Constable Redman v Willcocks [2010] NSWSC 1268

Constable Redman v Willcocks [2010] NSWSC 1268

Section 99(4) restricts costs against a police officer in relation to the making of an apprehended violence order application generally, but it does not prevent a costs order against a police officer for procedural misconduct in the conduct of the proceedings. Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 was incorporated by s 99, and the Magistrate's costs order was directed to procedural failures that caused the Defendant to incur costs for the adjourned appearance, not to the bringing of the proceedings. The Magistrate's order was therefore within jurisdiction and disclosed no error of law.

Jurisdiction
Australia
Judgment Date
29 November 2010
Procedural Posture
Application for Prerogative Relief and Declarations Concerning a Local Court Costs Order in Apprehended Domestic Violence Order Proceedings / Supreme Court Judgment on Summons
Outcome
The summons was dismissed.
Legal Topics
['certiorari' 'jurisdictional Error' 'error of Law on the Face of the Record' 'costs Against Police Officer Applicant' 'procedural Misconduct' 'construction of S 99 Crimes (domestic and Personal Violence) Act 2007 and Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986']
['administrative Law' 'apprehended Violence Orders' 'costs' 'statutory Construction'] ['certiorari' 'jurisdictional Error' 'error of Law on the Face of the Record' 'costs Against Police Officer Applicant' 'procedural Misconduct' 'construction of S 99 Crimes (domestic and Personal Violence) Act 2007 and Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986']

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Procedural Posture

Application for Prerogative Relief and Declarations Concerning a Local Court Costs Order in Apprehended Domestic Violence Order Proceedings / Supreme Court Judgment on Summons

Legal Issues

  1. 1 ['Whether the Local Court Magistrate had jurisdiction to order costs against a police officer after an application for an Apprehended Domestic Violence Order was withdrawn.' 'Whether s 99(4) of the Crimes (Domestic and Personal Violence) Act 2007 was the only source of power to order costs against a police officer applicant.' 'Whether Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 applied to costs for procedural misconduct in apprehended violence order proceedings.' "Whether the Magistrate's costs order involved jurisdictional error or error of law on the face of the record."]

Ratio Decidendi

Section 99(4) restricts costs against a police officer in relation to the making of an apprehended violence order application generally, but it does not prevent a costs order against a police officer for procedural misconduct in the conduct of the proceedings. Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 was incorporated by s 99, and the Magistrate's costs order was directed to procedural failures that caused the Defendant to incur costs for the adjourned appearance, not to the bringing of the proceedings. The Magistrate's order was therefore within jurisdiction and disclosed no error of law.

Court Disposition

The summons was dismissed.

Orders

  • ['The summons is dismissed.' "The Plaintiff is to pay the Defendant's costs of the proceedings."]