Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Orr v Hunter Quarries Pty Ltd (No 2) [2022] NSWCCA 138 Hearing dates: On the papers Date of orders: 22 June 2022 Decision date: 22 June 2022 Before: Beech-Jones CJ at CL at [1]
Walton J at [13]
Price J at [14]Decision: Steven James Orr is to pay the costs of Hunter Quarries Pty Ltd of and incidental to the referral to this Court of the questions that were ultimately determined in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Catchwords: COSTS – questions of law submitted by a prosecutor pursuant to s 5AE – prosecutor sought to “appeal” trial judge’s decision – costs order made – no question of principle
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Environment Protection Authorityv Grafil Pty Ltd; Environment Protection Authority v Mackenzie(No 2) [2019] NSWCCA 202
Orr v Cobar Management Pty Limited [2020] NSWCCA 220
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA 71
Category: Costs Parties: Stephen James Orr (Applicant)
Hunter Quarries Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
K Nomchong SC, C Magee (Applicant)
J Glissan QC, D Nagle (Respondent)
McCullough Robertson Lawyers (Applicant)
Lancaster Law & Mediation (Respondent)
File Number(s): 2016/266431 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 8 November 2019; 18 June 2020; 13 May 2021
- Before:
- Russell SC DCJ
- File Number(s):
- 2016/266431
Judgment
-
BEECH-JONES CJ at CL: On 2 March 2022, the Court published its judgment in relation to nine questions of law submitted for determination by the District Court sitting in its summary jurisdiction, pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39; “Orr v Hunter (No 1)”).
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On about 9 March 2022, the respondent, Hunter Quarries Pty Ltd (“Hunter Quarries”), filed an application pursuant to r 3.15 of the Supreme Court (Criminal Appeal) Rules 2021 for an order that the applicant in this Court, Steven James Orr, pay its costs of and incidental to the referral of those questions. Mr Orr was the prosecutor in the proceedings at first instance. Following judgment in Orr v Hunter (No 1), Hunter Quarries was acquitted.
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Section 5AE(2) of the Criminal Appeal Act provides that where a point of law stated during summary proceedings is referred to this Court, then following its determination of those questions the Court may “make any such order or give any … direction to the court [below] concerned as it thinks fit”. This provision has been construed so as to authorise this Court to make an order for costs following the determination of the questions submitted under s 5AE(1) (see Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA…
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- Case
- [2022] NSWCCA 138
- Decision Date
CaseChat Overview and Summary
The court held that the prosecutor's application did not constitute an appeal as defined by the legislation. Instead, it was a request for the court to reconsider the costs order, which the court interpreted as a procedural matter rather than a substantive appeal. The court further reasoned that since the questions of law submitted did not raise a matter of principle, the prosecutor's application was not permissible under section 5AE. The trial judge's decision on costs was therefore affirmed, and the prosecutor's application was dismissed.
In its decision, the court made it clear that the prosecutor's actions did not align with the provisions of section 5AE, which requires the submission of questions of law that involve a matter of principle. The court emphasised that the prosecutor's role in submitting questions of law was limited to ensuring that the trial judge had correctly applied the law, and the court's role was to review the trial judge's application of the law, not to conduct a de novo review of the trial judge's decision. The court's final orders confirmed that the costs order made by the trial judge was upheld, and the prosecutor's application was dismissed without costs.
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
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Ratio Decidendi
Legal Principle Established
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