Nash v Silver City Drilling (NSW) Pty Ltd

[2017] NSWCA 100

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Criminal appeal
3. › Right of appeal
4. › Appeal from refusal to award costs
5. › Whether refusal to order costs is an 'order' within s 5AA(1)
6. › Effect of 2003 amendments adding 'whose application for an order for costs is dismissed'
7. › Criminal Appeal Act 1912 (NSW), s 5AA
1. Appeal
2. › Criminal appeal
3. › Right of appeal
4. › Standing to appeal
5. › Whether prosecutor is a 'person' for purposes of s 5AA(1)
6. › Prosecutor authorised under Work Health and Safety Act
7. › Criminal Appeal Act 1912 (NSW), s 5AA
1. Practice and Procedure
2. › Judicial review
3. › Availability of alternative remedy
4. › Whether supervisory jurisdiction appropriate where statutory appeal available
5. › Criminal Appeal Act 1912 (NSW), s 5AA
1. Statutes
2. › Construction
3. › Meaning of 'order'
4. › Whether refusal to make an order constitutes an 'order'
5. › Effect of subsequent amendment on meaning of existing statutory term
6. › Criminal Appeal Act 1912 (NSW), s 5AA

Quick Take

A prosecutor whose application for costs is refused in the District Court's summary jurisdiction has a right of appeal under s 5AA of the Criminal Appeal Act 1912 (NSW). The 2003 amendments to s 5AA(1)(b) expanded the meaning of 'order' to include a refusal to make a costs order, and the term 'person' in s 5AA(1) includes a prosecutor authorised to bring proceedings under the Work Health and Safety Act. Roslyndale remains good law only in relation to the definition of 'sentence' under s 5D, not in relation to the scope of 'order' under s 5AA as amended.