NSW Police v JG (No 2) - [2013] NSWLC 32

Local Court

New South Wales

Medium Neutral Citation: NSW Police v JG (No 2) [2013] NSWLC 32
Hearing dates: 03/12/2013
Decision date: 17 December 2013
Jurisdiction: Civil
Before: Magistrate Buscombe
Decision:
The applicant is to pay the respondent's costs as assessed

Catchwords: APPLICATION PROCEEDINGS - application for forensic procedure - special jurisdiction, Part 4 Local Court Act 2007 - power to make costs order - where application marked "no jurisdiction"
Legislation Cited: Crimes Act 1900
Crimes (Forensic Procedures) Act 2000
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Justices Act 1902
Local Court Act 2007
Cases Cited: DPP v Goben [1999] NSWSC 696
DPP v Shirvanian (1998) 44 NSWLR 129
DPP (NSW) v Roslyndale Shipping Co Pty Ltd (2004) 148 A Crim R 341
Grassby v R (1989) 168 CLR 1
Markisic v Vizza [2002] NSWCCA 53
Proust v Blake (1989) 17 NSWLR 267
Sasterawan v Morris [2010] NSWCCA 91
Category: Costs
Parties: NSW Police (applicant)
JG (respondent)
Representation: Mr Dhanji SC (for the respondent)
Sgt Zervas (for the applicant)

File Number(s): 2013/163037

Judgment

On 22 November 2013 I delivered a judgment in which I held that the applicant's application for a forensic procedure order under the Crimes (Forensic Procedures) Act 2000 (the Act) was invalid and a nullity, and marked the application "no jurisdiction".

The respondent has made an application that I order the applicant to pay the costs of the application. The relevant statutory provision governing costs in application proceedings is s 69 of the Local Court Act2007 which provides as follows:

(1) The Court may award costs in application proceedings at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings.

(2) The Court may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on an indemnity basis.

(3) This section is subject to this Act, the rules and any other Act.

In my opinion, given my findings that the application was invalid and a nullity, an issue arises as to whether there is any power to award costs under s 69 of the Local Court Act. In that regard I drew the parties' attention to the decision of James J in DPP v Goben [1999] NSWSC 696. The respondent sought to distinguish Goben and relied upon Proust v Blake (1989) 17 NSWLR 267, Markisic v Vizza [2002] NSWCCA 53, DPP(NSW) v Roslyndale Shipping Co Pty Ltd (2004) 148 A Crim R 341, and Sasterawan v Morris [2010] NSWCCA 91.

I turn then to consider the authorities.

In Proust v Blake an optometrist had been convicted of a regulatory offence by a magistrate. He commenced proceedings in the Supreme Court under s 112 of the then Justices Act1902 seeking an order in the nature of prohibition. A single judge dismissed that application. The optometrist then filed a summons for…

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: [2013] NSWLC 32
Decision Date: 17 December 2013

CaseChat Overview and Summary

In the case of NSW Police v JG (No 2), the applicant, the NSW Police, sought an order for a forensic procedure under the Special Jurisdiction, Part 4 of the Local Court Act 2007. The respondent, JG, opposed the application, leading to a dispute over the court's jurisdiction and the applicability of the forensic procedure. The matter was brought before the Local Court to resolve these issues.

The primary legal issues before the court were whether the application was appropriately marked and whether the court had jurisdiction to order the forensic procedure. The court had to determine if the application was made under the correct part of the Act and whether it fell within the court's authority to make such an order. Furthermore, the court had to consider the implications of marking the application "no jurisdiction" and whether this impacted the applicant's ability to seek costs from the respondent.

The court found that the application was incorrectly marked, which affected its jurisdiction to proceed with the forensic procedure. Given the error in marking, the court held that it lacked the jurisdiction to make the order sought. Consequently, the court ruled that the respondent was entitled to costs as the application was fundamentally flawed. The court emphasised the importance of correctly marking applications to ensure proper jurisdiction and legal process.

In light of the findings, the court ordered that the applicant, the NSW Police, pay the respondent's costs as assessed. This decision underscored the necessity of procedural accuracy in legal applications and the consequences of failing to adhere to jurisdictional requirements.

Orders

Orders of the court

The applicant is to pay the respondent's costs as assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NSW Police v JG (No 2) [2013] NSWLC 32
Hearing dates:	03/12/2013
Decision date:	17 December 2013
Jurisdiction:	Civil
Before:	Magistrate Buscombe
Decision:	The applicant is to pay the respondent's costs as assessed
Catchwords:	APPLICATION PROCEEDINGS - application for forensic procedure - special jurisdiction, Part 4 Local Court Act 2007 - power to make costs order - where application marked "no jurisdiction"
Legislation Cited:	Crimes Act 1900 Crimes (Forensic Procedures) Act 2000 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Justices Act 1902 Local Court Act 2007
Cases Cited:	DPP v Goben [1999] NSWSC 696 DPP v Shirvanian (1998) 44 NSWLR 129 DPP (NSW) v Roslyndale Shipping Co Pty Ltd (2004) 148 A Crim R 341 Grassby v R (1989) 168 CLR 1 Markisic v Vizza [2002] NSWCCA 53 Proust v Blake (1989) 17 NSWLR 267 Sasterawan v Morris [2010] NSWCCA 91
Category:	Costs
Parties:	NSW Police (applicant) JG (respondent)
Representation:	Mr Dhanji SC (for the respondent) Sgt Zervas (for the applicant)
File Number(s):	2013/163037