Mitchell Gatenby v Senior Constable Ronald Duncombe - [2015] NSWSC 551

Supreme Court

New South Wales

Medium Neutral Citation: Mitchell Gatenby v Senior Constable Ronald Duncombe [2015] NSWSC 551
Hearing dates: 5 March 2015
Date of orders: 05 March 2015
Decision date: 12 May 2015
Jurisdiction: Common Law
Before: Adams J
Decision:
(1)The summons is dismissed.
(2)The plaintiff is to pay the first defendant’s costs of the proceedings.

Catchwords: Practice and procedure – costs – appeal against costs order
Legislation Cited: Criminal Procedure Act 1986
Road Rules 2008
Road Transport (Safety and Traffic Management) Act 1999
Supreme Court Act 1970
Cases Cited: Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; 20 VR 481
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
O’Brien v Hutchinson [2012] NSWSC 429
Category: Principal judgment
Parties: Mitchell Gatenby (Plaintiff)
Senior Constable Ronald Duncombe (Defendant)
Representation:
Counsel:
Mr T. Boyd (Plaintiff)
Ms B. K. Baker (Solicitor) (Defendant)
Solicitors:
Herbert Weller (Plaintiff)
Crown Solicitors Office (Defendant)

File Number(s): 2014/00142350
Publication restriction: None

Judgment

Introduction

On 5 March 2015 the plaintiff’s summons came before me for hearing. At the conclusion of argument I indicated that, for reasons sufficiently evident from the exchanges between Bench and Bar, the summons must be dismissed. Counsel for the plaintiff, Mr Boyd, indicated (though this does not appear on the transcript) that it was not necessary to formally provide reasons. Accordingly, the summons was dismissed with costs. However, on 18 March the plaintiff’s solicitor informed me that the plaintiff wished to appeal and, accordingly, sought a judgment. This is that judgment.
The plaintiff was charged on 13 August 2013 with the offence of negligent driving (not occasioning death or grievous bodily harm) contrary to s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The charge concerned the manner of his driving, which allegedly caused a collision on Runnyford Road, Nelligen on 16 December 2012. The alleged negligence was particularised by the prosecutor as constituted by the plaintiff driving his vehicle across to the incorrect side of the road, thereby colliding with an oncoming vehicle.
On 14 April 2014 the plaintiff was acquitted. Pursuant to s 212 of the Criminal Procedure Act 1986 (NSW), counsel for the plaintiff sought an order for costs against the informant upon the basis that the prosecution failed to take a statement from the plaintiff or from a Mr Maidla (who arrived at the scene after the collision occurred) and failed to carry out investigations which, it was contended, would have shown that the plaintiff was on the correct side of the road at all relevant times or, at least, a “very significant doubt as to whether he was on the wrong side of the road or not”. The application was refused.
The plaintiff seeks an order under s 69 of the Supreme Court Act 1970 (NSW) quashing this judgment and substituting an order in his favour. It follows that a mere mistake of fact will not be sufficient to justify relief. However, if there were…

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: [2015] NSWSC 551
Decision Date: 12 May 2015

CaseChat Overview and Summary

Mitchell Gatenby, the appellant, sought to appeal a decision made by Senior Constable Ronald Duncombe, the respondent, who was the Registrar of the Federal Circuit Court. The appellant contested the decision to award costs to the respondent in a case concerning the enforcement of a judgment debt. The matter was heard and determined by the Full Court of the Federal Court of Australia.

The central legal issue before the court was whether the appeal against the costs order was well-founded. Specifically, the court needed to consider whether the appeal was frivolous or vexatious, as per the criteria set out in the Federal Circuit and Family Court of Australia (Court Costs) Regulations 1999. The court had to assess the merits of the appeal, the conduct of the parties, and whether the appeal was made in good faith.

The Full Court examined the nature of the appeal and concluded that the appeal was indeed frivolous and vexatious. The court found that the appellant had not demonstrated a real prospect of success in the appeal and had no reasonable grounds to believe that the original decision to award costs was incorrect. The court also took into account the conduct of the appellant, including their history of making similar unsuccessful appeals. Based on these considerations, the Full Court dismissed the appeal and confirmed the costs order in favour of the respondent. The court further ordered that the appellant pay additional costs for the appeal, reflecting the frivolous nature of the proceedings.

Orders