Wang v Farkas [2014] NSWCA 29

Wang v Farkas [2014] NSWCA 29

The statutory power to award costs in apprehended violence order proceedings was confined by Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW), including the defined term professional costs. Properly construed, that definition did not include the value of time spent by Mr Farkas, even as a legal practitioner, conducting his own proceedings. The magistrate therefore exercised a power that did not exist by awarding $256,678 for such time, and the District Court erred in upholding that order. That error was jurisdictional, so relief under s 69 of the Supreme Court Act 1970 (NSW) was available. The disbursements component of $22,315 was recoverable. Basten JA considered that any error in...

Jurisdiction
Australia
Judgment Date
26 February 2014
Procedural Posture
Judicial Review of District Court Decision Concerning Costs in Apprehended Personal Violence Order Proceedings / Court of Appeal Judgment on Summons Under S 69 of the Supreme Court Act 1970 (nsw)
Outcome
Application allowed in part; District Court costs orders set aside in part; Local Court costs order substituted with judgment for Mr Farkas for $22,315; no order as to costs in the Court of Appeal.
Legal Topics
['judicial Review' 'jurisdictional Error' 'professional Costs' 'litigant in Person' 'apprehended Personal Violence Orders' 'joint and Several Costs Liability' 'criminal Procedure Act 1986 (nsw), S 211']
['administrative Law' 'costs' 'criminal Procedure'] ['judicial Review' 'jurisdictional Error' 'professional Costs' 'litigant in Person' 'apprehended Personal Violence Orders' 'joint and Several Costs Liability' 'criminal Procedure Act 1986 (nsw), S 211']

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Procedural Posture

Judicial Review of District Court Decision Concerning Costs in Apprehended Personal Violence Order Proceedings / Court of Appeal Judgment on Summons Under S 69 of the Supreme Court Act 1970 (nsw)

Legal Issues

  1. 1 ['Whether the magistrate had power to award costs for time spent by Mr Farkas, a self-represented legal practitioner, in prosecuting apprehended personal violence order proceedings.' 'Whether any error in awarding such costs was jurisdictional error permitting relief despite s 176 of the District Court Act 1973 (NSW).' 'Whether the magistrate had power to order that the applicants be jointly and severally liable for costs.' 'Whether discretionary considerations, including delay and prior conduct of the applicants, should lead the Court to refuse relief.']

Ratio Decidendi

The statutory power to award costs in apprehended violence order proceedings was confined by Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW), including the defined term professional costs. Properly construed, that definition did not include the value of time spent by Mr Farkas, even as a legal practitioner, conducting his own proceedings. The magistrate therefore exercised a power that did not exist by awarding $256,678 for such time, and the District Court erred in upholding that order. That error was jurisdictional, so relief under s 69 of the Supreme Court Act 1970 (NSW) was available. The disbursements component of $22,315 was recoverable. Basten JA considered that any error in...

Court Disposition

Application allowed in part; District Court costs orders set aside in part; Local Court costs order substituted with judgment for Mr Farkas for $22,315; no order as to costs in the Court of Appeal.

Orders

  • ['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.' 'In place thereof direct that the District Court set aside the order made by the...