Marino v The Commissioner of Police, NSW Police Force

[2021] NSWSC 680

Supreme Court

New South Wales

Medium Neutral Citation:

Marino v The Commissioner of Police, NSW Police Force [2021] NSWSC 680

Hearing dates:

26 April 2021

Date of orders:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

I order that Mr Marino bear the Commissioner’s costs of the proceedings, as agreed or assessed.

Catchwords:

COSTS — Party/Party — Costs orders on appeal

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 26

Cases Cited:

Duraisamy v Sydney Trains [2019] NSWCA 269

Marino v The Commissioner of Police, NSW Police Force [2021] NSWSC 468

Northern Territory v Sangare (2019) 265 CLR 164

Oshlack v Richmond River Council (1998) 193 CLR 72

Category:

Costs

Parties:

Mr Marino (Plaintiff)
The Commissioner of Police, NSW Police Force (Defendant)

Representation:

Counsel:
Mr R Coffey (Defendant)

Mr Marino (Self-Represented) (Plaintiff)

Solicitors:
Sparke Helmore Lawyers (Defendant):

File Number(s):

2021/7958

Judgment

1. On 26 April 2021 I gave Mr Marino leave to file the appeal out of time and to appeal an interlocutory order but dismissed his appeal: Marino v The Commissioner of Police, NSW Police Force [2021] NSWSC 468. The parties have now advanced written submissions as to the costs which the Commissioner seeks.

2. For the following reasons I am satisfied that the usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW), that costs follow the event, cannot be departed from, with the result that Mr Marino must bear the costs of his unsuccessful appeal.

3. The appeal raised questions as to the proper construction of s 26 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), whether the Uniform Civil Procedure Rules governed the proceedings in the Local Court and whether the reasons given for the refusal of Mr Marino’s application had been adequate.

4. Leave to appeal was given because of the questions of law raised by Mr Marino’s appeal. But, as the Commissioner submitted, that is not a reason to depart from the usual costs order.

5. The submissions which Mr Marino advanced concerned events he considered to be relevant to the proceedings in the Local Court, including overseas travel which he believed Mrs Bello and her family may have pursued. Those matters are not relevant to what arises to be decided on the question of costs of the appeal and do not provide a basis upon which there can justly be a departure from the usual order.

6. Such an order is intended to compensate the party in whose favour it is made, not to punish the party against whom it is made: Northern Territory v Sangare (2019) 265 CLR 164 at [25]. Here there was no disentitling conduct on the part of the Commissioner, which might have warranted a departure from the usual order: Oshlack v Richmond River Council (1998) 193 CLR 72.

7. Even that Mr Marino appeared unrepresented is not a proper basis for a departure from the usual order: Duraisamy v Sydney Trains [2019] NSWCA 269 at [25].

8. In the result the order which the Commissioner seeks must be made.

Orders

9. For these reasons I order that Mr Marino bear the Commissioner’s costs of the proceedings, as agreed or assessed.