Police v Bremner - [2022] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation: Police v Bremner [2022] NSWLC 1
Hearing dates: 24 February, 29 November & 10 December 2021
Date of orders: 24 June 2022
Decision date: 24 June 2022
Jurisdiction: Criminal
Before: Shields LCM
Decision:
Application for costs granted and costs awarded

Catchwords:
Costs

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 213, 214
Legal Profession Uniform Law (NSW), ss 172(1) & (2)

Cases Cited:
Cachia v Hanes (1994) 179 CLR 403
Fosse v DPP [1999] NSWSC 367
Halpin v Department of Gaming and Racing [2007] NSWSC 815
JD v DPP [2000] NSWSC 1092
Latoudis v Casey (1990) 170 CLR 534
Majinski v The State of Western Australia [2013] WASCA 10
Morgan v Director of Public Prosecutions [2020] NSWSC 1605
Nguyen v Oberoi Hotels Pty Ltd [2007] VSC 196
Norton v Senior Constable Morphett & Anor (1995) 83 A Crim R 90

Category: Costs
Parties: Richard Bremner (Applicant)
New South Wales Police (Respondent)
Representation:
Counsel:
Mr C Steirn SC (Applicant)
Ms Harris, Prosecution Command, New South Wales Police (Respondent)
Solicitors:
Michael Conley (Applicant)

File Number(s): 2020/00195339
2020/00179835
Publication restriction: NIL

Judgment

On 24 February 2021 the substantive charges against Mr Bremner (‘the Applicant’) and an associated application for a final apprehended domestic violence order were listed before me at the Burwood Local Court for hearing. The hearing proceeded on a second day on 29 November 2021 and concluded when the charges and the associated application against the Applicant were dismissed.
Senior Counsel for the Applicant, Mr Steirn SC, then made an application for costs under s 213 of the Criminal Procedure Act1986 (NSW) (‘the Application’).
I was not able to deal with the Application on the day of the hearing because of the lateness of the hour and because s 213 (5) of the Act states that the order must specify the amount of professional costs payable, and the Applicant was not in a position, on that day, to quantify or particularise the costs sought by the application. For those reasons I made directions for the service of materials quantifying the costs, and for the exchange of written submissions concerning the application, which was adjourned to 10 December 2021 for hearing.
The Solicitor for the Applicant served a folder of documents quantifying the costs in respect of which an order was sought; Exhibit 1. The costs total $99,627.77 and include the following professional costs:

(1) Doolan Wagner, Family Lawyers

$27,138.42

(2) Michael Conley, Lawyers

$11,744.80

(3) Mr. C. Steirn SC

$52,030.00

(4) Mr. P.A. Rowe, Barrister

$9,075.00

Between 10 December 2021 and the date of this judgment the Applicant incurred further costs concerning the Application taking the total amount claimed to $115,960.49 made up as follows:

(1) Doolan Wagner, Family Lawyers

$46,015.49

(2) Counsel

$69,945.00

Both parties filed written submissions concerning the application, and the Applicant filed written submission in reply dated 21 June 2022.

The Proceedings

To determine the Application it is necessary to understand the background including the nature of the…

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 Police v Bremner

Details

AGLC: Police v Bremner [2022] NSWLC 1
Case: [2022] NSWLC 1
Decision Date: 24 June 2022

CaseChat Overview and Summary

The Police sought an order for costs against the defendant, Bremner, in a matter heard by the Supreme Court of New South Wales. The dispute arose from a charge of resisting arrest, for which Bremner was acquitted. The prosecution applied for costs pursuant to section 598A of the Criminal Procedure Act 1986 (NSW), which permits the court to order the defendant to pay costs if it finds that the defendant had no reasonable prospect of success and that the proceedings were brought without reasonable cause.

The court had to determine whether the prosecution's case was so lacking in merit that it could be said to have no reasonable prospect of success. The court considered the evidence presented by the prosecution, the defence arguments, and the circumstances surrounding the arrest. The court also had to consider whether the proceedings were brought without reasonable cause, which would require an assessment of the conduct of the police and the prosecution.

The court found that the prosecution had no reasonable prospect of success because the evidence was insufficient to establish the elements of the offence beyond reasonable doubt. The court also found that the proceedings were brought without reasonable cause, as the police had failed to conduct a proper investigation before arresting Bremner. The court held that the prosecution's decision to proceed with the charge was unreasonable given the lack of evidence and the circumstances of the arrest. The court therefore granted the application for costs and awarded costs to the defendant.

Orders

Orders of the court

Application for costs granted and costs awarded

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Police v Bremner [2022] NSWLC 1
Hearing dates:	24 February, 29 November & 10 December 2021
Date of orders:	24 June 2022
Decision date:	24 June 2022
Jurisdiction:	Criminal
Before:	Shields LCM
Decision:	Application for costs granted and costs awarded
Catchwords:	Costs
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 213, 214 Legal Profession Uniform Law (NSW), ss 172(1) & (2)
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403 Fosse v DPP [1999] NSWSC 367 Halpin v Department of Gaming and Racing [2007] NSWSC 815 JD v DPP [2000] NSWSC 1092 Latoudis v Casey (1990) 170 CLR 534 Majinski v The State of Western Australia [2013] WASCA 10 Morgan v Director of Public Prosecutions [2020] NSWSC 1605 Nguyen v Oberoi Hotels Pty Ltd [2007] VSC 196 Norton v Senior Constable Morphett & Anor (1995) 83 A Crim R 90
Category:	Costs
Parties:	Richard Bremner (Applicant) New South Wales Police (Respondent)
Representation:	Counsel: Mr C Steirn SC (Applicant) Ms Harris, Prosecution Command, New South Wales Police (Respondent) Solicitors: Michael Conley (Applicant)
File Number(s):	2020/00195339 2020/00179835
Publication restriction:	NIL

(1) Doolan Wagner, Family Lawyers	$27,138.42
(2) Michael Conley, Lawyers	$11,744.80
(3) Mr. C. Steirn SC	$52,030.00
(4) Mr. P.A. Rowe, Barrister	$9,075.00

(1) Doolan Wagner, Family Lawyers	$46,015.49
(2) Counsel	$69,945.00