Tosson Mahmoud v Vincent Sutherland - [2013] NSWDC 140

District Court

New South Wales

Medium Neutral Citation: Tosson MAHMOUD v Vincent SUTHERLAND [2013] NSWDC 140
Decision date: 07 June 2013
Before: Cogswell SC DCJ
Decision:
Appeal upheld. Costs order set aside.

Catchwords: Court of Appeal remitted matter of costs in apprehended violence order to District Court for re-determination according to law - Court of Appeal held applicable law (s 99(3) Crimes (Domestic and Personal Violence) Act 2007) overlooked - original application for apprehended personal violence order - order sought by one occupant of a premises against another - Court of Appeal assumption contrary to terms of s 99(3) - District Court nevertheless bound by decision of Court of Appeal - application found not to be frivolous or vexatious - costs order of magistrate set aside. Both parties unrepresented litigants - judge sought Crown Solicitor's assistance as amicus curiae - Crown Solicitor's Office declined to appear but briefed counsel as amicus. Procedure - judges - disqualification for bias - application dismissed - proceedings not interfered with by strangers to litigation - relevant documents marked for identification and communications fully disclosed. Costs - application to have costs paid by strangers to litigation rejected - compensation for loss of time of litigants in person cannot constitute costs. Application for special leave to appeal to the High Court from Court of Appeal decision in the same case no impediment in this case to District Court judge proceeding to determine case.
Legislation Cited: Crimes (Appeal and Review) Act 2001, s 20.
Crimes (Domestic and Personal Violence) Act 2007, ss 99(1), 99(2), 99(3).
Cases Cited: Cachia v Hanes (1994) 179 CLR 403.
DAR v Director of Public Prosecutions (Qld) [2008] QCA 309.
Mahmoud v Sutherland [2012] NSWCA 306.
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166.
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1.
Category: Principal judgment
Parties: Tosson Mahmoud (Appellant)
Vincent Sutherland (Respondent)
Representation: Counsel:
A. Mitchelmore (Amicus Curiae)
In person (Appellant)
In person (Respondent)

File Number(s): DC 2009/327342

Judgment

This is a case which started in the Local Court and is now on its way to the High Court of Australia. It has passed through this Court twice. This is the second occasion. At this stage I am called to give a judgment on a particular issue.

I should explain something about the background first. Mr Mahmoud and Mr Sutherland live in the same block of units in Sydney. A dispute arose between them. Mr Mahmoud obtained an apprehended personal violence order against Mr Sutherland. The apprehended personal violence order application went to the Local Court and was heard by a magistrate. The magistrate dismissed Mr Mahmoud's application. Not only that, the magistrate ordered Mr Mahmoud to pay Mr Sutherland's legal costs. The costs were over $4,000.

Mr Mahmoud appealed to the District Court against the magistrate's decision. The case came on before his Honour Judge Knox SC. His Honour heard the appeal and dismissed it. Mr Mahmoud…

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.

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Details

Case: [2013] NSWDC 140
Decision Date: 07 June 2013

CaseChat Overview and Summary

In Tosson Mahmoud v Vincent Sutherland, the parties were involved in a dispute over an apprehended violence order in the context of domestic and personal violence. The case reached the Court of Appeal, which remitted the matter of costs in the apprehended violence order to the District Court for re-determination according to law. The appeal arose from the original application for an apprehended personal violence order by one occupant of a premises against another, where the Court of Appeal identified that the applicable law under section 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 had been overlooked.

The legal issues the court had to address included whether the Court of Appeal's assumption was contrary to the terms of section 99(3) and whether the District Court was bound by the Court of Appeal's decision despite the oversight. Additionally, the court needed to determine if the application was frivolous or vexatious, which would affect the costs order. Both parties were unrepresented litigants, leading the judge to seek assistance from the Crown Solicitor's Office, which initially declined to appear but subsequently briefed counsel as amicus curiae.

The Court of Appeal held that the District Court was indeed bound by the Court of Appeal's decision but noted the assumption was contrary to the statutory terms. The application was found not to be frivolous or vexatious, and thus, the magistrate's costs order was set aside. The court also dismissed an application for disqualification for bias, as the proceedings had not been interfered with by strangers to the litigation. Relevant documents were marked for identification, and all communications were fully disclosed. The appeal was upheld, and the costs order was set aside, paving the way for the District Court to re-determine the costs according to the applicable law.

Orders

Orders of the court

Appeal upheld. Costs order set aside.

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

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Medium Neutral Citation:	Tosson MAHMOUD v Vincent SUTHERLAND [2013] NSWDC 140
Decision date:	07 June 2013
Before:	Cogswell SC DCJ
Decision:	Appeal upheld. Costs order set aside.
Catchwords:	Court of Appeal remitted matter of costs in apprehended violence order to District Court for re-determination according to law - Court of Appeal held applicable law (s 99(3) Crimes (Domestic and Personal Violence) Act 2007) overlooked - original application for apprehended personal violence order - order sought by one occupant of a premises against another - Court of Appeal assumption contrary to terms of s 99(3) - District Court nevertheless bound by decision of Court of Appeal - application found not to be frivolous or vexatious - costs order of magistrate set aside. Both parties unrepresented litigants - judge sought Crown Solicitor's assistance as amicus curiae - Crown Solicitor's Office declined to appear but briefed counsel as amicus. Procedure - judges - disqualification for bias - application dismissed - proceedings not interfered with by strangers to litigation - relevant documents marked for identification and communications fully disclosed. Costs - application to have costs paid by strangers to litigation rejected - compensation for loss of time of litigants in person cannot constitute costs. Application for special leave to appeal to the High Court from Court of Appeal decision in the same case no impediment in this case to District Court judge proceeding to determine case.
Legislation Cited:	Crimes (Appeal and Review) Act 2001, s 20. Crimes (Domestic and Personal Violence) Act 2007, ss 99(1), 99(2), 99(3).
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403. DAR v Director of Public Prosecutions (Qld) [2008] QCA 309. Mahmoud v Sutherland [2012] NSWCA 306. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1.
Category:	Principal judgment
Parties:	Tosson Mahmoud (Appellant) Vincent Sutherland (Respondent)
Representation:	Counsel: A. Mitchelmore (Amicus Curiae) In person (Appellant) In person (Respondent)
File Number(s):	DC 2009/327342