RB v DPP

The proceedings in this court

These proceedings for judicial review were instituted almost 12 months after his Honour's decision. UCPR r 59.10, prescribing a period of 3 months in which to institute proceedings of this kind, was not in force at the relevant time. However, counsel for the Director, Mr Bourke, raised the issue of delay as a matter bearing upon the discretion to grant prerogative relief, assisting me by reference to authority on that question. He fairly acknowledged that the Director could not point to any particular prejudice resulting from the delay.
The plaintiff provided some explanation for it in an affidavit deposing that he conducts a business as a lone trader, the income from the business is relatively modest, he is married with 3 children, and they live in a home subject to a substantial mortgage. He found it necessary to give careful consideration to whether he would undertake these proceedings, given the costs burden he may suffer in the event of their being unsuccessful.
In the circumstances, I find this explanation reasonable and I do not consider that the delay is a matter militating against the grant of relief if a basis for it is made out.
By an amended summons the plaintiff seeks orders pursuant to s 69 of the Supreme Court Act 1970, being an order in the nature of certiorari quashing the magistrate's costs decision and an order in the nature of mandamus directing the Local Court to exercise its power under the relevant legislation according to law. Also sought are declarations to the effect that the prerequisites of s 214(1)(a), (c) and (d) of the Criminal Procedure Act have been established.
Mr Bourke referred me to the helpful analysis of the nature of the relief sought by Beech-Jones J in O'Brien v Hutchinson [2012] NSWSC 429, a case also involving s 214 of the Criminal Procedure Act, at [4] ff. After referring to the principles relating to jurisdictional error and error on the face of the record enunciated in Craig v State of South Australia [1995] HCA 58, 184 CLR 163 and Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531, his Honour continued at [7]-[14]: "[7] The power conferred by s 213(1) of the Criminal Procedure Act cannot be exercised in a case where there is a prosecutor acting in a public capacity unless the Court is 'satisfied' of any one or more of s 214(1)(a) to (d). The formation of the opinion in s 214(1) is a 'limit' on the function or power conferred by s 213(1) as discussed in the above passage from Craig. It follows that, in a case where a costs order was refused, jurisdictional error will be established if the plaintiff can establish that the Local Court misapprehended the limits placed on it by s 214 (see for example De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [32] to [33], per Davies J). Having stated this, six matters should be kept in mind. [8] First, the formulation of jurisdictional error that I have extracted from Craig involves establishing that the inferior court 'misapprehended' the limits on its power. Just because the matters listed in s 214(1) have a jurisdictional quality does not mean that the role of this Court is to determine whether any of them were met and, if so, conclude that there was jurisdictional error on the part of the Local Court in failing to act. The plaintiff must identify a 'misapprehension' by the Local Court as to the limits on its power, not a mere disagreement with the Local Court's conclusion as to those limits. Unless the intention is clearly expressed, legislation will not be construed so as to make the jurisdiction of a court contingent upon the actual existence of a state of facts as distinct from the court's opinion or determination that the facts exist (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, per Dixon J]). The deployment by the legislature of the word 'satisfied' in s 214(1) puts beyond doubt that there is no such contrary intention. [9] Second, a number of aspects of s 214(1)(a) to (d) involve the exercise of a normative judgment on the part of the Local Court. For example, the Local Court must make an assessment as to whether something was 'unreasonable', 'improper' or that there were 'exceptional circumstances'. In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of 'opinion or policy or taste' may be 'very much a matter of opinion and thus not readily susceptible to review for error of law' (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was 'unreasonable' or not can be very much a matter of opinion. In such a case, the task of demonstrating a misapprehension in the Craig sense is that much more difficult. [10] Third, an erroneous construction of provisions such as ss 214(1)(a) to (d) will sometimes be apparent on the face of the lower court's reasons. If so the existence of both an error of law and a jurisidictional error will be established. In some cases a misconstruction may only be apparent from an examination of the structure of the lower court's reasons. In other cases a party may point to a disparity between the facts as found and the lower court's conclusion as demonstrative of error. However, it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a 'common understanding'. To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] to [28], per Gleeson CJ, Gummow and Callinan JJ). [11] Fourth, a relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not or by pointing to matters the court did take into account, but should not have. In Craig at 180, the High Court held: '... a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.' [12] It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error. [13] Fifth, the failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However, the relevant transgression would have to be apparent on the face of the 'record'. It could not be demonstrated by pointing to a wider set of materials. Moreover, the relevant 'matter' would have to be a factor or consideration that as a 'matter of law' the lower court was required to consider, or exclude, as the case maybe. Such matters are ascertained from the legislation governing the case in question (see in the context of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] to [74], per McHugh, Gummow and Hayne JJ). They are not identified by preparing a list of 'facts' that it is said should have been considered but were not, or were considered but should not have been. [14] Sixth, the material placed before me included the transcript of an ex tempore judgment of the second defendant. It is well recognised that, given the prodigious workload carried by the Local Court, the transcript of such reasons are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479A, per Kirby P)."
In the present case judicial review is sought on the grounds that the magistrate's decision was made "upon a mistaken apprehension of the limits of the jurisdiction of the Local Court to award costs in criminal matters", and a misconception on the part of the magistrate of the nature of his function and the extent of his powers in the circumstances of the case.
Mr Healey's central argument was that his Honour's reasons disclose that his focus was upon the fairness of the hearing rather than the reasonableness of the police investigation. It is the latter, not the former, which is the subject of s 214(1)(a) and (c) (although the conduct of the proceedings by the prosecutor, of course, is the subject of (d)).
Mr Healey cited the decision of the Court of Criminal Appeal in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13. That case arose from a successful appeal by the appellant company to the Land and Environment Court against a conviction in proceedings brought against it in the Local Court by the respondent Council. The judge of the Land and Environment Court hearing the appeal had refused an application by the appellant for its costs. Before the Court of Criminal Appeal was a stated case, pursuant to s 5BA of the Criminal Appeal Act 1912, against the judge's determination. The relevant legislation was s 70 of the Crimes (Local Courts Appeal and Review) Act 2001 (now Crimes (Appeal and Review) Act 2001), which is relevantly similar to s 214. In particular, s 70(1)(a) and (c) are in identical terms to pars (a) and (c) of s 214(1) of the Criminal Procedure Act.
For present purposes, it is sufficient to say that a potential witness had not been called in the prosecution case. Evidence was given by officers of the respondent of a conversation with that person, which provided some indication of what he might have been able to say, but a statement was not taken from him. The judge had determined that the failure to call that witness did not provide a ground for the award of costs because he could not determine what the outcome would have been if the witness had been called, and was "not able to be satisfied that his evidence would have suggested the appellant might not be guilty or that the proceedings should not be brought … ." It will be seen that that finding used the language of s 70(1)(c).
The Court of Criminal Appeal held that his Honour had not fallen into error insofar as his decision was based upon par (c). However, the court did find error in his Honour's failure properly to consider par (a).
Hodgson JA (with whom Howie and Price JJ agreed) noted at [18] that the submissions based on the failure to call the witness were misconceived. That failure, his Honour said, "relates to the manner in which the proceedings were conducted, not to the investigation." Explaining the focus of pars (a) and (c) of the subsection, his Honour said at [20]-[21]: "[20] As regards s 70(1)(c), it could be said that a person seeking costs must identify a matter that the prosecution was or ought to have been aware of and that suggested that the appellant might not be guilty or that the proceedings should not have been brought. If the 'matter' in question here is that there was a possible eye-witness, then it was not shown that this matter suggested that the appellant might not be guilty. If the 'matter' in question is the evidence that that witness could give, although it could be said that the Council should have been aware of it, it was not shown that this evidence suggested that the appellant might not be guilty. Accordingly, in relation to s 70(1)(c), I do not think error by the primary judge was shown. [21] However, in relation to s 70(1)(a), I do not think it is necessary for the person seeking costs in every case to show that an investigation conducted in a reasonable manner would have suggested that the appellant might not be guilty or that the proceedings ought not to be brought. If a prosecutor knows there are five eye-witnesses to an event, and interviews and calls only one of them, and the prosecution then fails, I think s 70(1)(a) may apply even if the person seeking costs does not prove what the other four witnesses would have said. Similarly, closer to this case, if the prosecutor knows there is an eye-witness to what happened, but does not interview this witness, and instead relies wholly on a circumstantial case, in my opinion s 70(1)(a) may be satisfied even if the person seeking costs does not prove what the eye-witness would have said."
The issue arose again, although with a somewhat different emphasis, in De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868, a decision of Davies J. (This decision was referred to by Beech-Jones J in O'Brien v Hutchinson, cited above, at [7].) Like the present case, that was an application by the plaintiff for judicial review of the decision of a magistrate to refuse an order for costs in his favour after a charge against him of assault occasioning actual bodily harm was dismissed in the Local Court. Section 214 was the applicable legislation. The plaintiff was alleged to have assaulted his step-daughter during an incident in which the only witnesses were family members. His case was that the complainant had inflicted upon herself the injury which was the subject of the charge.
One of the witnesses was the plaintiff's 13 year old son, from whom the police did not obtain a statement at any stage and who was not called in the prosecution case. Prior to the Local Court hearing the plaintiff obtained a statement from him, supportive of his case, and forwarded it to the police. At the hearing evidence of a forensic pathologist was led in the plaintiff's case, which was also strongly supportive of his account and which influenced the magistrate's decision to dismiss the charge.
The plaintiff's application for costs on the basis of the failure of the police to take a statement from his son was founded upon s 214(1)(a) and (c). In declining to order costs on this basis, the magistrate focused upon the impact the son's evidence might have had upon the conduct of the proceedings. His Honour expressed the view that the son should have been interviewed but, on the question whether it was unreasonable not to have done so, questioned "what benefit would have been achieved by that." He questioned whether a Prasad style submission might have been made at the end of the prosecution case, and whether any time might have been saved. He also noted the age of the son and the fact that the incident occurred in a domestic context.
Davies J referred to the relevant principles governing judicial review of the decision of an inferior court set out in Kirk v Industrial Court of New South Wales (supra), including the High Court's reference at [72] to a basis for review arising from "misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case." His Honour said at [23] that if the magistrate in the case at hand "asked himself the wrong question when considering the question of unreasonableness in s 214, this would be a misconstruction of the relevant statute … ."
His Honour found at [26] that the magistrate "seemed to regard the touchstone of reasonableness as to whether it would have changed the way the trial ran." This focus upon the conduct of the hearing, he concluded, demonstrated the error identified in Cliftleigh Haulage. His Honour said at [32] that the "question to have asked was not whether interviewing and calling [the son] would have made a difference to the way the trial would run, but whether the failure to do so meant that the investigation was conducted in an unreasonable or improper manner."
At [30] his Honour set out the passage from the judgment of Hodgson JA in Cliftleigh Haulage at [20]-[21] which I have quoted above. His Honour added at [31]: "In relation to s 214(1)(a), therefore, that paragraph can be satisfied without proof of what an uncalled witness would have said. It is enough that, if the prosecution interviews and calls fewer than the available eye-witnesses, s 214(1)(a) may apply. A fortiori, if the witness who was not interviewed and called would have thrown a different perspective on the matter, the paragraph may apply."
His Honour added (also at [32]) that, given that the statement of the son provided strong support for the plaintiff's case, the magistrate should have considered whether the investigation was unreasonable within the terms of par (c). He continued, "That may have been by asking himself what difference it would have made, not to the way the trial was run, but to whether the plaintiff might not have been guilty or that the proceedings should not have been brought." His Honour also found that, in any event, the magistrate had taken into account irrelevant considerations on this issue, that is, the age of the son and the fact that he was a member of the family in whose domestic milieu the incident occurred. These were not relevant considerations, given the substance of the son's evidence, and accordingly there was error on the face of the record giving rise to relief by way of certiorari.
In the present case, Mr Healey submitted, the magistrate had misconstrued s 214 by limiting his discretion to award costs "to situations where the defence was prejudiced by the unreasonable or improper actions" of the Director or the police. He relied in particular upon the passages from his Honour's judgment to which I have referred at [14]-[16] above, in which his Honour found that ultimately, prior to the hearing, the relevant material had been supplied to the plaintiff and, with the exception of the plaintiff's son and his wife, the relevant witnesses were called in the prosecution case, so that it was "a fairly conducted prosecution."
Mr Healey pointed out that s 214(1)(a) and (c) do not require any unfairness or prejudice to the defence to be demonstrated. He argued that the obvious shortcomings in the investigation, which his Honour acknowledged, necessarily led to the conclusion that it had been conducted unreasonably.
Mr Healey also referred specifically to his Honour's observation that nothing turned upon the fact that the plaintiff's son and wife were not called in the prosecution case. This, he submitted, was an error on the face of the record, as the failure by the Director to call all available material witnesses was sufficient to show that the investigation and prosecution were conducted in an unreasonable or improper manner. At the very least, given that there was a dispute as to whether police attempted to interview the plaintiff's wife, the failure to interview or call his son was said to be sufficient to characterise the investigation in that way.
Those last arguments appear to elide the investigation with the conduct of the curial proceedings, but the thrust of Mr Healey's argument is clear enough. It should also not be forgotten that the application for costs was made partly on the basis of s 214(1)(d), impugning the conduct of the proceedings by the prosecutor. That paragraph would embrace the complaint about the failure to call the plaintiff's son and wife in the prosecution case, although the word "conduct" is probably broad enough to include the steps taken by a prosecutor in preparing the case for hearing. That said, the focus of the argument here was the reasonableness of the investigation.
In response to these arguments, Mr Bourke submitted that the magistrate had not fallen into the error for which Mr Healey contended. A fair reading of the reasons as a whole, he said, show that his Honour did assess the reasonableness of the investigation. Mr Bourke noted that his Honour addressed each of the relevant paragraphs of s 214(1) and, while being critical of the dilatory progress of the investigation, concluded that it had been conducted properly and reasonably by the time the case came to hearing.
Mr Bourke argued that it was wrong to focus upon the progress of the investigation (or the lack of it) at the time the plaintiff was charged or when the police brief was served, saying that a finding that there had been some unreasonable or improper conduct at any stage of the process of investigation and prosecution was not a proper basis for an award of costs. He submitted that his Honour was entitled to look, as he did, at the whole of the investigation and the proceedings. It was in this context, he argued, that the magistrate's findings that the investigation had been conducted reasonably by the time of the hearing, that relevant material had been disclosed to the defence, that the prosecution had called effectively all of the relevant witnesses and that, accordingly, the prosecution had been fairly conducted, should be understood.
The focus of par (c) of s 214(1) is, of course, narrower than that of par (a). Relevantly for present purposes, it is directed to whether there was an unreasonable failure to investigate any relevant matter which suggested that the plaintiff might not be guilty. In the course of the hearing before me, the question was raised whether it would have been appropriate for his Honour to have considered whether, if the investigation had been undertaken more promptly, the prosecution might have been terminated without coming to hearing. It appears that that issue was argued before his Honour. I was assisted on this matter by further written submissions from both counsel.
Mr Bourke accepted that there may be cases in which a magistrate, adopting that approach, might find that par (c) was satisfied. Such a case might be one in which the accused raised an alibi, and there was credible evidence in support of it which a reasonable investigation should have uncovered and which might have shown that the prosecution did not have a reasonable prospect of success. Mr Bourke argued that his Honour did address that issue in the present case, finding that it was not a case of that kind.
So much is apparent, Mr Bourke said, from the passage of his Honour's reasons quoted at [16] above, in which he characterised the allegations made by the complainant as "properly jury questions", adding that the fact that doubt was cast upon the complainant's reliability by other investigations did not lead to the conclusion that costs should be granted. Mr Bourke also relied upon the following observation with which his Honour concluded his reasons: "Whilst, as I say, matters could have been perhaps - and ought to have been, I might say - investigated earlier, perhaps before charging, at the end of the day it does not seem to me that that militates towards my exercising my discretion in favour of the accused on any of the bases set out under 1(a), (b), (c) or (d)." (Mr Bourke's emphasis.)
Mr Bourke argued that it is clear from these passages of his Honour's reasons that, for the purpose of par (c), he had considered the course of the investigation from its outset and concluded that, notwithstanding the material favourable to the plaintiff which emerged as the investigation proceeded, there was a prosecution case fit to go to trial. Implicit in that finding was the rejection of any argument that the prosecution might have been terminated at some earlier stage.
The thrust of Mr Healey's further submissions was that, for the purpose of par (c), the question is not whether "at the end of the day" there was a prosecution case fit to proceed to trial. The issue was whether there was an unreasonable failure to investigate a matter of which the prosecutor was aware which suggested that the plaintiff might not be guilty.
Mr Healey drew an analogy with the reasonable suspicion of the commission of an offence necessary to justify an arrest by a police officer pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002. He also referred to the examination of the notion of reasonable suspicion (in a different context) by the Court of Criminal Appeal in R v Rondo [2001] NSWCCA 540, 126 A Crim R 562. In that case Smart AJ, with whom Spigelman CJ and Simpson J agreed, said at [53] (576-7) that a reasonable suspicion "involves less than a reasonable belief but more than a possibility", that it is not arbitrary and that some factual basis for it must be shown. The materials upon which it is based "must have some probative value." His Honour also said that it is necessary to determine whether the information said to give rise to the suspicion "afforded reasonable grounds" for it, and that in answering that question "regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances."
Using that analogy, Mr Healey argued that the issue in the present case was whether: (a) the prosecutor knew or should have known of a matter which suggested that there may be no proper basis for suspecting on reasonable grounds that the plaintiff committed the offence charged (for example, by reducing the probative value of the information available or affecting the reliability of its source); (b) if so, whether a reasonable prosecutor would have investigated that matter; and (c) if so, whether the matter was investigated (or investigated properly).
Mr Healey's position was that it was not necessary for his Honour to have formed a view as to whether this prosecution should have been brought to an end at an earlier stage, although that view was open and, of itself, was sufficient to enliven the court's jurisdiction to award costs. His primary submission was that the prosecution was initiated upon the uncorroborated allegation of the complainant, following her very late complaint, which was made in circumstances suggesting that she may have had a motive to make a false allegation against the plaintiff. Although the police were made aware of that possible motive at the outset by the plaintiff himself and later by his daughter, no enquiries were made about it of the complainant herself or of the school. Such enquiries should have been made, Mr Healey said, because the suggested motive was a matter going to the reliability of the complainant and the probative value of the information supplied by her. In the terms of par (c), Mr Healey submitted, it was a relevant matter suggesting that the plaintiff might not be guilty, and it was unreasonable not to have investigated it.
On the issue of the reasonableness of the investigation, both counsel referred to a passage from my judgment in JD v DPP & Ors [2000] NSWSC 1092. That case concerned an earlier incarnation of s 214 (s 41A of the Justices Act 1902), and I found that a magistrate fell into error in holding that a conclusion that an investigation was conducted in an unreasonable manner required a finding that it fell "grossly below optimum standards." At [31] I said: "Obviously, an investigation which fails to meet optimum standards is not necessary unreasonable. Equally, however, it might fairly be classed as unreasonable even though it does not fall grossly below those standards. … The test is purely objective. To find that the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it."
Mr Bourke pointed out, correctly, that the onus was on the plaintiff to establish any of the bases for an award of costs under pars (a), (c) or (d) of s 214(1) and, even if a basis were established, the decision whether to award costs remained a discretionary exercise. He also referred to the judgment of Levine J in Dong v Hughes [2005] NSWSC 84, another case involving the Justices Act provision, in which his Honour expressed the view at [38] that the legislative intent behind the provision "was to severely restrict the discretion to award costs against the prosecution."
I have not found this matter easy to resolve. His Honour's reasons for refusing costs were given ex tempore, and I am mindful of authority, referred to by Beech-Jones J in O'Brien v Hutchinson at [14], quoted above, that this court should take a practical, common sense approach to ex tempore reasons of the magistrate in a busy Local Court, with an eye to their substance. Nevertheless, I think that there is force in Mr Healey's primary submission that the focus of his Honour's reasons was the fairness of the hearing, rather than the process of the investigation.
True it is that his Honour referred expressly to pars (a) and (c) of s 214(1), saying that he did not find either of those paragraphs established. However, he gave no reason for that conclusion other than his finding that by the time of the hearing the investigation which had been undertaken was not unreasonable. I accept Mr Bourke's argument that the fact that an investigation was dilatory (including delay in supplying relevant material to the defence) does not necessarily mean that it was unreasonable and that, generally speaking, it is the state of the investigation at the time the matter comes for hearing which is relevant. However, his Honour's reasons do not address aspects of the case which were not investigated at all.
As I have said, no statement was ever taken from the plaintiff's wife or his son. They were called in the defence case, and it is apparent that their evidence supported the plaintiff's case, as did that of his daughters. Having observed that their evidence was "effectively a reiteration" of the evidence of the daughters, his Honour found that it did not call for separate investigation. This is to evaluate the investigation with the wisdom of hindsight after the hearing. The fact remains that they were witnesses whom one would have expected the police to interview. If they had been, further material would have emerged capable of suggesting that the plaintiff might not be guilty. This was a deficiency capable of raising an issue under both pars (a) and (c) of the subsection. (Whilst, as I have said, there may have been a question about the willingness of the wife to be interviewed, this is certainly true of the failure to interview the son.)
The same is true of the failure of the police to investigate the possible motive of the complainant to make a false allegation against the plaintiff, a matter which was an important part of Mr Healey's case on costs. About this his Honour said nothing in his reasons. As I have said, it is apparent from his Honour's reasons for dismissing the charge that he accepted that the plaintiff had made a complaint about the complainant's behaviour towards his daughter, and that he saw in that a possible motive on her part to fabricate her account. However, here also, that is no answer to a lack of investigation of the matter.
It could be said that the need to pursue enquiries of the plaintiff's wife and son, and of his complaint about the complainant's treatment of his daughter, was heightened, not lessened, by the fact that both his daughters had made statements supporting his case. As to par (c) generally, I find it unnecessary to decide whether consideration of the issue raised by it would be assisted by reference to the notion of reasonable suspicion in other legislative contexts to which Mr Healey referred.
These deficiencies in the investigation needed to be addressed. I am mindful of the fact that the failure to refer to a relevant matter does not necessarily establish jurisdictional error or even error on the face of the record: O'Brien v Hutchinson at [11]-[13]. However, as I have said, insofar as his Honour did address the fact that statements were not taken from the plaintiff's wife and son, he did so only in the light of the importance their evidence assumed in the defence case at the hearing. The fact that he did not address at all the lack of investigation of the complainant's possible motive to give a false account is consistent with the same approach. My reading of his Honour's reasons as a whole conveys to me that the fairness of the hearing of the case was at the forefront of his reasons in declining to order costs, and that appropriate consideration was not given to the investigation. I am satisfied that his Honour did fall into the error identified in Cliftleigh Haulage and De Varda v Constable Stengord (supra).
Accordingly, the decision to refuse costs should be quashed and the matter remitted to the Local Court for reconsideration. Of course, what I have written in no way dictates what the outcome should then be. It is a matter for that court to determine whether any basis under s 214(1) for the award of costs has been made out and, if so, if costs should be awarded in its discretion. I would not make the declaration to which the plaintiff seeks to the effect that the prerequisites of any of pars (a), (c) or (d) of that subsection have been established.
I shall consult the parties about the formal orders to be made and, if necessary, hear argument on the costs of these proceedings.

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Parties

Cases Cited (18)

Cited By (5)