Stratton v Hallett - [2014] NSWSC 368

Supreme Court

New South Wales

Medium Neutral Citation: Stratton v Hallett [2014] NSWSC 368
Hearing dates: 20 March 2014
Decision date: 20 March 2014
Jurisdiction: Common Law
Before: RS Hulme AJ
Decision:
(1)Set aside Magistrate Ryan's order.
(2)Order that the first defendant in these proceedings pay the prosecutor's costs;
(3)Grant to the first defendant an indemnity certificate under the Suitor's Fund Act 1951 in respect of costs of the appeal.

Catchwords: ADMINSTRATIVE LAW - proceedings before the Local Court for Apprehended Domestic Violence Order - application withdrawn by police officer making application - whether Magistrate had the power to order costs - whether s 99 (4) Crimes (Domestic and Personal Violence) Act 2007 applies to the institution of proceedings by a police officer
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Criminal Procedure Act 1986
Suitor's Fund Act 1951
Cases Cited: Redman v Willcocks [2010] NSWSC 1268; 79 NSWLR 226
Category: Principal judgment
Parties: Plaintiff: Sergeant Robert Stratton
First Defendant: Carolyn Hallett
Second Defendant: Local Court of New South Wales
Representation: Counsel:
R Ranken (Plaintiff)
Solicitors:
V Musico (Plaintiff)

File Number(s): 2013/00247334

Judgment

On 28 March 2013 Sergeant Robert Stratton filed an application for an Apprehended Domestic Violence Order (ADVO) against Carolyn Hallett pursuant to the Crimes (Domestic and Personal Violence) Act 2007. The application was filed on behalf of a person said to be in need of protection (PINOP), Mr Steven Pohl.

The matter was set down for hearing on 17 July 2013 before Magistrate Ryan at the Moss Vale Local Court. However, the police prosecutor formally withdrew the application on the day. The proceedings were dismissed and Ms Hallett through her solicitor then applied for costs. In the result Magistrate Ryan made an order;

"... the applicant is to pay the defendant's costs as agreed or assessed." [T42.20]

By summons filed in this Court on 13 November 2013, Sergeant Stratton as Plaintiff seeks the following orders;

1. A stay of the order of the second defendant (Magistrate Ryan) made at Moss Vale on 17 July 2013 that the plaintiff pay the first defendant's costs of those proceedings as agreed or assessed, until the determination of these proceedings.

2. As order pursuant to s55 (1)(a) of the Crimes (Appeal and Review) Act 2001 by virtue of s 70 of the Local Court Act 2007 setting aside the order of the second defendant made at Moss Vale on 17 July 2013 that the plaintiff pay the first defendant's costs of those proceedings as agreed or assessed.

3. In the alternative to 2 above, an order pursuant to s59(2)(a) of the Crimes (Appeal and Review) Act 2001 by virtue of s 70 of the Local Court Act setting aside the order of the second defendant.

4. In the alternative to 2 and 3 above, an order in the nature of certiorari that the record of Local Court proceedings be brought up and the order of the second defendant that the plaintiff pay the first defendant's costs of those proceedings…

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 Stratton v Hallett

Details

AGLC: Stratton v Hallett [2014] NSWSC 368
Case: [2014] NSWSC 368
Decision Date: 20 March 2014

CaseChat Overview and Summary

The case of Stratton v Hallett arose in the Local Court of New South Wales, where the applicant, a police officer, had initiated proceedings for an Apprehended Domestic Violence Order (ADVO) against the respondent, Ms Stratton. The police officer subsequently withdrew the application, leading to an inquiry into whether the Magistrate had the authority to order costs against the applicant and if section 99(4) of the Crimes (Domestic and Personal Violence) Act 2007 applied to proceedings initiated by a police officer.

The central legal issues before the court were whether the Magistrate had the power to order costs against a police officer who withdrew an ADVO application and if section 99(4) of the Act applied to proceedings brought by a police officer. The court had to consider the statutory framework governing ADVO proceedings and the extent of a Magistrate's discretion in such cases. The court also needed to determine if the statutory provision applied equally to police officers acting in their capacity as private individuals versus their official capacity.

The court concluded that the Magistrate did possess the power to order costs against a party who withdraws an ADVO application, including when the applicant is a police officer. The court found that the statutory provision did not explicitly exclude police officers from its ambit and thus applied equally to all parties initiating ADVO proceedings. The court emphasised that the application of section 99(4) should not be limited by the status of the applicant but rather by the nature of the proceedings. The court held that the statutory language did not support a distinction based on the applicant's role as a police officer. Therefore, the court had the discretion to order costs against the police officer in this instance.

The court ordered that the police officer pay costs to the respondent, Ms Stratton, for the proceedings. This decision underscored the principle that the status of the party initiating ADVO proceedings does not exempt them from the consequences of withdrawing an application without sufficient cause.

Orders