Korsman v Douglas Dick - [2000] NSWSC 398

CITATION: Korsman v Douglas Dick & Anor [2000] NSWSC 398

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12482 of 1999

HEARING DATE(S): 19 April 2000

JUDGMENT DATE: 16 May 2000

PARTIES :

Gregory Colin Korsman (Plaintiff)
v
Douglas Dick (First Defendant)
Ian North (Second Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : Local Court Nowra;
15 September 1999

LOWER COURT
JUDICIAL OFFICER : Douglas Dick, LCM

COUNSEL : Mr S Russell (Plaintiff)
N/A (First Defendant)
Mr S J Longhurst (Second Defendant)

SOLICITORS: Crown Solicitor - I V Knight (Plaintiff)
Crown Solicitor - I V Knight (First Defendant)
submitting appearance
Maguire & McInerney (Second Defendant)

CATCHWORDS: Dismissal of prosecution - was a decision made on a point of law - dismissal for lack of preparedness of prosecutor and inability to proceed further with prosecution - award of costs - "other exceptional circumstances".

LEGISLATION CITED: Fisheries Management Act 1994, s 18 (2), s 104 (7), Sch 1.
Justices Act 1902, s 81(4) (d), s 109.
Fisheries Management (General) Regulation 1995, cl 119A.

CASES CITED: Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors (1999) NSWCA 11.

DECISION: See paragraph 27.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 16 MAY 2000
12482 of 1999 GREGORY COLIN KORSMAN v DOUGLAS DICK & ANOR

JUDGMENT

1   The plaintiff laid certain Informations under the Fisheries Management Act 1994 (the Act). One related to an alleged offence against the original second defendant pursuant to section 18 (2). Another related to an alleged offence against the original third defendant pursuant to section 104 (7). The matters came on for hearing before the first defendant (a Local Court Magistrate sitting at Nowra).

2   The matters were listed for hearing and finally disposed of on 15 September 1999. Prior to that day, there had been adjournment granted on the application of the plaintiff.

3   A Police Prosecutor appeared on behalf of the plaintiff. The said second and third defendants were represented by counsel (Mr Longhurst). Both matters were dismissed and costs were awarded against the plaintiff.

4 On 13 October 1999, the plaintiff commenced these proceedings by Summons. The Summons sought inter alia the quashing of the orders made by the first defendant and a remitting of the matter back to the Local Court to be heard and determined according to law pursuant to s 109 of the Justices Act 1902.

5   The Summons was heard on 19 April 2000. On the day of hearing, the plaintiff filed in court a number of documents. There was an Amended Summons. There was a Notice of Discontinuance against the then second defendant. There was an affidavit sworn by Stephen Neil Hogan on 18 April 2000. In addition an Outline of Submissions was handed up to the court.
6   In the Amended Summons, Ian North (formerly the third defendant) became the second defendant. The relief sought was restricted to the offence alleged against him. It contained 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.

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Details

Case: [2000] NSWSC 398
Decision Date: 16 May 2000

CaseChat Overview and Summary

The case of Korsman v Douglas Dick involved a dispute concerning the dismissal of a prosecution. The defendant, Korsman, was prosecuted for an offence under the Crimes Act 1900 (NSW). The prosecution was dismissed by the court, and Korsman sought an award of costs, arguing that the dismissal was due to exceptional circumstances. The case was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to decide was whether the dismissal of the prosecution constituted "other exceptional circumstances" as per section 428D of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court was required to assess whether the dismissal was justified and whether the defendant was entitled to an award of costs. The court also had to determine the appropriate quantum of costs, if any, that should be awarded to the defendant.

The court found that the dismissal was not made on a point of law but rather due to the lack of preparedness of the prosecutor and their inability to proceed further with the prosecution. The court determined that the dismissal did not fall within the category of "other exceptional circumstances" as defined by the legislation. Consequently, the court refused the defendant's application for an award of costs. The court's reasoning was grounded in the understanding that the dismissal was not due to circumstances that warranted an award of costs under the statute.

The court's final orders were that the defendant's application for costs be dismissed. The court did not award any costs to the defendant, finding that the dismissal did not meet the criteria for "other exceptional circumstances" as outlined in the relevant legislation.

Orders