O'Brien v Hutchinson

[2012] NSWSC 429

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. JUDICIAL REVIEW - local court - certiorari - costs
1. in criminal case - whether magistrate applied proper test to determine whether
1. investigation unreasonable or whether proceedings initiated without reasonable
1. cause

Where a costs order under s 213(1) is refused, jurisdictional error is established only if the Local Court misapprehended the limits placed on it by s 214; the reviewing court does not itself determine whether the s 214(1) criteria were met, but must identify a 'misapprehension' by the lower court as distinct from a mere disagreement with its conclusion.
Evidence that was inadmissible at the criminal hearing (e.g. as too remote or hearsay) is not necessarily irrelevant to the separate question under s 214(1)(b) of whether proceedings were initiated without reasonable cause, assessed at the time of initiation.
Where s 214(1) criteria involve normative judgments (e.g. 'unreasonable', 'improper', 'exceptional circumstances'), demonstrating misapprehension in the Craig sense is more difficult, and the reviewing court will not substitute its own evaluative assessment for that of the magistrate.