Gee v Office of the Director of Public Prosecutions NSW [2019] NSWSC 618

Gee v Office of the Director of Public Prosecutions NSW [2019] NSWSC 618

The Local Court decision refusing a costs certificate was set aside because the magistrate applied the wrong statutory test under s 3 of the Costs in Criminal Cases Act 1967 (NSW), assessing reasonableness by reference to what was known to the prosecutor before proceedings were instituted rather than by reference to possession of evidence of all relevant facts. Each party was ordered to pay its own costs because the plaintiffs had pressed primary relief that the Supreme Court grant a certificate until shortly before the hearing, withdrew that relief, and obtained only unopposed alternative relief under s 69 of the Supreme Court Act 1970 (NSW), so the outcome did not fairly amount to...

Jurisdiction
Australia
Judgment Date
24 May 2019
Procedural Posture
Proceedings Seeking Leave to Appeal and Alternative Relief Under S 69 of the Supreme Court Act 1970 (nsw) From Refusal of a Costs Certificate / Principal Judgment; Consent Orders Setting Aside the Local Court Decision and Remitting the Application, With Contested Costs Issue
Outcome
Decision of the Local Court refusing a costs certificate set aside by consent; application remitted to the Local Court; each party to pay his or her own costs of the Supreme Court proceedings.
Legal Topics
['costs Certificate Under the Costs in Criminal Cases Act 1967 (nsw)' 'error of Law on the Face of the Record' 'jurisdictional Error' 'costs Follow the Event' 'remittal to Local Court']
['criminal Procedure' 'costs' 'judicial Review'] ['costs Certificate Under the Costs in Criminal Cases Act 1967 (nsw)' 'error of Law on the Face of the Record' 'jurisdictional Error' 'costs Follow the Event' 'remittal to Local Court']

Case Brief

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Procedural Posture

Proceedings Seeking Leave to Appeal and Alternative Relief Under S 69 of the Supreme Court Act 1970 (nsw) From Refusal of a Costs Certificate / Principal Judgment; Consent Orders Setting Aside the Local Court Decision and Remitting the Application, With Contested Costs Issue

Legal Issues

  1. 1 ['Whether the Local Court decision refusing a certificate under the Costs in Criminal Cases Act 1967 (NSW) should be set aside under s 69 of the Supreme Court Act 1970 (NSW).' 'Whether the plaintiffs should receive their costs of the Supreme Court proceedings after accepting alternative relief shortly before the hearing.' 'How to identify the relevant event for the purpose of the rule that costs follow the event.']

Ratio Decidendi

The Local Court decision refusing a costs certificate was set aside because the magistrate applied the wrong statutory test under s 3 of the Costs in Criminal Cases Act 1967 (NSW), assessing reasonableness by reference to what was known to the prosecutor before proceedings were instituted rather than by reference to possession of evidence of all relevant facts. Each party was ordered to pay its own costs because the plaintiffs had pressed primary relief that the Supreme Court grant a certificate until shortly before the hearing, withdrew that relief, and obtained only unopposed alternative relief under s 69 of the Supreme Court Act 1970 (NSW), so the outcome did not fairly amount to...

Court Disposition

Decision of the Local Court refusing a costs certificate set aside by consent; application remitted to the Local Court; each party to pay his or her own costs of the Supreme Court proceedings.

Orders

  • ['By consent, and pursuant to s 69 of the Supreme Court Act 1970 (NSW), set aside the decision of Day LCM made on 12 September 2018 at the Local Court at Orange to refuse a certificate under the Costs in Criminal Cases Act 1967 (NSW).' "By consent, order that the plaintiffs' application for a certificate under the...