New South Wales Supreme Court CITATION : Jordan v O'Shane [2000] NSWSC 831 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11462/00 HEARING DATE(S) : 21 August 2000 JUDGMENT DATE : 21 August 2000 James Jordan (Plaintiff) Patricia O'Shane LCM (1st Defendant) PARTIES : Sen. Con. Philip Taylor (2nd Defendant) Local Court of New South Wales (3rd Defendant) Micheal Kefaloukas (4th Defendant) JUDGMENT OF : Dunford J LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Ms Patricia O'Shane JUDICIAL OFFICER : Mr Reynold / Mr White (Plaintiff) COUNSEL : Ms P McDonald (1st and 3rd Defendants) Mr M Spartalis (2nd Defendant) Ms N Mikhaiel (4th Defedants) (submitting) Xenos Jordan (Plaintiff) SOLICITORS : IV Knight (1st and 3rd Defendants) Michael N Holmes (2nd Defendant) Konstan Lawyers (4th Defendant) (submitting) CATCHWORDS : CRIMINAL LAW & PROCEUDRE - restoration of stolen property - application in absence of person in posssession of such property - procedural fairness LEGISLATION CITED : Crimes Act 1900, s 438 CASES CITED : Jones v Dunkel (1959) 101 CLR 298 DECISION : See paras 22 & 23. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Monday, 21 AUGUST 2000 11462/00 - James JORDAN v Patricia O'SHANE & ors JUDGMENT 1 HIS HONOUR: This is an appeal by the plaintiff pursuant to s 104 of the Justices Act 1902 seeking to set aside an order made by the first defendant pursuant to s 438 of the Crimes Act 1900, since repealed, for the return to the fourth defendant of property claimed to be the property of the fourth defendant. 2 The proceedings arise out of criminal proceedings taken against one Bill Aslanidis who was charged with stealing a billiard table and accessories, the property of the fourth defendant. In due course the second defendant, who is a Local Court Magistrate, found the offence proved but discharged Mr Aslanidis pursuant to s 556A of the Crimes Act, also since repealed. 3 According to the Bench Sheet, her Worship also made the following order: "Pursuant to provisions of s 438 Crimes Act the Court is satisfied that the subject property was received by James Jordan, solicitor, contrary to the provisions of the Crimes Act and the order is made that the subject property be restored to Dr Michael Kefaloukas of Ramsgate." 4 The plaintiff, Mr Jordan, was the person found in the possession of the billiard table and gave evidence for the prosecution in the proceedings against Mr Aslanidis. Although the whole transcript of the proceedings has been tendered I have not been invited to read it all and have not done so, my attention only being directed to the parts relevant to this appeal. 5 The Amended Summons named as defendants the Magistrate as first defendant, Senior Constable Phillip Taylor, the informant in the prosecution of Mr Aslanidis as second defendant, the Local Court of New South Wales as third defendant and Michael Kefaloukas the alleged owner of the billiard table as fourth defendant. 6 All defendants filed submitting appearances except as to costs, and Senior Counsel for the plaintiff indicated that his client did not seek costs against the fourth defendant, but did seek costs against the other defendants including the Magistrate. 7 The evidence discloses that although Mr Jordan gave evidence for the prosecution in the Local Court proceedings he was not happy with the attitude towards him displayed by the learned Magistrate; so much so that he wrote to the Judicial Commission of New South Wales formally complaining about her conduct, and subsequently he has commenced defamation proceedings against a Greek language newspaper in regard to its reporting of the proceedings. 8 The appeal before this Court was instituted outside the time fixed by SCR Pt 51 r 6(2)(a), but having regard to the material in the affidavit and the fundamental defect in the order that was made I am satisfied that the time for appealing should be extended and I so order. 9 The grounds of the appeal quite simply are that the application for the order under s 438 was made in the absence of the present plaintiff; he had no notice of the application and he was given no opportunity to respond to it and, accordingly, he was denied natural justice and procedural fairness. 10 As I say, all the defendants to the summons have filed submitting appearances except as to costs, and the plaintiff is clearly entitled to an order setting aside the order against which the appeal is brought. The main argument has been as to the costs. The transcript of the proceedings in the Local Court records no application being made for the order and a lot of the hearing time today has been directed to the question of whether an application had in fact been made for an order and, if so, who made it, when it was made and in what circumstances. 11 It was admitted that the prosecutor made the application, but she cannot now recall whether it was made on the date of sentencing or on a prior occasion. The making of the application is not recorded in the transcript and in those circumstances I infer that it was probably made after the sentencing process was complete. 12 It is not known whether it was made in the presence of Mr Aslanidis, the defendant in the Local Court proceedings, but I am satisfied that it was certainly made in the absence of the present plaintiff. 13 Mr Reynolds, Senior Counsel for the plaintiff, has referred me to the correspondence that his solicitors wrote to the solicitors for the first, second and third defendants respectively seeking information as to when, by whom, and in what circumstances the application for the order was made, and in those letters the point was made that in the absence of a response the principle of Jones v Dunkel (1959) 101 CLR 298 would be relied on, and the Court would be asked to infer that no evidence which the respective defendants could give could assist their respective cases. 14 That is all very well but although the principle in that case is well known it does not extend to filling in gaps in the case of the party which carries the onus of proof and the failure to respond to those letters could not, of itself, constitute evidence or lead to any inference, that the first defendant had made the orders without any application of any kind being made to her. 15 The circumstances in which an order for costs will be made against a judicial officer are very limited and the principles are well established. Before an order could be made against a judicial officer it would be necessary to show positively that she had been guilty of serious misconduct, perversity and/or gross ignorance. Even without the admission subsequently made by Mr Spartalis there was, in my view, no evidence before the Court at any time that the Magistrate in making the order under s 438 had acted perversely or had been guilty of serious misconduct or gross ignorance, although she had clearly denied natural justice to the present plaintiff. The Clerk of the Local Court had merely sought to give effect to the orders made by the Magistrate. 16 Accordingly, no ground has been shown for making an order for costs against the first or third defendants. 17 In relation to the second defendant, I accept the evidence of Senior Constable Taylor that he did not make any application and did not give any instructions to the Police Prosecutor to make such an application. However, the Police Prosecutor appears in Local Court proceedings by leave as representative of the complainant and I am satisfied that in making the application the Police Prosecutor was acting on behalf of the complainant, Senior Constable Taylor; and as the Prosecutor made the application on his behalf and made it in the absence of the plaintiff, it is appropriate that Senior Constable Taylor be ordered to pay the plaintiff's costs of the appeal. 18 Appeals under Part 5 of the Justices Act are now governed by SCR Pt 51B r 10 which provides that where the tribunal appealed from is a court, such court shall not be joined as a defendant to the appeal. It follows that the summons commencing these proceedings should therefore have joined only the original complainant, Senior Constable Taylor and Dr Michael Kefaloukas the person who would be affected if the appeal were upheld. If that had been done these proceedings would have been short and simple, the appeal would have been upheld, and an order for costs against the original complainant made as a matter of course. 19 On behalf of the plaintiff costs are sought on a solicitor and client basis, however, although the Police Prosecutor acted somewhat ineptly in seeking the order in the absence of the plaintiff, I am satisfied that this was accidental and not done maliciously or contumeliously, and was probably through ignorance rather than anything else, and the costs will be on the ordinary party and party basis. 20 Notwithstanding the side issues that appear to have crept into the matter, I do not see that it required the engagement of senior counsel, particularly having regard to the value, or lack thereof, of the billiard table in question. 21 An application has been made on behalf of the first and third defendants that the plaintiff should pay their costs on the grounds that they have been involved in the proceedings because orders for costs have been sought against them and such costs have not been awarded. There is considerable merit in this application but, having regard to the amount involved in the proceedings, to make such an order would, substantially deprive the plaintiff of the benefit of bringing the proceedings and, therefore, I will not make any order in favour of costs for the first and third defendants. 22 Accordingly, I make the orders that I grant an extension of time for the institution of the appeal up to the date of the filing of the summons, the appeal is upheld, the ruling and finding of the Local Court pursuant to s 438 of the Crimes Act is set aside, I order the second defendant to pay the plaintiff's costs of appeal and I make no order as to the costs of the first and third defendants. 23 All orders relating to costs are subject to the orders for costs of the day made on 7 August 2000. Exhibits may be returned. o0o Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.