Dempsey v Director of Public Prosecutions [2019] NSWCA 267

Dempsey v Director of Public Prosecutions [2019] NSWCA 267

Ms Dempsey was denied procedural fairness as she was not informed that the primary judge intended to discount the costs assessed as 'fair and reasonable' to arrive at a figure considered 'just and reasonable' or 'just'. This procedural unfairness, and the unclear distinction between relevant statutory standards, constituted jurisdictional error requiring the impugned orders to be set aside and remitted for redetermination.

Parties
Applicant: Rosemarie Dempsey; First Respondent: Director of Public Prosecutions (NSW); Second Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
06 November 2019
Procedural Posture
Judicial Review / Appeal From District Court Decision on Costs
Outcome
Appeal allowed; orders for costs made by District Court set aside; matter remitted for redetermination; no order as to costs of appellate proceedings.
Legal Topics
Costs, Procedural Fairness, Jurisdictional Error
Criminal Law Judicial Review Civil Procedure Costs Procedural Fairness Jurisdictional Error

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Parties

Rosemarie Dempsey

Applicant

Director of Public Prosecutions (NSW)

First Respondent

District Court of New South Wales

Second Respondent

Procedural Posture

Judicial Review / Appeal From District Court Decision on Costs

Legal Issues

  1. 1 Whether the primary judge denied procedural fairness by failing to inform the applicant of the matters considered in the assessment of costs
  2. 2 Whether the exercise of discretion to reduce costs by 30% constituted jurisdictional error
  3. 3 Whether there is a difference between 'fair and reasonable', 'just and reasonable', and 'just' in statutory language

Ratio Decidendi

Ms Dempsey was denied procedural fairness as she was not informed that the primary judge intended to discount the costs assessed as 'fair and reasonable' to arrive at a figure considered 'just and reasonable' or 'just'. This procedural unfairness, and the unclear distinction between relevant statutory standards, constituted jurisdictional error requiring the impugned orders to be set aside and remitted for redetermination.

Court Disposition

Appeal allowed; orders for costs made by District Court set aside; matter remitted for redetermination; no order as to costs of appellate proceedings.

Orders

  • Orders for costs made 26 April 2019 be set aside.
  • Matter remitted to Scotting DCJ of the District Court for redetermination.