M v Joya

1. [1]

   PRICE AJA: These proceedings arise from a decision by Magistrate Barlow (“the Magistrate”) in the Local Court made on 21 March 2025 refusing the plaintiff’s application for a costs order against the first defendant, Constable Samuel Joya, under ss 213 and 214 of the Criminal Procedure Act 1986 (NSW) (“the CPA”), when the charge against the plaintiff for contravening an apprehended domestic violence order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the CDPV Act”), was withdrawn.

2. [2]

   By summons filed on 12 July 2025, the plaintiff challenges the Magistrate’s decision by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). During the hearing, the plaintiff no longer pressed prayer 3 of the summons and therefore seeks relevantly the following orders:

3. [3]

   The plaintiff relies on the following two grounds of review (Ground 3 is no longer pressed):

4. [4]

   The second defendant, the Local Court of New South Wales, has filed a submitting appearance. In these reasons, I will refer to the first defendant in submissions as “the defendant”.

Extension of time

1. [5]

   The plaintiff requires an extension of time within which to bring these proceedings having filed its summons around 21 days out of time: r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 59.10 of the UCPR specifies that proceedings for judicial review must be commenced within 3 months of the date of the decision subject to the power of the Court to extend that time.

2. [6]

   The principles applicable to the consideration of an application for an extension of time are well-known: Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64 at [56] (Ward P, Brereton JA and Griffiths AJA agreeing) and the authorities there cited. The relevant factors to be considered in determining whether to extend time include those provided under r 59.10(3) of the UCPR and in addition, the length of any delay, the reason for the delay and whether the plaintiff has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA, Barrett and Gleeson JJA agreeing) citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA) and Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA, Barrett and Emmett JJA agreeing). The plaintiff bears the onus of persuading this Court that the extension of time should be granted.

3. [7]

   The plaintiff submitted five arguments in support of its application for an extension of time which it argued when considered in combination favoured the time being extended citing RB v Director of Public Prosecutions (NSW) [2015] NSWSC 248 at [17]-[19] (Hidden J) (“RB”). The plaintiff’s submissions included that there was no prejudice to the defendant flowing from the delay of around 21 days and an explanation as to the reasons for the delay are provided in the filed affidavit of the plaintiff’s solicitor sworn 17 October 2025; the plaintiff has a particular interest in challenging the Magistrate’s decision given that the charges were withdrawn by police; there is a public interest in correcting patent errors in the decisions of the Local Court; and the plaintiff has a fairly arguable case for judicial review of the Magistrate’s decision.

4. [8]

   The defendant opposes the extension of time but concedes that there is limited prejudice suffered by it if the extension were to be granted. In the defendant’s written submissions, the arguments opposing the extension were advanced with particular reliance on the decision of Faulkner J in Mikhaylova v Commissioner of New South Wales Police [2025] NSWSC 542 at [92]-[93] (“Mikhaylova”). The difficulty which immediately arises from the defendant’s reliance on Faulkner J’s decision in Mikhaylova is that his Honour in that case granted an extension of time in relation to a summons which was filed around 3 months out of time: at [94]. The defendant further argued that there is a strong public interest against allowing a challenge to a costs decision and that the plaintiff’s case lacked merit. In oral submissions, the defendant’s counsel, Mr Bhasin submitted that the extension of time application will turn on my consideration of the plaintiff’s grounds of review.

5. [9]

   As will be evident from my consideration of the plaintiff’s grounds of review below, the plaintiff has a fairly arguable case. Accordingly, I am satisfied that the plaintiff should be granted an extension of time to commence these proceedings under r 59.10(2) of the UCPR.

Background

1. [10]

   On 18 January 2024, the plaintiff was charged with a number of domestic violence offences against the complainant, his ex-wife. An ADVO was granted on that day for the protection of the complainant and their two children, VC and EC. It was a standard condition of the ADVO that the plaintiff was neither to approach nor to contact the complainant, VC and EC.

2. [11]

   It was alleged that the plaintiff breached the ADVO when he and his mother were seen by VC and the complainant at the Waverley netball courts on 14 September 2024. The complainant and VC provided statements to police on 16 September 2024. VC was 9 years old at the time.

3. [12]

   In VC’s statement, she stated that she was at the Waverley netball courts to watch EC play netball and had taken the dog for a walk with her friend, LW, who was also a child aged around 9 years old, when she saw the plaintiff and his mother at the bottom of the stairs near the canteen. VC said that the plaintiff had tried to wave her over to him but after seeing the plaintiff, she turned around and went back up the stairs to the complainant. The complainant in her statement stated that VC came running up the stairs and told her she had seen the plaintiff and his mother. The complainant said she initially thought VC was mistaken about seeing the plaintiff and his mother but when she went over to the top of the stairs with VC, she then saw it was them. The complainant stated that when she saw the plaintiff and his mother, they were walking away from the netball courts and did not see her. This version of events was reproduced in the police facts.

4. [13]

   The plaintiff was subsequently arrested by police later that day on 16 September 2024 and charged with contravening an ADVO contrary to s 14(1) of the CDPV Act. The plaintiff did not participate in an electronically recorded interview with police.

5. [14]

   The matter was listed for hearing at the Waverley Local Court on 11 February 2025. However, on the morning of the hearing the charge against the plaintiff was withdrawn and on that basis the plaintiff brought an application for costs under ss 213(1) and 214 of the CPA which was heard on 21 March 2025.

Relevant legislation

1. [15]

   The relevant provisions of ss 213 and 214 of the CPA are as follows:

A summary of the proceedings in the Local Court

1. [16]

   In the proceedings in the Local Court, the statements of the complainant and VC were tendered together with photographs of the CCTV cameras in the area of the Waverley netball courts. Constable Joya’s evidence in chief included attending the Waverley netball courts after obtaining the statements from the complainant and VC to ascertain whether there were “any cameras … on that incident”: Tcpt, 21 March 2025, p 5(15-19). He said there was no footage capturing the incident although there were a number of cameras located in that area. Constable Joya stated that he and Constable Magill undertook a thorough search but he was unable to identify the incident taking place. He did not obtain the CCTV footage, but accepted that it would have been better to have obtained it.

2. [17]

   Constable Joya gave evidence that he was aware that there were allegations of the plaintiff’s mother being present at the scene and agreed that she would be a direct witness to the incident. On this issue, Constable Joya gave the following evidence:

3. [18]

   Constable Joya was asked about LW, who he agreed was another direct witness and said was also a child. He said no details were taken about LW. He agreed that there was nothing stopping him obtaining LW’s details. During Constable Joya’s cross-examination, statements of Constables Anderson and Townsend, who were the arresting officers, were tendered as were police body worn video recordings of the statements made by the complainant and LW.

4. [19]

   Constable Joya gave evidence that on the day before the hearing, a document stating that the plaintiff’s mother had not been in Australia was brought to his attention as were receipts of a purchase that the plaintiff had made and CCTV footage of him at a café allegedly in the Northern Beaches area. Constable Joya said that he spoke to the complainant the day before the hearing, who told him that VC was not going to come to the court as she was a child and she was not going to put VC through that. He explained to the complainant the significance of VC being there, but she still declined. Neither the complainant nor VC came to court on the day of the hearing.

5. [20]

   In re-examination, a document regarding the plaintiff’s mother not being in Australia (Ex 6), receipts from a café (Ex 7), a document from Westpac Banking Corporation (Ex 8), and text messages from the plaintiff to a person called “Stephanie” (Ex 9), were admitted as being documents shown to Constable Joya on the day before the charge was listed for hearing.

6. [21]

   Constable Anderson in her statement recounted that she and Constable Townsend spoke to the plaintiff at his residence at Belrose on 16 September 2024 and placed him under arrest. The police officers escorted the plaintiff to his vehicle where “he got some paperwork out which he stated would show he was in the Northern Beaches rather than at the Waverly [sic] netball courts … [Constable Anderson] viewed the paperwork and determined that with the timings, it did not put the [plaintiff] in the Northern Beaches at the time of the offence”.

7. [22]

   Exhibit 6 was a document entitled “Movements Details”, which appears to show that the plaintiff’s mother departed Australia on 12 February 2016 and her “Lawful Status” was “Offshore - Departure”.

8. [23]

   Exhibit 7 are photographs of credit card receipts for purchases at a Narrabeen café on 14 September 2024. Exhibit 8 is a letter from Westpac to the plaintiff confirming that a transaction at a café in Narrabeen was presented to the plaintiff’s credit card “at 14:10 AEST on 14 September 2024”. The text messages in Ex 9 included pictures of the lunch and Narrabeen Lake.

9. [24]

   In oral submissions the plaintiff’s solicitor, Mr Chan, informed the Magistrate that he relied on ss 214(1)(a), (c) and (d) of the CPA. Mr Chan referred to the failure by police to make any investigations about the plaintiff’s mother or LW both of whom were direct witnesses. He pointed out that the police could have obtained the plaintiff’s mother’s immigration records which would have shown that she was not in the country. Whilst Constable Joya indicated he had spoken to the complainant about the plaintiff’s mother, he stated nothing came from it including no record of her name or date of birth.

10. [25]

    Mr Chan further submitted that police failed to obtain details of or speak to LW or the occupants of the house where the plaintiff was residing on bail. A further submission was made of the failure by police to investigate the CCTV footage which police viewed but did not obtain.

11. [26]

    In relation to s 214(1)(d) of the CPA, Mr Chan referred to representations being submitted to police on 4 February 2025, but the decision was made to withdraw only on the morning of the hearing. Mr Chan pointed out that on 10 February 2025, the day before the hearing at 4:41pm, it was confirmed that the hearing was still proceeding. Mr Chan said that this was a secondary issue and limited to exceptional circumstances. Mr Chan submitted that the charges were laid on the same day being 16 September 2024 and no further investigation was carried out. What was relied on were the statements of the complainant and VC. He submitted that “… nothing exculpatory canvassed or investigated, even though the evidence today is that there were those options and there was no reason proffered - and the officer agreed that there was no reason proffered as to why that was not done”: Tcpt, 21 March 2025, p 31(42-46).

12. [27]

    The police prosecutor submitted that in relation to s 214(1)(a) of the CPA, Constable Joya had reviewed the CCTV footage which did not identify anything and he did not retain it. He submitted that conduct did not represent an unreasonable or improper investigation and neither did the failure to obtain the statements from the plaintiff’s mother and LW. He further argued that the police did not need to identify every potential line of inquiry and that the plaintiff had not raised any matter which would satisfy s 214(1)(d) of the CPA to make out exceptional circumstances. The police prosecutor submitted that the plaintiff was given the opportunity by police to respond to his whereabouts on the date of the incident by Constable Anderson who examined the material he provided and could not reconcile it with the information they had obtained. The police prosecutor contended there was a proper investigation; the plaintiff was given the opportunity to provide exculpatory material but he did not do that until 4 February 2025. That material only came to Constable Joya’s attention on the day before the hearing.

13. [28]

    The police prosecutor submitted that it would be relevant to his Honour’s consideration of whether it was just and reasonable in the circumstances to make a costs order that the plaintiff had to come to the Court regardless on 11 February 2025 for “a different [ADVO] charge” that was still awaiting hearing.

14. [29]

    In the Magistrate’s ex tempore judgment, his Honour stated that the plaintiff relied on ss 214(a),(c) and (d) of the CPA and after briefly summarising the evidence given in the statements of the complainant and VC, his Honour addressed what he had identified as the four complaints raised by the plaintiff regarding the conduct of the investigation by the defendant. His Honour said the following in relation to the plaintiff’s first complaint:

15. [30]

    The Magistrate next addressed the plaintiff’s complaint in relation to the defendant’s failure to obtain a witness statement from LW:

16. [31]

    His Honour then considered the plaintiff’s argument regarding the defendant’s failure to obtain a witness statement from his mother:

17. [32]

    In terms of the defendant’s failure to obtain a statement from the plaintiff’s mother, the Magistrate considered that:

18. [33]

    In relation to the plaintiff’s final complaint, the Magistrate stated:

19. [34]

    The Magistrate then observed:

20. [35]

    In dismissing the plaintiff’s application, the Magistrate concluded:

A summary of the plaintiff’s submissions

1. [36]

   The plaintiff’s submissions under Ground 1 proceeded principally on the basis that the Magistrate having taken into account a number of irrelevant considerations fell into jurisdictional error. As to the CCTV footage, the plaintiff submitted that his Honour erred in the passage of his judgment quoted at [29] above. The plaintiff contended in respect of the non-disclosure of the CCTV footage, Constable Joya failed to include in his witness statement that he had in fact attended Waverley netball courts but failed to obtain that footage. He did not include any suggestion that the CCTV footage he had viewed was potentially exculpatory in his witness statement. The plaintiff argued that the volume of potentially exculpatory material was not a relevant consideration under s 214(1) of the CPA.

2. [37]

   The plaintiff submitted that the duty of disclosure imposed on the prosecution required a “broad view of relevance and of what are the issues in the case” citing R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [58] (Hodgson JA) (“Reardon”) and Bradley v Senior Constable Chilby [2020] NSWSC 145; (2020) 281 A Crim R 336 at [46]-[49] (Adamson J). The plaintiff contended that it was not for the defendant to simply form a view that the CCTV footage did not inform the prosecution case. Accordingly, the Magistrate’s view of the “relevance” of the CCTV footage and his Honour’s apparent acceptance of the defendant’s assertion that the material was “not relevant” was wrong. The plaintiff further argued that the defendant’s duty of disclosure extended to putting the defence on a line of inquiry based on the material that had been disclosed which included exculpatory material.

3. [38]

   The plaintiff was critical of the Magistrate’s characterisation of the charge as not being “extremely serious” in the passage quoted at [30] above. The plaintiff contended that the seriousness of the charge did not dilute, nor did it enlarge the prosecution’s duty of disclosure in relation to obtaining a statement from LW. The plaintiff submitted that LW’s age was an irrelevant consideration and the Magistrate’s approach to LW’s evidence was erroneous. The plaintiff argued that the correct question to be asked by his Honour was not whether interviewing and calling LW would have made a difference to the way the trial would run, but rather whether the failure to do so meant that the investigation was conducted in an unreasonable or improper manner.

4. [39]

   As to the plaintiff’s mother, the plaintiff submitted that the Magistrate’s approach by asking how the trial would have been conducted was erroneous. On the question of costs, the correct approach was to focus on whether the investigation prior to the trial ought to have been conducted in a reasonable and proper manner citing De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [32] (Davies J) (“De Varda”).

5. [40]

   As to the alibi evidence, the plaintiff was critical of the Magistrate’s finding in the passage quoted at [33] above that the alibi material was not available to the defendant until the day before the hearing. The plaintiff argued that his Honour impermissibly focused on the timing rather than on the capacity of the defendant obtaining that evidence well before the charge was heard in court. The plaintiff submitted that the duty of disclosure was an ongoing duty and did not fall away when the brief of evidence was served. This was so when the defendant knew that the plaintiff proffered an alibi to Constable Anderson.

6. [41]

   In terms of Ground 2, the plaintiff contended that the Magistrate misapprehended the law regarding a prosecutor’s duty to disclose any exculpatory matters to an accused in an adversarial criminal hearing which resulted in his Honour making erroneous comments (suggestive of that misapprehension) throughout the course of his ex tempore judgment.

A summary of the defendant’s submissions

1. [42]

   The defendant submitted that jurisdictional error is established where the Magistrate misapprehended the limits on his jurisdiction to award costs under ss 214(1)(a)-(d) of the CPA citing O’Brien v Hutchinson [2012] NSWSC 429 at [7] (Beech-Jones J) (“O’Brien”). The defendant submitted that this must involve identification of a misapprehension by the Magistrate, and not mere disagreement with his Honour’s conclusions.

2. [43]

   The defendant contended that none of the “matters” particularised under Ground 1 by the plaintiff are considerations that the Magistrate was, as a matter of statutory construction prohibited from taking into account.

3. [44]

   As to the complaint about the Magistrate’s finding that Constable Joya’s investigation of the CCTV footage was not unreasonable or improper, the defendant argued that the plaintiff’s submissions did not address any prohibited consideration. The defendant asserted the plaintiff’s arguments did not reveal any consideration that as a matter of law the Magistrate was prohibited from taking into account, let alone that it led his Honour to misapprehend the nature of his powers.

4. [45]

   As to the complaint concerning the Magistrate’s finding that he was not satisfied the investigation was improper or unreasonable because of Constable Joya’s failure to take a statement from LW, the defendant argued that his Honour’s observation as to the general approach of police in Local Court matters of this nature not to interview child witnesses, was part of his normative assessment and not any error of law, let alone a misapprehension of jurisdiction.

5. [46]

   As to the complaint that the Magistrate took into account irrelevant considerations when observing that it was quite common in Local Court matters for the prosecutor to “fail to take statements from what seem to be relevant witnesses”, the defendant argued that it was part of the Magistrate’s normative assessment. The defendant submitted that his Honour’s observations as to common prosecutorial practice in the Local Court could not be a prohibited consideration that gave rise to jurisdictional error. Furthermore, his Honour’s observations relating to the plaintiff’s alibi type material did not involve jurisdictional error. The police officer’s subjective awareness of matters was, as the plaintiff contended, a permissible consideration in determining whether the police investigation was objectively reasonable.

6. [47]

   The defendant further submitted there was no duty on a prosecutor to investigate an accused person’s case on his behalf citing HO v R [2023] NSWCCA 245 at [88] (Wilson J) and at the time at which the material supporting the plaintiff’s alibi was drawn to the attention of the police prosecutor was submitted to be plainly relevant to the Magistrate’s normative assessment of the adequacy of the investigation. The defendant argued that a prosecutor’s ongoing duty of disclosure was of no relevance.

7. [48]

   In oral submissions, on the failure of Constable Joya to take a statement from the plaintiff’s mother, Mr Bhasin contended that (Tcpt, 3 December 2025, p 22(12-16)):

8. [49]

   Mr Bhasin submitted that in respect of the failure to take a statement from LW and the plaintiff’s mother, “the practise before the Local Court by police is a factor that a magistrate is entitled to have regard to in dealing with the very broad question of whether an investigation was unreasonable or improper”: Tcpt, 3 December 2025, p 23(25-28).

9. [50]

   As to Ground 2, the defendant submitted that this ground fails to identify any principle of law that the Magistrate misapprehended amounting to jurisdictional error. The defendant argued that Ground 2 and the plaintiff’s submissions elide a prosecutor’s duty to disclose material in their possession with an asserted obligation “to investigate (or to investigate properly)”.

10. [51]

    Before venturing further, it is convenient to refer to the relevant principles to be applied where there is a complaint of jurisdictional error.

Relevant Principles

1. [52]

   As the High Court broadly described in Craig v The State of South Australia (1995) 184 CLR 163 at 177-178 (Brennan, Deane, Toohey, Gaudron, McHugh JJ); [1995] HCA 58 (“Craig”), the circumstances in which an inferior court will fall into jurisdictional error are:

2. [53]

   Further in Craig, in distinguishing between administrative tribunals and inferior courts, the High Court explained at 179-180:

3. [54]

   In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”), the majority of the High Court reinforced what was said in Craig and stated at [72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

4. [55]

   More recently, in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3, the principles identified in Craig and Kirk were restated by the majority of the High Court at [57] (Gordon, Edelman, Steward and Gleeson JJ):

5. [56]

   In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (“LPDT”), the plurality of the High Court set out the following categories of jurisdictional error at [3] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ):

6. [57]

   Whilst the categories of jurisdictional error are not closed, it is a well-established category of jurisdictional error where a decision-maker takes into account an irrelevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40. As Basten JA (with whom Beazley P agreed) explained in Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9] “a matter traditionally described as an ‘irrelevant consideration’ is one which is prohibited … having regard to the subject matter, scope and purpose of the power being exercised”.

7. [58]

   It is accepted by the plaintiff that for the errors asserted in the Magistrate’s decision to be jurisdictional, those errors must be material to his Honour’s decision: LPDT at [7]. The plaintiff bears the onus of satisfying this Court on the balance of probabilities that the materiality threshold has been met: LPDT at [13]. On the question of materiality, in LPDT the plurality said at [14]:

8. [59]

   In O’Brien, Beech-Jones J conveniently set out the applicable principles at [7]-[14]:

Determination

1. [60]

   At the outset of the hearing, the plaintiff’s counsel, Mr Vuu, submitted that the grounds of review raised in the summons were confined precisely to the assertion of jurisdictional error: Tcpt, 3 December 2025, p 4(1-8); Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [19]-[20] (Leeming JA, Gleeson and Payne JJA agreeing); Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [26] (Leeming JA, Basten JA and Simpson AJA agreeing).

2. [61]

   A number of the plaintiff’s submissions in Ground 1 and essentially the entire argument in Ground 2 made complaints about the Magistrate misapprehending the law in relation to the prosecution’s “duty of disclosure”: see, R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 at [17]-[20] (Simpson J, Grove and Shaw JJ agreeing) citing with approval the observations by Hodgson JA in Reardon at [46]-[54]; Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161; (2019) 278 A Crim R 592 at [27]-[30] (Leeming JA, R A Hulme J agreeing). During the hearing, I raised with Mr Vuu that it was apparent from the transcript of the Local Court proceedings that there were no submissions made to the Magistrate on the issue of the prosecution’s duty of disclosure, whether the defendant had complied with any such duty and neither was the existence of that duty put to Constable Joya in cross-examination: Tcpt, 3 December 2025, pp 7(22-31)-8(3-22). Mr Vuu properly conceded that there were no submissions specifically made to the Magistrate in relation to the duty of disclosure but submitted that certain words in particular the words “assisted the prosecution case” or “informed the prosecution case” used by his Honour in the ex tempore judgment (see [29] above) suggested an implicit reference to the duty: Tcpt, 3 December 2025, p 8(29-42).

3. [62]

   I am mindful of the approach to be taken with respect to the examination of an ex tempore judgment given by a Magistrate in a busy Local Court: Acuthan v Coates (1986) 6 NSWLR 472 at 478-479 (Kirby P, Glass and Mahoney JJA agreeing); Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [83] (McColl JA, Spigelman CJ and Handley JA agreeing); O’Brien at [14]. Having read the Magistrate’s reasons as a whole, I cannot accept Mr Vuu’s submission that the substance of what was said by his Honour was intended to be a consideration of the duty of disclosure on the defendant. While the Magistrate did refer to the defendant forming the view that the CCTV footage was of no relevance, the substance of his Honour’s reasoning in that regard was directed towards the assessment of whether the plaintiff had satisfied the Court whether there had been an unreasonable or improper investigation conducted by the defendant for the purposes of s 214 of the CPA, rather than any consideration on whether the defendant had breached its duty of disclosure. That is not to say however that if a submission had been made along those lines to the Magistrate that it could not form part of the assessment but it is clear in this case that nothing in his Honour’s reasons turned on the defendant’s duty of disclosure.

4. [63]

   In these circumstances, the plaintiff’s grounds of review contending jurisdictional error based on the Magistrate having misapprehended the law on the duty of disclosure is a new point not raised in the court below. Consistent with the limited role of this Court provided under s 69 of the Supreme Court Act, it will be seldom that a party will be allowed to argue that an inferior court committed a jurisdictional error or error of law when that point was not raised before it: Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 at [14] (Basten JA), [100] (Sackville AJA); Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39; (2025) 338 IR 301 at [38] (Perram, Rangiah and Shariff JJ); see also, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35; Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) and the authorities there cited. In any event, for the reasons that follow it is not necessary to reach a conclusion on this issue.

5. [64]

   As the Magistrate acknowledged, the plaintiff’s submission that had the greatest strength was the failure by police to obtain the details of the plaintiff’s mother so that a statement could be obtained from her. The police had been made aware by the complainant and VC that they had seen the plaintiff and his mother at the Waverley netball courts but no attempt was made to contact her or to obtain a statement from her. As his Honour correctly observed (see [31] above), that the plaintiff’s mother could not be “prejudged to be in any particular camp”. However, in considering whether the failure to obtain a statement from her entitled the plaintiff to a costs order, his Honour focused (see [31]-[32] above) on the difficulties that the plaintiff’s mother’s evidence may have caused the prosecution case and the common occurrence in Local Court cases for the prosecution to fail to take statements and to call relevant witnesses which “ordinarily” resulted in a “Mahmood direction”. It appears the Magistrate was referring to the direction arising from the decision in Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1. The Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales suggests the following Mahmood direction at [4-375]:

6. [65]

   In my respectful opinion, the Magistrate’s reasons on the failure to contact or obtain a statement from the plaintiff’s mother suffers from the type of jurisdictional error identified in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 (“Cliftleigh Haulage”), De Varda and RB, and further, in the sense discussed in Criag and Kirk by taking into account an irrelevant consideration.

7. [66]

   In the oft-quoted statement in Cliftleigh Haulage, Hodgson JA (with whom Howie J and I agreed) observed at [20]-[21]:

8. [67]

   In Cliftleigh Haulage, Hodgson JA was referring to ss 70(1)(a) and (c) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), which are in identical terms to ss 214(1)(a) and (c) of the CPA.

9. [68]

   In De Varda, police had failed to take a statement from Mr De Varda’s 13 year old son who was a witness to an alleged assault by him on his step-daughter. Mr De Varda’s assault charge was dismissed in the Local Court and the magistrate refused his application for costs. However, Mr De Varda successfully sought judicial review of that decision. In De Varda, by reference to what was said by Hodgson JA in Cliftleigh Haulage at [20]-[21], Davies J observed at [31]-[32]:

10. [69]

    In RB, no witness statements were taken from RB’s wife and son. RB had been prosecuted in the Local Court for a charge of indecent assault on a young girl. The charge was dismissed and RB’s application for costs before the magistrate was unsuccessful. RB successfully sought judicial review of that decision. In RB, Hidden J relevantly said at [53]:

11. [70]

    Hidden J further stated at [56] that:

12. [71]

    The plaintiff’s mother was a witness who the police should have attempted to interview. If the police had done so, it is likely the police would have ascertained that she was not in Australia at the time the complainant and VC said they had seen her. This may have led to the police reconsidering the plaintiff’s statement to Constable Anderson that at the time the offence was alleged to have occurred he was in the Northern Beaches rather than at the Waverley netball courts.

13. [72]

    These were relevant matters which suggested that the plaintiff may not have been guilty. The Magistrate should have approached this issue by asking the question in the terms of s 214(1)(a) of the CPA as to whether the investigation was conducted in an unreasonable or improper manner or in the terms of s 214(1)(c), whether the prosecutor unreasonably failed to investigate a relevant matter of which he was aware which suggested the plaintiff might not be guilty. However, his Honour’s focus was on the difficulties that the plaintiff’s mother’s evidence may have caused the prosecution’s case and on the common occurrence in the Local Court for the prosecution to fail to take statements and to call relevant witnesses ordinarily resulting in a Mahmood direction. The Magistrate’s incorrect focus on these issues caused his Honour to misapprehend the nature of his power under s 214 of the CPA and accordingly, his Honour fell into jurisdictional error.

14. [73]

    Furthermore, the commonality of the prosecution in Local Court cases to fail to take statements and to call relevant witnesses could not possibly be a reason for declining to make a costs order under s 214(1) of the CPA. Poor prosecution practice was an irrelevant consideration which caused his Honour to misapprehend the nature of his power under that section.

15. [74]

    I am satisfied that the threshold of materiality has been met. The decision that the Magistrate made could realistically have been different had the errors not been made: LPDT at [14].

16. [75]

    Having reached these conclusions, it is unnecessary to consider any further contentions by the parties.

Orders

1. [76]

   Accordingly, I make the following orders:

   1. (1)

      Extend the time for the plaintiff to commence these proceedings to 12 July 2025.

   2. (2)

      Quash the decision of Barlow LCM made on 21 March 2025 dismissing the plaintiff’s application for costs under s 214(1) of the Criminal Procedure Act 1986 (NSW).

   3. (3)

      Remit the matter to the Chief Magistrate of the Local Court of New South Wales for referral to a differently constituted court to determine the plaintiff’s application for costs under s 214(1) of the Criminal Procedure Act 1986 (NSW) in accordance with law.

   4. (4)

      The first and second defendants are to pay the plaintiff’s costs.