DIRECTOR OF PUBLIC PROSECUTIONS v YALDA [1998] NSWCA 277

DIRECTOR OF PUBLIC PROSECUTIONS v YALDA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, MEAGHER JA and BEAZLEY JA 4 September 1998

[1998] NSWCA 277

Costs — magistrate declines to make order for costs — no jurisdiction of District Court to hear appeal from Magistrate — s122 Justices Act 1902

Mason P. A number of informations were laid against the first Opponent in the Local Court. They were heard summarily and dismissed. Section 81(4) of the Justices Act 1902 addresses the power of a magistrate to award costs in favour of the defendant in that situation. It provides that costs are not to be awarded in favour of a defendant unless the justice is satisfied as to any of one of four stated matters.

We were informed today that reasons were given by the Magistrate, Mr Rustin, for his decision not to award costs. The operative order therefore was that the informations were dismissed. The Magistrate declined to make an order for costs in accordance with the statute.

An appeal was brought to the District Court in reliance upon s 122 of the Justices Act. It is clear, and counsel for the first Opponent has franklyacknowledged it, that the purpose of such an appeal was to seek to ventilate de novo the issue relating to costs. We have not considered in any detail whether an alternative means by way of a case stated was available to challenge the refusal to make an order for costs.

The claimant appeared by counsel before his Honour Judge Horler, QC, ADCJ, and took the point that s 122 of the Justices Act did not confer jurisdiction to entertain the appeal. His Honour recorded the competing submissions in a judgment given on 12 January 1998, said that he had jurisdiction, and indicated that because of the exigencies of heavy lists he would provide detailed reasons subsequently. I do not understand or read the judgment as indicating any present reasons and I am not aware that any subsequent reasons were provided. This summons was then brought, challenging the jurisdiction of the District Court to entertain the purported appeal.