Mitchell Gatenby v Senior Constable Ronald Duncombe [2015] NSWSC 551

Supreme Court New South Wales

Medium Neutral Citation: Mitchell Gatenby v Senior Constable Ronald Duncombe [2015] NSWSC 551 Hearing dates: 5 March 2015 Date of orders: 05 March 2015 Decision date: 12 May 2015 Jurisdiction: Common Law Before: Adams J Decision: (1)The summons is dismissed. (2)The plaintiff is to pay the first defendant's costs of the proceedings. Catchwords: Practice and procedure – costs – appeal against costs order Legislation Cited: Criminal Procedure Act 1986 Road Rules 2008 Road Transport (Safety and Traffic Management) Act 1999 Supreme Court Act 1970 Cases Cited: Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; 20 VR 481 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 O'Brien v Hutchinson [2012] NSWSC 429 Category: Principal judgment Parties: Mitchell Gatenby (Plaintiff) Senior Constable Ronald Duncombe (Defendant) Representation: Counsel: Mr T. Boyd (Plaintiff) Ms B. K. Baker (Solicitor) (Defendant)

Solicitors: Herbert Weller (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2014/00142350 Publication restriction: None

Judgment

Introduction 1. On 5 March 2015 the plaintiff's summons came before me for hearing. At the conclusion of argument I indicated that, for reasons sufficiently evident from the exchanges between Bench and Bar, the summons must be dismissed. Counsel for the plaintiff, Mr Boyd, indicated (though this does not appear on the transcript) that it was not necessary to formally provide reasons. Accordingly, the summons was dismissed with costs. However, on 18 March the plaintiff's solicitor informed me that the plaintiff wished to appeal and, accordingly, sought a judgment. This is that judgment. 2. The plaintiff was charged on 13 August 2013 with the offence of negligent driving (not occasioning death or grievous bodily harm) contrary to s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The charge concerned the manner of his driving, which allegedly caused a collision on Runnyford Road, Nelligen on 16 December 2012. The alleged negligence was particularised by the prosecutor as constituted by the plaintiff driving his vehicle across to the incorrect side of the road, thereby colliding with an oncoming vehicle. 3. On 14 April 2014 the plaintiff was acquitted. Pursuant to s 212 of the Criminal Procedure Act 1986 (NSW), counsel for the plaintiff sought an order for costs against the informant upon the basis that the prosecution failed to take a statement from the plaintiff or from a Mr Maidla (who arrived at the scene after the collision occurred) and failed to carry out investigations which, it was contended, would have shown that the plaintiff was on the correct side of the road at all relevant times or, at least, a "very significant doubt as to whether he was on the wrong side of the road or not". The application was refused. 4. The plaintiff seeks an order under s 69 of the Supreme Court Act 1970 (NSW) quashing this judgment and substituting an order in his favour. It follows that a mere mistake of fact will not be sufficient to justify relief. However, if there were no evidence capable of establishing a fact in issue, that would amount to an error of law justifying relief or, if the evidence could justify only one conclusion, the failure so to conclude would likewise amount to legal error. Here, the crucial question is, in substance, whether an investigation, properly carried out, must have demonstrated that there was or might be no proper basis for the charge as particularised and, accordingly, that the failure to conduct that investigation justified an order for costs. If so, the conclusion that there was no failure to undertake a proper investigation would constitute an error of law. 5. Rule 132(1) of the Road Rules 2008 requires a driver on a two-way road without a dividing line or median strip to drive to the left of the centre of the road (irrelevant exceptions aside). The road does not include the shoulder (r 12(2)(b)) and the "centre of the road" is defined in the Dictionary as "the far right side of the part of the road used by traffic travelling in the same direction as the driver". 6. So far as is relevant, the Criminal Procedure Act 1986 provides – 212 When costs may be awarded (1) A court may award costs in criminal proceedings only in accordance with this Act. (2) … 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) … (3) … (4) … (5) … 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 into 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 or 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) … (3) …