Hallaby v Harris [2020] NSWCA 12

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hallaby v Harris [2020] NSWCA 12 Hearing dates: On the papers Date of orders: 17 February 2020 Decision date: 17 February 2020 Before: Basten JA; McCallum JA Decision: (1) Direct that the prosecutor/informant be identified as the first respondent.

(2) Dismiss the summons seeking leave to appeal filed on 9 October 2019.

(3) Order that the applicant pay the costs of the first respondent (Senior Constable Harris) and, on a submitting basis, the costs of the Local Court of New South Wales. Catchwords: APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant's focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs

CRIMINAL PROCEDURE – costs – defendant's costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d) Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 213, 214 Evidence Act 1995 (NSW), s 138 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 In Re the Will of FB Gilbert (1946) 46 SR(NSW) 318 Li v Attorney General of NSW [2019] NSWCA 95 Category: Principal judgment Parties: Steven Hallaby (Applicant) Senior Constable Paul Harris (First Respondent) Local Court of New South Wales (Second Respondent) Representation: Counsel: Mr A Boe / Mr D Fuller (Applicant) Mr J King (First Respondent) Submitting appearance (Second Respondent)