Supreme Court
New South Wales
Medium Neutral Citation: McNamara v Fenner [2017] NSWSC 1746 Hearing dates: 4 December 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Common Law Before: Harrison J Decision: (1) Refuse leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001.
(2) Amended summons otherwise dismissed with costs.Catchwords: APPEAL – appeal from local court – where prosecutor withdrew all charges on first day of hearing – where plaintiff instead sought dismissal of charges and order for costs – where Magistrate refused to award costs following automatic dismissal – whether Magistrate’s orders were interlocutory or final – whether judicial review is available – whether Magistrate made an error of law or jurisdictional error Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Stock Diseases Regulation 2009
Supreme Court Act 1970Cases Cited: Bienstein v Bienstein [2003] HCA 7
Canceri v Taylor (1994) 123 ALR 667
CDW v LVE [2015] WASCA 247
Coles Supermarkets Australia v Antony Townsden [2009] NSWSC 1117
DPP v Shirvanian (1998) 44 NSWLR 129
Halpin v Department of Gaming and Racing [2007] NSWSC 815
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
O’Brien v Hutchinson [2012] NSWSC 429
Question of Law Reserved on Acquittal (3 of 1995) Michael Charles Baenisch (1996) 88 A Crim R 1
R v Feeney [2012] ACTSC 153
RP v DPP [2015] NSWSC 248Category: Principal judgment Parties: Michael McNamara (Plaintiff)
Detective Rodney Fenner (Defendant)Representation: Counsel:
Solicitors:
R Thomas (Plaintiff)
C Melis (Defendant)
A R Conolly & Company (Plaintiff)
Henry David York (Defendant)
File Number(s): 2017/177849 Publication restriction: Nil
Judgment
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HIS HONOUR: By his amended summons filed on 4 July 2017, Michael McNamara seeks leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 from the decision of Magistrate Michael O’Brien in the Local Court delivered on 18 May 2017. In the alternative, Mr McNamara seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970.
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Mr McNamara had been charged with 282 breaches of the Stock Diseases Regulation 2009 with respect to offences allegedly committed between January 2014 and January 2016. On the first day of what was to be a defended three day hearing of the charges at Inverell, the prosecutor sought to withdraw them all pursuant to s 208 of the Criminal Procedure Act 1986. Mr McNamara opposed that course and instead sought a dismissal of the charges pursuant to s 205 of that Act, together with a certificate pursuant to s 205(2) and an order for costs. His Honour permitted the prosecution to withdraw the charges pursuant to s 208, refused to make any alternative order pursuant to s 205 and declined to order the prosecution to pay Mr McNamara’s costs.
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Accordingly, Mr McNamara now seeks an order setting aside his Honour’s decision and asks that the charges be dismissed pursuant to s 205.…
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- AGLC
- McNamara v Fenner [2017] NSWSC 1746
- Case
- [2017] NSWSC 1746
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the orders made by the Magistrate were interlocutory or final. The court noted that if the orders were interlocutory, then they were open to judicial review. However, if they were final, then the plaintiff’s recourse would be to appeal to a higher court. The court also considered whether the Magistrate had made an error of law or a jurisdictional error, which would also render the orders open to judicial review. Ultimately, the court found that the orders were final, and therefore not open to judicial review. The court further found that the Magistrate had not made an error of law or a jurisdictional error in refusing to award costs to the plaintiff.
The court held that the orders made by the Magistrate were final, and therefore not open to judicial review. The court found that the Magistrate had not made an error of law or a jurisdictional error in refusing to award costs to the plaintiff. The court noted that the plaintiff had not demonstrated any exceptional circumstances that would warrant an award of costs following the automatic dismissal of charges. The court dismissed the appeal and ordered the plaintiff to pay the respondent’s costs of the appeal.
The court’s final orders were that the appeal be dismissed and that the plaintiff pay the respondent’s costs of the appeal. The court found that the orders made by the Magistrate were final and not open to judicial review. The court further found that the Magistrate had not made an error of law or a jurisdictional error in refusing to award costs to the plaintiff. The plaintiff was ordered to pay the respondent’s costs of the appeal.
Orders
Orders of the court
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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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