Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348

Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348

The Secretary committed legal and jurisdictional error by deferring consideration of the remainder of the plaintiff's costs application to ascertain amounts the plaintiff "may receive" from civil proceedings. Section 4(5) permitted deferral only to ascertain amounts referred to in s 4(3), namely amounts received or amounts the applicant is entitled to receive, or would be entitled to receive if relevant rights and remedies were exhausted. The Secretary therefore applied the wrong test and took into account an impermissible consideration.

Jurisdiction
Australia
Judgment Date
31 March 2016
Procedural Posture
Judicial Review of a Decision Under the Costs in Criminal Cases Act 1967 (nsw) / Principal Judgment on Summons Seeking Declaration and Orders in the Nature of Certiorari and Mandamus
Outcome
Decision quashed; declaration and mandamus granted; plaintiff awarded costs.
Legal Topics
['costs in Criminal Cases' 'statutory Construction' 'jurisdictional Error' 'certiorari' 'mandamus' 'subrogation']
['administrative Law' 'judicial Review' 'criminal Procedure' 'costs'] ['costs in Criminal Cases' 'statutory Construction' 'jurisdictional Error' 'certiorari' 'mandamus' 'subrogation']

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Procedural Posture

Judicial Review of a Decision Under the Costs in Criminal Cases Act 1967 (nsw) / Principal Judgment on Summons Seeking Declaration and Orders in the Nature of Certiorari and Mandamus

Legal Issues

  1. 1 ["Whether the Secretary was permitted by s 4(5) of the Costs in Criminal Cases Act 1967 to defer consideration of the remainder of the plaintiff's costs application until conclusion of civil proceedings to ascertain amounts the plaintiff may receive." 'Whether the Secretary applied the correct statutory test under s 4(3) when considering amounts the plaintiff had received, was entitled to receive, or would be entitled to receive if relevant rights and remedies were exhausted.' 'Whether, once the Secretary formed the opinion that payment was justified under s 4(2), the Secretary was required to determine and pay the amount of reasonably incurred costs subject to statutory reductions.']

Ratio Decidendi

The Secretary committed legal and jurisdictional error by deferring consideration of the remainder of the plaintiff's costs application to ascertain amounts the plaintiff "may receive" from civil proceedings. Section 4(5) permitted deferral only to ascertain amounts referred to in s 4(3), namely amounts received or amounts the applicant is entitled to receive, or would be entitled to receive if relevant rights and remedies were exhausted. The Secretary therefore applied the wrong test and took into account an impermissible consideration.

Court Disposition

Decision quashed; declaration and mandamus granted; plaintiff awarded costs.

Orders

  • ['A declaration that the decision made by the first defendant and communicated to the plaintiff by letter dated 4 June 2014 deferring consideration of the remainder of the application for costs under the Costs in Criminal Cases Act 1967 on the basis of ascertaining an amount that "may be received" is wrong in law.'...