Citation: Mills v The Commissioner of Police, New South Wales Police [2020] NSWSC 277
Court: Supreme Court of New South Wales
Date: 20 March 2020
Judge(s): Schmidt AJ
Background
Two farmers, a father and son, faced criminal charges and interim apprehended violence orders arising from a dispute with neighbouring landowners in December 2017. All charges were ultimately dismissed in the Moree Local Court in May 2019, and the interim AVOs were withdrawn. The proceedings, originally estimated to take two days, had stretched across nine hearing days over roughly a year.
The farmers then applied for costs under s 213 of the Criminal Procedure Act 1986 (NSW). They claimed approximately $193,000. The Local Court magistrate awarded $50,400, applying a series of reductions to the claimed amount.
The farmers sought judicial review in the Supreme Court under s 69 of the Supreme Court Act 1970, arguing the magistrate had made legal errors in arriving at that figure. Before the matter was fully argued, the parties reached agreement that the costs order should be set aside, and the matter was remitted by consent.
Legal Issues
- Whether the magistrate denied the farmers procedural fairness by deciding the quantum of their costs on bases they had no opportunity to address
- Whether that denial of procedural fairness amounted to jurisdictional error sufficient to warrant the Supreme Court setting aside the Local Court's decision
- Whether the Supreme Court could make the consent orders the parties had agreed upon, given the nature of the errors identified
Decision
Both parties agreed that the magistrate had decided the amount of "just and reasonable costs" on grounds that were never raised with the farmers for their response. In particular, the magistrate treated the original two-day hearing estimate in the listing notice as a basis for adverse costs consequences. The history of the proceedings and the estimate's inadequacy had in fact been relied upon to support the farmers' costs application, yet the magistrate's use of that material against them came without notice.
The parties also agreed that the magistrate's application of a further general percentage reduction to arrive at the final figure was equally unexplained and provided no opportunity for the farmers to respond. Both aspects had the same defect: conclusions adverse to the farmers that were not apparent from the known issues in the costs application.
Schmidt AJ, relying on the Court of Appeal's decision in Dempsey v Director of Public Prosecutions [2019] NSWCA 267, confirmed that procedural fairness requires a court to identify critical issues not apparent from the nature of the proceeding, and to alert an affected party to any adverse conclusion that would not obviously be open on the known material. The magistrate had not done so.
The denial of procedural fairness constituted jurisdictional error under the principles established in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531. Schmidt AJ was satisfied the jurisdiction to make the agreed consent orders should be exercised, and the costs decision was set aside.
Orders Made
By consent:
- The Local Court's costs decision of 22 October 2019 was set aside
- The proceedings were remitted to the Local Court for determination in accordance with law
- The Commissioner of Police was ordered to pay the farmers' costs of the Supreme Court proceedings, as agreed
Key Takeaways
- Procedural fairness requires a court or tribunal determining costs to alert the affected party to any adverse conclusion that would not obviously be open on the material already before it, including unexplained reductions to arrive at a final figure.
- A Local Court magistrate's decision that rests on matters not notified to the parties and not open for response constitutes a denial of procedural fairness that can amount to jurisdictional error, attracting Supreme Court judicial review under s 69 of the Supreme Court Act 1970.
- Under s 213 of the Criminal Procedure Act 1986, the discretion to award costs must be exercised judicially, with the amount being compensatory rather than punitive; using unexplained deductions without giving the applicant an opportunity to respond is inconsistent with that requirement.
- The Court of Appeal's analysis in Dempsey v Director of Public Prosecutions [2019] NSWCA 267 was applied to confirm that a general discount applied to a costs quantum, without prior notice to the party affected, is itself a distinct denial of procedural fairness.
- Where both parties agree that jurisdictional error has occurred in a Local Court costs decision, the Supreme Court may exercise its jurisdiction to set aside the decision and remit the matter by consent.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 213, 214
- Supreme Court Act 1970 (NSW), s 69
Cases
- Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
- Dempsey v Director of Public Prosecutions [2019] NSWCA 267
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1