Supreme Court New South Wales Medium Neutral Citation: Stratton v Hallett [2014] NSWSC 368 Hearing dates: 20 March 2014 Decision date: 20 March 2014 Jurisdiction: Common Law Before: RS Hulme AJ Decision: (1)Set aside Magistrate Ryan's order. (2)Order that the first defendant in these proceedings pay the prosecutor's costs; (3)Grant to the first defendant an indemnity certificate under the Suitor's Fund Act 1951 in respect of costs of the appeal. Catchwords: ADMINSTRATIVE LAW - proceedings before the Local Court for Apprehended Domestic Violence Order - application withdrawn by police officer making application - whether Magistrate had the power to order costs - whether s 99 (4) Crimes (Domestic and Personal Violence) Act 2007 applies to the institution of proceedings by a police officer Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Criminal Procedure Act 1986 Suitor's Fund Act 1951 Cases Cited: Redman v Willcocks [2010] NSWSC 1268; 79 NSWLR 226 Category: Principal judgment Parties: Plaintiff: Sergeant Robert Stratton First Defendant: Carolyn Hallett Second Defendant: Local Court of New South Wales Representation: Counsel: R Ranken (Plaintiff) Solicitors: V Musico (Plaintiff) File Number(s): 2013/00247334 Judgment 1On 28 March 2013 Sergeant Robert Stratton filed an application for an Apprehended Domestic Violence Order (ADVO) against Carolyn Hallett pursuant to the Crimes (Domestic and Personal Violence) Act 2007. The application was filed on behalf of a person said to be in need of protection (PINOP), Mr Steven Pohl. 2The matter was set down for hearing on 17 July 2013 before Magistrate Ryan at the Moss Vale Local Court. However, the police prosecutor formally withdrew the application on the day. The proceedings were dismissed and Ms Hallett through her solicitor then applied for costs. In the result Magistrate Ryan made an order; "... the applicant is to pay the defendant's costs as agreed or assessed." [T42.20] 3By summons filed in this Court on 13 November 2013, Sergeant Stratton as Plaintiff seeks the following orders; 1. A stay of the order of the second defendant (Magistrate Ryan) made at Moss Vale on 17 July 2013 that the plaintiff pay the first defendant's costs of those proceedings as agreed or assessed, until the determination of these proceedings. 2. As order pursuant to s55 (1)(a) of the Crimes (Appeal and Review) Act 2001 by virtue of s 70 of the Local Court Act 2007 setting aside the order of the second defendant made at Moss Vale on 17 July 2013 that the plaintiff pay the first defendant's costs of those proceedings as agreed or assessed. 3. In the alternative to 2 above, an order pursuant to s59(2)(a) of the Crimes (Appeal and Review) Act 2001 by virtue of s 70 of the Local Court Act setting aside the order of the second defendant. 4. In the alternative to 2 and 3 above, an order in the nature of certiorari that the record of Local Court proceedings be brought up and the order of the second defendant that the plaintiff pay the first defendant's costs of those proceedings as agreed or assessed to be quashed. 5. A declaration that the second defendant had no jurisdiction to award costs against the plaintiff in apprehended violence order proceedings in circumstances where the second defendant was not satisfied of the matters in s99 (4) of the Crimes (Domestic and Personal Violence) Act 2007 and was not satisfied that the plaintiff had engaged in any procedural misconduct in those proceedings. Legislative framework 4The statutory provisions relevant to the awarding of costs in relation to an application for an Apprehended Domestic Violence Order (ADVO) are s99 of the Crimes (Domestic and Personal Violence) Act 2007 and Division 4 Part 2 Chapter 4 of the Criminal Procedure Act 1986. So far as presently relevant, these provide: 99 Costs (1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section (2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious. (4) A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular. (5) Subsections (3) and (4) have effect despite any other Act or law. 5In terms, Division 4 Part 2 Chapter 4 of the Criminal Procedure Act 1986 relates to costs in criminal proceedings. Although proceedings for personal violence orders are not strictly criminal proceedings, s99 (2) makes Division 4 applicable. The relevant sections in the Division are as follows; 212 When costs may be awarded (1) A court may award costs in criminal proceedings only in accordance with this Act. (2) This act does not affect the payment of costs under the Costs in Criminal Cases Act 1967. 213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: the prosecutor fails to appear or both the prosecutor and the accused person fail to appeal, or the matter is withdrawn or the proceedings are for any reason invalid (4) (Repealed) (5) The order must specify the amount of professional costs payable. 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: (a) that the investigation unto the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner. (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty of that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. Legislative interpretation 6A consideration of these provisions reveals a degree of incongruity, particularly as they offer two different tests for ordering costs against a police officer in an application for Apprehended Domestic Violence Orders. That incongruity was the subject of extensive consideration by Davies J in Redman v Willcocks [2010] NSWSC 1268; 79 NSWLR 226 at [19]-[41]. In the proceedings before me there was no challenge to the conclusions at which his Honour arrived and I am content to be guided by them. 7His Honour reconciled the provisions by holding that s 99 governed the institution of proceedings whereas s 214 applied to procedural misconduct in the conduct of them. In his Honour's words, at [21]:- (a) The Court may not award costs against a police officer making an application in relation to the application generally and its determination unless the Court is satisfied that the police officer made the application knowing that it contained matter that was false and misleading in a material particular. The Magistrate's judgment 8In the course of her reasons for making the costs order than she did, Magistrate Ryan made the following findings; (1) that s 99 (3) cannot apply in this case, as the police are not the party for whom the order for protection is sought; (2) that she could not find an award of costs against the police officer under s 99 (4) as she was not satisfied he made the application knowing it contained matter that was false or misleading in a material particular; (3) that she did not believe the investigating officer misled the court through the application; (4) that she did not believe there were grounds for concluding that the investigation was carried out in an improper manner; (5) that she did not believe the prosecutor instituted the proceedings without reasonable cause; (6) that there was nothing to suggest the matter was initiated in bad faith or in an improper manner; (7) that the prosecution should have investigated the nature of the relationship between Mr Pohl and Ms Hallett because Mr Pohl had changed his story; (8) that it was unreasonable for the prosecutor not to have investigated properly the change or story; (9) there was nothing procedurally at the court that the police failed to do. 9These findings do not suffice to justify an order for costs under s 99 of the Crimes (Domestic and Personal Violence) Act or an order under the Criminal Procedure Act if, as I believe, those Acts are to be interpreted as Davies J indicated in Redman v Willcocks. 10In these circumstances, I set aside Magistrate Ryan's order that: "... the applicant is to pay the defendant's costs as agreed or assessed." 11I order that the first defendant in these proceedings pay the prosecutor's costs. 12I note that there has been an undertaking given by the plaintiff to the first defendant that it will not seek to enforce the order for costs to an extent greater than the amount provided from the Suitor's Fund. 13I grant to the first defendant an indemnity certificate under the Suitor's Fund Act 1951 in respect of the costs of the appeal. ********** 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. Decision last updated: 01 April 2014