Director of Public Prosecutions (NSW) v Hughes (No.2)

[2017] NSWSC 773

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Hughes (No.2) [2017] NSWSC 773
Hearing dates:	Written submissions
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   The defendant is to pay the plaintiff’s costs as agreed or assessed. (2)   Payment of the costs pursuant to order 1 is to be made within 28 days of the parties reaching an agreement as to the amount, or otherwise having notification of an assessment. (3) The defendant is granted a certificate pursuant to s. 6(1)(a) of the Suitors’ Fund Act 1951 (NSW) if so qualified.
Catchwords:	PRACTICE AND PROCEDURE – Appeal – Costs – Where proceedings brought against the defendant in the Local Court were dismissed by Magistrate – Where an appeal was brought against the Magistrate’s determination – Where it was concluded that the Magistrate had erred – Whether costs should follow the event – Relevance of the fact that the error on the part of the Magistrate was not the fault of the defendant or his representatives
Legislation Cited:	Crimes Act 1900 (NSW) Suitors’ Fund Act 1951 (NSW)
Cases Cited:	Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) – Plaintiff Keith Allan Hughes – Defendant
Representation:	Counsel: J Davidson – Plaintiff S Boland – Defendant   Solicitors: C Hyland, Solicitor for Public Prosecutions (NSW) - Plaintiff Bridge St. Lawyers - Defendant
File Number(s):	2016/319956
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Tamworth Local Court Jurisdiction: Criminal Date of Decision: 26 May 2016 Before: Magistrate Prowse

Judgment

INTRODUCTION

1. In this matter I made orders on 9 June 2017 allowing an appeal brought by the Director of Public Prosecutions (NSW) (“the Director”) against a decision of Magistrate Prowse in the Tamworth Local Court on 26 May 2016. I concluded that in dismissing a series of charges brought against the defendant under s. 91H(2) of the Crimes Act 1900 (NSW), the Magistrate had erred in finding that it was necessary, for the purposes of that provision, for the Crown to prove malice: Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492.

2. Upon delivering that judgment, I gave the parties an opportunity to provide written submissions as to costs.

Submissions of the Director

3. The Director submitted that in the circumstances, there was no reason why costs should not follow the event. The Director submitted, quite simply, that he had been successful in his appeal and that in accordance with the general rule, he should have the benefit of an award of costs in his favour.

4. In advancing these submissions, the Director acknowledged that the Magistrate’s error was not one to which the defendant or his representatives had contributed. However, it was submitted that this did not mean that the general rule that costs follow the event should not apply. The Director did not oppose a certificate being granted to the defendant pursuant to s. 6 of the Suitors’ Fund Act 1951 (NSW).

Submissions of the defendant

5. It was submitted on behalf of the defendant that the appropriate order was that each party pay its own costs. In advancing this submission, counsel for the defendant emphasised that the Magistrate’s error was not one to which the applicant had contributed.

6. It was further submitted that the defendant had identified an “evidentiary defect” in written submissions, which resulted in the Director having to file affidavit material in support of the application for an extension of time. The written submissions filed on behalf of the defendant did not precisely articulate how this was relevant to the question of costs.

7. Finally, counsel for the defendant emphasised that an award of costs against the defendant would mean that he would be required to “fund the costs of a publically funded prosecutor in appealing the matter”. It was submitted that this weighed against a costs order being made in the Director’s favour.

CONCLUSION

8. There is no reason why costs ought not follow the event. The simple fact is that the Director was successful in demonstrating that the Magistrate had erred. I acknowledge that such error was not one to which the defendant or his representatives contributed in any way, much less caused. Equally however, when the Director brought proceedings in this Court, the defendant chose to oppose both the application for an extension of time, as well as the substantive relief which was sought. As to the second matter counsel for the defendant expressly conceded that malice was not an element of the offences contained in s. 91H(2). His submission was that properly construed, the Magistrate’s reasons reflected no such finding. For the reasons set out in my previous judgment, that submission was wholly untenable.

9. The fact that the Director filed material in support of an application for an extension of time after the defendant’s written submissions were filed is of no moment. What is more significant, is that the defendant unsuccessfully opposed the application for an extension of time.

10. Whilst an award of costs will necessarily impose a financial burden on the defendant, that consequence could be said to apply to the majority of, if not all, unsuccessful parties in cases of this nature. It is not a factor in which, either by itself or in combination with other factors, warrants displacement of the general rule. However in the circumstances, it would seem to me that the defendant should have the benefit of a certificate under the Suitors’ Fund Act 1951 (NSW) if he is otherwise qualified.

ORDERS

11. For the foregoing reasons I make the following orders:

1. The defendant is to pay the plaintiff’s costs as agreed or assessed.

2. Payment of the costs pursuant to order 1 is to be made within 28 days of the parties reaching an agreement as to the amount, or otherwise having notification of an assessment.

3. The defendant is granted a certificate pursuant to s. 6(1)(a) of the Suitors’ Fund Act 1951 (NSW) if so qualified.

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Amendments

15 June 2017 - Date of orders to read "15 June 2017"

Decision date to read "15 June 2017"

Decision last updated: 15 June 2017