Mahmoud v Sutherland [2012] NSWCA 306

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mahmoud v Sutherland [2012] NSWCA 306 Hearing dates: 12 September 2012 Decision date: 26 September 2012 Before: Barrett JA (at [1]), Tobias AJA (at [54]), Blanch J (at [55]) Decision: 1. Order that the order of dismissal made by the District Court on 6 May 2011 be set aside insofar as it dismissed the appeal of Tosson Mahmoud against the costs order made against him by the Local Court on 20 April 2010. 2. Order that the appeal of Tosson Mahmoud against the said costs order be remitted to the District Court for determination according to law. 3. Order that the summons filed by Tosson Mahmoud in this Court on 4 October 2011 be otherwise dismissed. 4. No order as to costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - apprehended violence order - Local Court dismisses application for apprehended violence order and makes costs order against applicant - appeal by applicant to District Court dismissed - applicant seeks review of District Court's decision by Court of Appeal - scope of review limited to jurisdictional error - function of District Court on appeal by way of rehearing - no jurisdictional error with respect to decision on making of apprehended violence order - failure to address statutory pre-condition to existence of power to make costs order - jurisdictional error established in relation to the costs order. Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 18, 19 Crimes (Domestic and Personal Violence) Act 2007, ss 19(1), 20(1), 20(2), 84, 99 District Court Act 1973, ss 127, 176 Cases Cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 DAR v Director of Public Prosecutions (Qld) [2008] QCA 309 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Garde v Dowd [2011] NSWCA 115 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Spanos v Lazaris [2008] NSWCA 74 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 Texts Cited: Aronson, "Jurisdictional error without the tears", in Groves and Lee (eds), Australian Administrative Law - Fundamentals, Principles and Doctrines (2007) Category: Principal judgment Parties: Tasson Mahmoud - Plaintiff Vincent Sutherland - First Defendant District Court of New South Wales - Second Defendant Representation: In person - Plaintiff In person - First Defendant Submitting Appearance - Second Defendant In person - Plaintiff In person - First Defendant I V Knight, Crown Solicitor - Second Defendant File Number(s): 2011/316382