Jordan v O'Shane [2000] NSWSC 831

Jordan v O'Shane [2000] NSWSC 831

Because the application for restoration of the billiard table under s 438 of the Crimes Act was made in the absence of the plaintiff, who had possession of the property, without notice and without an opportunity to respond, the plaintiff was denied natural justice and the Local Court order had to be set aside. The plaintiff was granted an extension of time because of the material in the affidavit and the fundamental defect in the order. Costs were ordered against Senior Constable Taylor because the Police Prosecutor made the application on his behalf, but no costs order was made against the Magistrate or the Local Court because the threshold for costs against a judicial officer was not...

Jurisdiction
Australia
Judgment Date
21 August 2000
Procedural Posture
Appeal Pursuant to S 104 of the Justices Act 1902 Seeking to Set Aside an Order Made Pursuant to S 438 of the Crimes Act 1900 for Restoration of Property / Supreme Court of New South Wales Common Law Division Appeal From the Local Court; Application for Extension of Time Also Determined
Outcome
Extension of time granted; appeal upheld; Local Court ruling and finding under s 438 of the Crimes Act set aside; second defendant ordered to pay the plaintiff's costs of appeal; no order as to costs of the first and third defendants.
Legal Topics
['restoration of Stolen Property' 'procedural Fairness' 'natural Justice' 'appeal From Local Court' 'costs Against Judicial Officers']
['criminal Law and Procedure' 'administrative Law' 'costs'] ['restoration of Stolen Property' 'procedural Fairness' 'natural Justice' 'appeal From Local Court' 'costs Against Judicial Officers']

Case Brief

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Procedural Posture

Appeal Pursuant to S 104 of the Justices Act 1902 Seeking to Set Aside an Order Made Pursuant to S 438 of the Crimes Act 1900 for Restoration of Property / Supreme Court of New South Wales Common Law Division Appeal From the Local Court; Application for Extension of Time Also Determined

Legal Issues

  1. 1 ['Whether time for instituting the appeal should be extended under SCR Pt 51 r 6(2)(a).' "Whether the s 438 Crimes Act order should be set aside because the application was made in the plaintiff's absence without notice or opportunity to respond." 'Whether costs should be ordered against the first, second or third defendants, including whether costs should be awarded against a judicial officer or the Local Court.']

Ratio Decidendi

Because the application for restoration of the billiard table under s 438 of the Crimes Act was made in the absence of the plaintiff, who had possession of the property, without notice and without an opportunity to respond, the plaintiff was denied natural justice and the Local Court order had to be set aside. The plaintiff was granted an extension of time because of the material in the affidavit and the fundamental defect in the order. Costs were ordered against Senior Constable Taylor because the Police Prosecutor made the application on his behalf, but no costs order was made against the Magistrate or the Local Court because the threshold for costs against a judicial officer was not...

Court Disposition

Extension of time granted; appeal upheld; Local Court ruling and finding under s 438 of the Crimes Act set aside; second defendant ordered to pay the plaintiff's costs of appeal; no order as to costs of the first and third defendants.

Orders

  • ['Extension of time for the institution of the appeal granted up to the date of filing of the summons.' 'Appeal upheld.' 'The ruling and finding of the Local Court pursuant to s 438 of the Crimes Act is set aside.' "The second defendant is to pay the plaintiff's costs of appeal." 'No order as to the costs of the...