Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Wang v Farkas [2014] NSWCA 29 Hearing dates: 16 December 2013 Decision date: 26 February 2014 Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3]Decision: (1) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him.
(2) In place thereof direct that the District Court set aside the order made by the magistrate with respect to costs and substitute a judgment in favour of Mr Farkas in an amount of $22,315, such judgment to take effect from the date of the order for costs made in the Local Court.
(3) Set aside the judgment and orders of the District Court made on 21 October 2011 with respect to the costs of the appeal.
(4) In place thereof, direct that the applicants pay the expenses and disbursements of the defendant (Mr Farkas) incurred in relation to the challenge to the apprehended personal violence orders and that Mr Farkas pay so much of the applicants' costs as are attributable to the orders made in the Local Court with respect to costs, subject to an allowance for any disbursements incurred by Mr Farkas in seeking to enforce the orders of the District Court prior to the commencement of the proceedings in this Court.
(5) Make no order as to the costs of the parties in this Court.
(6) Give liberty to the parties to file written submissions, not to exceed 7 pages, within 10 days of delivery of this judgment, with a further 7 days to respond by submissions not exceeding 3 pages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review - jurisdictional error - power of magistrate to award costs for time spent by litigant in person in prosecuting proceedings for apprehended violence order - power to award costs against defendants jointly and severally
COSTS - criminal - power to award - whether power to order costs for time of litigant in person - definition of "professional costs" in Criminal Procedure Act 1986 (NSW) - legal practitioner appearing for himself - application of Chorley - relevance of Chorley in applying Criminal Procedure Act 1986 (NSW)
PROCEDURE - criminal - costs - whether power to make defendants jointly and severally liable for costs of proceedings
WORDS AND PHRASES - "professional costs" - Criminal Procedure Act 1986 (NSW), s 211Legislation Cited: Civil Procedure…
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- AGLC
- Wang v Farkas [2014] NSWCA 29
- Case
- [2014] NSWCA 29
- Decision Date
CaseChat Overview and Summary
The court was required to determine two principal legal issues. Firstly, it had to consider whether the definition of "professional costs" under section 211 of the *Criminal Procedure Act 1986* (NSW) extended to compensation for the time of a litigant in person who was also a legal practitioner. Secondly, the court needed to ascertain whether it was open to the magistrate to make the defendants jointly and severally liable for the costs awarded in the proceedings.
The court reasoned that the phrase "professional costs" in section 211 of the *Criminal Procedure Act 1986* (NSW) was not confined to costs incurred by a party in engaging a legal practitioner, but could encompass the value of the time of a legal practitioner who represented themselves. The court applied the principle established in *Chorley* [1945] 1 All ER 192, which allows for the recovery of costs by a litigant in person who is a solicitor or barrister, to the interpretation of the NSW legislation. The court found that the magistrate had erred in law by failing to consider the possibility of awarding costs for the litigant in person's time and by not making the defendants jointly and severally liable for those costs.
Consequently, the Court of Appeal set aside the District Court's judgments and orders that had dismissed the appeal from the magistrate's costs order. The court substituted an order directing the District Court to set aside the magistrate's original costs order and enter judgment in favour of Mr Farkas for $22,315, effective from the date of the magistrate's order. Further orders were made regarding the costs of the appeal itself, with specific directions for the payment of expenses and disbursements, and liberty was granted for parties to file written submissions on costs.
Orders
Orders of the court
(1) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him.
(2) In place thereof direct that the District Court set aside the order made by the magistrate with respect to costs and substitute a judgment in favour of Mr Farkas in an amount of $22,315, such judgment to take effect from the date of the order for costs made in the Local Court.
(3) Set aside the judgment and orders of the District Court made on 21 October 2011 with respect to the costs of the appeal.
(4) In place thereof, direct that the applicants pay the expenses and disbursements of the defendant (Mr Farkas) incurred in relation to the challenge to the apprehended personal violence orders and that Mr Farkas pay so much of the applicants' costs as are attributable to the orders made in the Local Court with respect to costs, subject to an allowance for any disbursements incurred by Mr Farkas in seeking to enforce the orders of the District Court prior to the commencement of the proceedings in this Court.
(5) Make no order as to the costs of the parties in this Court.
(6) Give liberty to the parties to file written submissions, not to exceed 7 pages, within 10 days of delivery of this judgment, with a further 7 days to respond by submissions not exceeding 3 pages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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