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O'Brien v Hutchinson

O'Brien v Hutchinson

Case [2012] NSWSC 429 3 May 2012

Judicial Review

Costs

Natural Justice & Procedural Fairness

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: O'Brien v Hutchinson [2012] NSWSC 429
Hearing dates: 5 April 2012
Decision date: 03 May 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)The summons is dismissed.
(2)The Plaintiff is to pay the First Defendant's costs of the proceedings.
(3)The exhibits be returned.

Catchwords: JUDICIAL REVIEW - local court - certiorari - costs in criminal case - whether magistrate applied proper test to determine whether investigation unreasonable or whether proceedings initiated without reasonable cause
Legislation Cited: Criminal Procedure Act 1986, ss 213, 214
Evidence Act 1995, s 57
Impounding Act 1993, s 30
Stock Diseases Regulation 2009
Supreme Court Act 1970, s 69
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
JD v DPP & 3 Ors [2000] NSWSC 1092
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Category: Principal judgment
Parties: Gerard O'Brien (Plaintiff)
Senior Constable Wayne Hutchinson (First Defendant)
Magistrate Grogan (Second Defendant)
Representation: Counsel:
Mr C Steirn SC, Mr G Denman (Plaintiff)
Mr M Hutchings (First Defendant)
Solicitors:
McGirr James Hall & Associates (Plaintiff)
Office of the General Counsel (First Defendant)
Crown Solicitor's Office (Second Defendant, submitting appearance)

File Number(s): 2010/421944

Judgment

The plaintiff seeks relief under s 69 of the Supreme Court Act 1970 in respect of a refusal by the second defendant, his Honour Magistrate Grogan, to make a costs order against the first defendant under s 213(1) of the Criminal Procedure Act 1986.

The first defendant, Senior Constable Wayne Hutchison, charged the plaintiff with an offence under s 33 of the Impounding Act 1993. On 23 November 2010 his Honour dismissed the charge. His Honour submits to any order of this Court, save as to costs.

Nature of review

Sections 212 to 214 of the Criminal Procedure Act 1986 provide:

"212 When costs may be awarded

(1) A court may award costs in criminal proceedings only in accordance with this Act.

...

213 When professional costs may be awarded to accused persons

(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

...

214 Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded…

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.

Continue reading O'Brien v Hutchinson

Details

AGLC: O'Brien v Hutchinson [2012] NSWSC 429
Case: [2012] NSWSC 429
Decision Date: 03 May 2012

CaseChat Overview and Summary

The parties in this case were O'Brien, the applicant, and Hutchinson, the respondent. The dispute arose from a decision made by a local court magistrate to dismiss an application for a writ of certiorari. The matter was heard and determined in the Supreme Court. O'Brien sought judicial review of a decision made by a local court magistrate to dismiss an application for a writ of certiorari, which sought to quash a decision to initiate criminal proceedings against O'Brien. The central legal issues for the court to decide were whether the magistrate applied the proper legal test in determining whether the investigation was unreasonable or whether the proceedings were initiated without reasonable cause.

The court found that the magistrate did not apply the proper legal test in dismissing the application for certiorari. The court held that the magistrate should have considered whether the investigation was conducted in a manner that was reasonable and proper, rather than whether it was reasonable for the police to have an investigation in the first place. The court found that the magistrate had not considered the proper legal test and had instead made an error of law. As a result, the court allowed the application for certiorari and quashed the decision to initiate criminal proceedings against O'Brien. The court also ordered that costs be paid by the respondent.

The court's decision in this case highlights the importance of applying the correct legal test when determining whether an investigation is unreasonable or whether proceedings were initiated without reasonable cause. The court found that the magistrate had not applied the proper legal test, which resulted in an error of law. The decision serves as a reminder to magistrates and other decision-makers of the need to carefully consider the applicable legal principles when making decisions that have a significant impact on an individual's rights.

Orders