Queanbeyan City Council v Kovacevic (No 2) - [2015] NSWLEC 196

Land and Environment Court

New South Wales

Medium Neutral Citation: Queanbeyan City Council v Kovacevic (No 2) [2015] NSWLEC 196
Hearing dates: 10 December 2015
Date of orders: 10 December 2015
Decision date: 10 December 2015
Jurisdiction: Class 6
Before: Craig J
Decision:
Order that the Respondent, Mary Lucy Kovacevic, pay the costs of the Council in relation to her application for a stated case, such costs to be paid on an indemnity basis.

Catchwords: COSTS – application for a stated case – s 5BA(2) Criminal Appeal Act 1912 –application withdrawn – motion seeking costs of withdrawn application – no proper basis to found stated case – order for indemnity costs
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Cases Cited: Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; 46 FCR 225
Environment Protection Authority v Riverina Australia Pty Ltd (No 2) [2015] NSWCCA 252
Queanbeyan City Council v Kovacevic [2015] NSWLEC 152
Talay v R [2010] NSWCCA 308
Category: Procedural and other rulings
Parties: Queanbeyan City Council (Appellant)
Mary Lucy Kovacevic (Respondent)
Representation:
Counsel:
T To (Appellant)
No appearance (Respondent)
Solicitors:
Herring & Associates Lawyers (Appellant)
No appearance (Respondent)

File Number(s): 61062 of 2012

EX TEMPORE Judgment

On 25 September last I upheld an appeal by Queanbeyan City Council (the Council) from the decision of the Local Court at Queanbeyan, dismissing a prosecution brought by Queanbeyan City Council against Mary Lucy Kovacevic. I also made orders remitting the matter to the Local Court for determination according to law and ordered that Mrs Kovacevic pay the costs of the appeal (Queanbeyan City Council v Kovacevic [2015] NSWLEC 152).
In a short letter dated 14 October 2015 addressed to the Registrar of this Court, the solicitors acting for Mrs Kovacevic requested that four questions of law “be stated for the Court of Criminal Appeal for determination”. The letter then framed the four questions that were thought appropriate for determination by that Court. The request for those questions to be stated was expressed to be founded upon s 5BA(2) of the Criminal Appeal Act 1912 (NSW).
The solicitors acting for Mrs Kovacevic were promptly advised that the draft of a “stated case” raising the proposed questions should be prepared, provided to the Court and to the Council (cf r 29, Criminal Appeal Rules). They were also advised that the application for a “stated case” would be listed for mention before me when the Council would also be afforded an opportunity to be heard in respect of that proposed stated case (Talay v R [2010] NSWCCA 308 at [11]). A draft of the “stated case” was subsequently received and the matter listed for mention before me on 28 October last.
On 28 October each party was represented by counsel. Mr To, who appeared for the Council, handed to me an outline of submissions he intended to make contending that s 5BA(2) did not afford any right in…

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.

Keep reading for free

Create a free CaseChat account to read Queanbeyan City Council v Kovacevic (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 196
Decision Date: 10 December 2015

CaseChat Overview and Summary

The appeal before the NSW Court of Appeal was brought by Queanbeyan City Council against Mary Lucy Kovacevic. The Council sought an order that Kovacevic pay the costs of the Council in relation to her application for a stated case, on an indemnity basis. The primary judge had ordered that the costs be paid on an ordinary basis. The central legal issue was whether the indemnity costs order was appropriate, considering the circumstances of the case. The Council argued that the indemnity basis was warranted due to the nature of the application and the conduct of Kovacevic. The Court of Appeal assessed the arguments and examined the relevant legal principles concerning costs orders. The Court found that the circumstances of the case did not warrant an indemnity costs order, and that the ordinary basis was sufficient. The appeal was dismissed, and the order for costs on an ordinary basis was upheld. The Court held that the primary judge's assessment of the appropriate costs basis was not erroneous.

Orders

Orders of the court

Order that the Respondent, Mary Lucy Kovacevic, pay the costs of the Council in relation to her application for a stated case, such costs to be paid on an indemnity basis.

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:	Queanbeyan City Council v Kovacevic (No 2) [2015] NSWLEC 196
Hearing dates:	10 December 2015
Date of orders:	10 December 2015
Decision date:	10 December 2015
Jurisdiction:	Class 6
Before:	Craig J
Decision:	Order that the Respondent, Mary Lucy Kovacevic, pay the costs of the Council in relation to her application for a stated case, such costs to be paid on an indemnity basis.
Catchwords:	COSTS – application for a stated case – s 5BA(2) Criminal Appeal Act 1912 –application withdrawn – motion seeking costs of withdrawn application – no proper basis to found stated case – order for indemnity costs
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules
Cases Cited:	Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; 46 FCR 225 Environment Protection Authority v Riverina Australia Pty Ltd (No 2) [2015] NSWCCA 252 Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 Talay v R [2010] NSWCCA 308
Category:	Procedural and other rulings
Parties:	Queanbeyan City Council (Appellant) Mary Lucy Kovacevic (Respondent)
Representation:	Counsel: T To (Appellant) No appearance (Respondent) Solicitors: Herring & Associates Lawyers (Appellant) No appearance (Respondent)
File Number(s):	61062 of 2012