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Supreme Court 21 August 2000

Jordan v O'Shane

[2000] NSWSC 831

Theft & property
CRIMINAL LAW & PROCEUDRE RESTORATION OF STOLEN PROPERTY PROCEDURAL FAIRNESS

Citation: Jordan v O'Shane [2000] NSWSC 831
Court: Supreme Court of New South Wales, Common Law Division
Date: 21 August 2000
Judge(s): Dunford J

Background

Criminal proceedings were brought against a man charged with stealing a billiard table and accessories belonging to the fourth defendant. The Magistrate found the offence proved but discharged the accused. She also made an order under s 438 of the Crimes Act 1900 directing that the billiard table be restored to its alleged owner.

The order was made against the plaintiff, a solicitor who had come into possession of the billiard table and had given evidence for the prosecution. The plaintiff was not present when the application for the restoration order was made, received no notice of it, and was given no opportunity to respond.

The plaintiff appealed to the Supreme Court, seeking to set aside the restoration order on the basis that he had been denied natural justice and procedural fairness. The appeal was brought out of time, requiring an extension.

  • Whether the restoration order made under s 438 of the Crimes Act 1900 should be set aside for want of procedural fairness, given it was made in the plaintiff's absence and without notice to him.
  • Whether costs should be awarded against the Magistrate (first defendant) and the Local Court (third defendant).
  • Whether costs should be awarded against the informant police officer (second defendant), in circumstances where the Police Prosecutor had made the application on his behalf.
  • Whether costs should be ordered on a solicitor-and-client basis rather than the ordinary party-and-party basis.

Decision

Dunford J had no difficulty concluding that the restoration order should be set aside. The order had been made in the plaintiff's absence, without notice and without any opportunity for him to be heard. That denial of natural justice and procedural fairness was a fundamental defect, and all defendants had filed submitting appearances, leaving the plaintiff's entitlement to have the order set aside uncontested.

On costs against the Magistrate, the court confirmed that the circumstances warranting a costs order against a judicial officer are narrow and well established. It would be necessary to show positively that the judicial officer had been guilty of serious misconduct, perversity or gross ignorance. Although the Magistrate had clearly denied natural justice to the plaintiff, Dunford J found no evidence that she had acted perversely or with gross ignorance, and declined to order costs against her or the Local Court.

Regarding the second defendant, Dunford J accepted the officer's evidence that he had not personally made or authorised the application. However, the Police Prosecutor appeared in Local Court proceedings as the complainant's representative, and the court was satisfied that the Prosecutor had acted on the officer's behalf in making the application. On that basis, it was appropriate that the second defendant bear the plaintiff's costs.

Costs were awarded on the ordinary party-and-party basis rather than solicitor-and-client basis. The court found that the Prosecutor had acted through ignorance rather than malice or contumely. The court also observed that, given the limited value of the billiard table and the straightforward nature of the appeal, engaging senior counsel had not been warranted.

Orders Made

  • Extension of time to institute 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 1900 set aside.
  • The second defendant ordered to pay the plaintiff's costs of the appeal (on a party-and-party basis).
  • No order as to costs in favour of the first and third defendants.
  • All costs orders subject to the costs orders made on 7 August 2000.
  • Exhibits returned.

Key Takeaways

  • A restoration order under s 438 of the Crimes Act 1900 made in the absence of the person in possession of the property, and without notice or opportunity to be heard, constitutes a denial of natural justice and will be set aside on appeal.
  • The threshold for awarding costs against a judicial officer is high: a court must be satisfied positively that the officer was guilty of serious misconduct, perversity or gross ignorance. A denial of natural justice, without more, does not reach that threshold.
  • Where a Police Prosecutor makes an application in Local Court proceedings on behalf of the complainant, the complainant bears the consequences of that application, including a costs order, even where the complainant did not personally direct that the application be made.
  • Under the rules governing appeals from Local Court proceedings, only the original complainant and any person affected by the outcome needed to be joined as defendants; joining the Magistrate and the Local Court as parties complicated proceedings that would otherwise have been short and simple.
  • In declining to order costs in favour of the first and third defendants, Dunford J took into account the modest value of the subject matter in dispute, noting that such an order would substantially deprive the plaintiff of the practical benefit of bringing the proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 438 (since repealed)
- Crimes Act 1900 (NSW), s 556A (since repealed)
- Justices Act 1902 (NSW), s 104
- Supreme Court Rules (NSW), Pt 51, r 6(2)(a)
- Supreme Court Rules (NSW), Pt 51B, r 10

Cases:
- Jones v Dunkel (1959) 101 CLR 298