark Gee (Second Applicant) Office of the Director of Public Prosecutions (Respondent)
Representation:	Counsel: I D Roberts SC with T B Jones (Applicants) B K Baker (Respondent)   Solicitors: Toby Tancred Solicitor (Applicants) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2019/00189912
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 618 Date of Decision: 24 May 2019 Before: Adamson J File Number(s): 2018/308200

Ex tempore Judgment

1. BELL P: The decision from which leave to appeal is sought is that of Adamson J of 24 May 2019: [2019] NSWSC 618. On that occasion, her Honour made the following orders:

"1. By consent and pursuant to s 69 of the Supreme Court Act 1970 (NSW) set aside the decision of Day LCM made on 12 September 2018 at the Local Court at Orange to refuse a certificate under the Costs in Criminal Cases Act 1967 (NSW).

2.   By consent, order that the plaintiff's application for a costs certificate be remitted to the Local Court to be determined according to law.

3.   Order that each party pay his or her own costs of the proceedings in this Court.”

2. It is in respect of the third order that leave to appeal is sought.

3. For most of the period during which the proceedings were on foot including up until shortly prior to the hearing, the plaintiffs were seeking leave to appeal under s 70(1)(c) of the Local Court Act 2007 (NSW) from a decision of Day LCM which depended on there being an avenue of appeal open pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). An alternative claim for relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) was added, having first been notified in late 2018.

4. The detail of the procedural history in the matter and the ramifications of that procedural history in terms of costs is set out with characteristic care by the primary judge in para [16] and following of her Honour's reasons.

5. The decision as to costs from which leave to appeal is sought has the following characteristics:

1. It is interlocutory in nature.

2. It concerns a matter of practice and procedure.

3. It entailed the exercise of a broad discretion in that pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 42.1 it was open to her Honour to make some other order as appeared to the Court appropriate rather than simply to order that costs were to follow the event. That section provides a discretion to the primary judge on the question of costs.

4. Her Honour's decision did not involve any question of principle.

6. This Court has made it plain time and again that decisions having characteristics of the kind I have identified will generally not attract a grant of leave to appeal. That is on top of the general obligation on an applicant for leave to appeal to establish an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable. The relevant authorities are collected in the joint reasons of Simpson AJA and myself in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48.

7. The current application, in my opinion, falls well short of meeting any of these criteria. The primary judge's decision was not only open to her but was, in my opinion, soundly based. There is no need or utility to revisit her reasons which are clear and cogent.

8. I would dismiss the application for leave to appeal with costs.

9. MACFARLAN JA: I agree with the President.

10. BELL P: The orders of the Court, therefore, are: application for leave to appeal refused, with costs.

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Decision last updated: 25 October 2019