Hallaby v Harris - [2020] NSWCA 12

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hallaby v Harris [2020] NSWCA 12
Hearing dates: On the papers
Date of orders: 17 February 2020
Decision date: 17 February 2020
Before: Basten JA; McCallum JA
Decision:
(1)   Direct that the prosecutor/informant be identified as the first respondent.

(2)   Dismiss the summons seeking leave to appeal filed on 9 October 2019.
(3)   Order that the applicant pay the costs of the first respondent (Senior Constable Harris) and, on a submitting basis, the costs of the Local Court of New South Wales.
Catchwords:
APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs
CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d)
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 213, 214
Evidence Act 1995 (NSW), s 138
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
In Re the Will of FB Gilbert (1946) 46 SR(NSW) 318
Li v Attorney General of NSW [2019] NSWCA 95
Category: Principal judgment
Parties: Steven Hallaby (Applicant)
Senior Constable Paul Harris (First Respondent)
Local Court of New South Wales (Second Respondent)
Representation:
Counsel:
Mr A Boe / Mr D Fuller (Applicant)
Mr J King (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Younes + Espiner Lawyers (Applicant)
Hunt & Hunt Lawyers (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s): 2019/235960
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 840

Date of Decision:

9 July 2019

Before:

Emmett AJA

File Number(s):

2018/348868

Judgment

THE COURT: On 25 November 2016 the applicant was arrested outside his home and charged with assaulting a police officer in the execution of his duty. On 22 December 2017 the charge was dismissed by Magistrate Brender in the Local Court at the Downing Centre. The applicant sought an order that the prosecutor pay his costs pursuant to s 213 of the Criminal Procedure Act 1986 (NSW). On 13 April 2018 the magistrate dismissed that application.
On 13 November 2018 the applicant commenced proceedings in the supervisory jurisdiction of the Court seeking judicial review of the magistrate’s dismissal of the costs application. The matter came before Emmett AJA in the Common Law Division on 13 June 2019. By a judgment delivered on 9 July 2019 the applicant was granted an extension of time within which to commence the proceedings in the Supreme Court, but the proceedings were dismissed with costs. [1] The…

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 Hallaby v Harris

Details

AGLC: Hallaby v Harris [2020] NSWCA 12
Case: [2020] NSWCA 12
Decision Date: 17 February 2020

CaseChat Overview and Summary

The applicant, Mr Hallaby, sought leave to appeal against a judgment of the Supreme Court of New South Wales, which had refused to award him the costs of an unsuccessful prosecution he had initiated against a Mr Harris. The appeal concerned the supervisory jurisdiction of the Supreme Court and the principles governing judicial review of a magistrate's decision regarding the award of costs in summary proceedings.

The primary legal issues before the Court of Appeal were whether the Supreme Court had erred in its review of the magistrate's refusal to award costs to Mr Hallaby, and whether the magistrate had been correct in finding that the preconditions for awarding costs under section 214 of the *Criminal Procedure Act 1986* (NSW) were not met. Specifically, the court considered whether the prosecution had been initiated without reasonable cause or if the prosecutor lacked an honest belief in the guilt of the accused, which are grounds for awarding costs to a defendant in such circumstances.

Basten and McCallum JJA held that Mr Hallaby's application for leave to appeal was fundamentally flawed because it focused on the decision under review (the magistrate's refusal to award costs) rather than the judgment under appeal (the Supreme Court's decision upholding that refusal). The court found that the issues Mr Hallaby sought to raise were not the subject of the Supreme Court's judgment, and therefore, he had failed to demonstrate an error in the judgment under appeal. Consequently, the court dismissed the summons seeking leave to appeal and ordered Mr Hallaby to pay the costs of the first respondent and the Local Court.

Orders

Orders of the court

(1) Direct that the prosecutor/informant be identified as the first respondent.

(2) Dismiss the summons seeking leave to appeal filed on 9 October 2019.

(3) Order that the applicant pay the costs of the first respondent (Senior Constable Harris) and, on a submitting basis, the costs of the Local Court of New South Wales.

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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Medium Neutral Citation:	Hallaby v Harris [2020] NSWCA 12
Hearing dates:	On the papers
Date of orders:	17 February 2020
Decision date:	17 February 2020
Before:	Basten JA; McCallum JA
Decision:	(1) Direct that the prosecutor/informant be identified as the first respondent. (2) Dismiss the summons seeking leave to appeal filed on 9 October 2019. (3) Order that the applicant pay the costs of the first respondent (Senior Constable Harris) and, on a submitting basis, the costs of the Local Court of New South Wales.
Catchwords:	APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d)
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 213, 214 Evidence Act 1995 (NSW), s 138 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 In Re the Will of FB Gilbert (1946) 46 SR(NSW) 318 Li v Attorney General of NSW [2019] NSWCA 95
Category:	Principal judgment
Parties:	Steven Hallaby (Applicant) Senior Constable Paul Harris (First Respondent) Local Court of New South Wales (Second Respondent)
Representation:	Counsel: Mr A Boe / Mr D Fuller (Applicant) Mr J King (First Respondent) Submitting appearance (Second Respondent) Solicitors: Younes + Espiner Lawyers (Applicant) Hunt & Hunt Lawyers (First Respondent) Crown Solicitor’s Office (Second Respondent)
File Number(s):	2019/235960
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2019] NSWSC 840 Date of Decision: 9 July 2019 Before: Emmett AJA File Number(s): 2018/348868