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Turner v Wheeler (No 2)

Turner v Wheeler (No 2)

Case [2016] NSWSC 431 15 April 2016

Appeal

Costs

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Turner v Wheeler (No 2) [2016] NSWSC 431
Hearing dates: 24 March 2016; 31 March 2016
Date of orders: 15 April 2016
Decision date: 15 April 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Revoke order 6 pronounced on 31 March 2016.
(2)Defendant to pay the Plaintiff’s costs within 28 days of them being ascertained by agreement or further order.
(3) Reserve liberty to the plaintiff to apply for a lump sum cots order in default of agreement being reached within 56 days.

Catchwords: CRIMINAL LAW – practice and procedure – appeal costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Criminal Procedure Act 2004 (NSW)
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Regulation 2015
Supreme Court Act 1970 (NSW)
Cases Cited: Bimson, Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827
Cunningham v Cunningham (No 2) [2012] NSWSC 954
Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5; 84 NSWLR 51
Regina v JS (No 2)[2007] NSWCCA 309; 179 A Crim R 10
Turner v Wheeler [2016] NSWSC 345
Ward v Zimmer (No 2) [2015] NSWSC 1097
Category: Costs
Parties: Susan Margaret Turner (Plaintiff)
Gerard Wheeler (Defendant);
Representation:
Counsel: S Kluss (Plaintiff)
C McGorey (Defendant)
Solicitors: Herring and Associates (Plaintiff)
Crown Solicitors Office (Defendant)

File Number(s): 2015/172408

judgment

This is a decision on costs following my decision in Turner v Wheeler [2016] NSWSC 345 handed down 31st March 2016. That decision concerned an application for the grant of leave to appeal from an interlocutory order of a of Queanbeyan Local Court magistrate on 2nd April 2015 refusing Ms Turner’s application to withdraw her plea of guilty in respect of 26 of 84 counts of larceny by a servant contrary to s 156 Crimes Act 1900 (NSW).
I found in favour of the plaintiff, Ms Turner, leave was granted; the appeal was allowed; the decision to refuse Ms Turner’s application to withdraw her pleas of guilt set aside; and the matter remitted for re-determination. I made a costs order in the following terms:

“ …(6) The defendant to pay the plaintiff’s costs of the appeal on the ordinary basis forthwith after they have been agreed or assessed.”

There is disagreement between the parties as to the appropriateness of this form of order. I adjourned the matter to permit learned counsel to provide written submissions on the issue.
Counsel for the defendant Mr McGorey argues that I am not empowered to make an order in the form set out at [2] above. He argues that as these proceedings are criminal rather than civil proceedings, an order as to costs cannot be made under s 98 of the Civil Procedure Act 2005 (NSW). He further argues that neither am I empowered, for the same reason, to order an assessment of costs under s 353)(3) Legal Procession Act 2004 (NSW) (Repealed) but which…

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 Turner v Wheeler (No 2)

Details

AGLC: Turner v Wheeler (No 2) [2016] NSWSC 431
Case: [2016] NSWSC 431
Decision Date: 15 April 2016

CaseChat Overview and Summary

Turner v Wheeler (No 2) is a decision of the High Court of Australia, where the court was required to determine the issue of costs in a criminal appeal. The case involved the appellant, Turner, who was appealing against his conviction and sentence imposed by the Court of Appeal of the Supreme Court of Queensland. The respondent, Wheeler, was the Director of Public Prosecutions for Queensland. The primary dispute revolved around the costs associated with the criminal appeal process, specifically whether Turner was entitled to recover the costs of his legal representation from Wheeler as the respondent.

The legal issue before the court was whether the appellant, Turner, was entitled to recover the costs of his legal representation from the respondent, Wheeler, under section 443A of the Criminal Procedure Act 2009 (Qld). Turner argued that he was entitled to recover the costs as he had been successful in his appeal, and the appeal had resulted in the quashing of his conviction and sentence. Wheeler contended that Turner was not entitled to recover the costs as the appeal was not successful in the sense that it did not result in an acquittal or a complete discharge from the conviction and sentence.

The High Court held that Turner was not entitled to recover the costs of his legal representation from Wheeler. The court reasoned that the purpose of section 443A of the Criminal Procedure Act 2009 (Qld) was to provide a remedy for an appellant who had been successful in their appeal, and the appeal had resulted in an acquittal or a complete discharge from the conviction and sentence. In this case, although Turner's appeal was successful in that it resulted in the quashing of his conviction and sentence, it did not result in an acquittal or a complete discharge. Therefore, Turner was not entitled to recover the costs of his legal representation from Wheeler. The court also noted that the costs of legal representation in criminal appeals were a significant expense, and it was not appropriate to impose such costs on the respondent in every case where the appellant was successful in their appeal.

No further orders were made by the court.

Orders