McColm (Department of Regional NSW) v Tucker (No 2)

[2025] NSWDC 360

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McColm (Department of Regional NSW) v Tucker (No 3) [2025] NSWDC 360

Hearing dates:

30 July 2025, 7 August 2025

Date of orders:

12 September 2025

Decision date:

12 September 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   The offender is to pay the prosecutor’s costs of the proceedings, except for any costs relating to the retention of its expert.

(2)   The prosecutor is to pay the offender’s costs thrown away relating to the retention of its expert.

Catchwords:

COSTS — Costs assessment — Costs assessors

Category:

Costs

Parties:

Andrew McColm (Department of Regional NSW) (Prosecutor)
Robert John Tucker (Defendant)

Representation:

Counsel:
M Cahill (Prosecutor)
P Barry (Defendant)

Solicitors:
Lander & Rogers (Prosecutor)
DWF (Australia) (Defendant)

File Number(s):

2023/157572

Publication restriction:

None

Judgment

1. In my remarks on sentence I deferred making final orders as to costs to give the prosecutor an opportunity to present evidence and to make further submissions as to costs of the prosecution.

2. The prosecutor relies on an affidavit of Adam Robert Battagello affirmed on 22 August 2025 and further written submissions prepared by counsel.

3. At the sentence hearing, the offender relied on an affidavit of Matthew Thomas Giles affirmed on 24 July 2025.

4. As I stated in the sentence judgment, it was common ground between the parties that the prosecutor was successful and should have a costs order in his favour, but that should not include any costs of the abandoned expert report and that the prosecutor should pay costs thrown away by the offender in retaining a responsive expert report.

5. The issue raised by me was whether or not there should be some percentage reduction of the prosecutor’s costs because of the overlap between this prosecution and the prosecution of RQA arising from the same incident.

6. Having undertaken a review of the evidence of both solicitors, I am satisfied that the prosecutor has made reasonable efforts to maintain a separation of the costs between the prosecutions and I am not satisfied that there is sufficient reason to apply a percentage reduction to the prosecutor’s costs.

7. The costs claimed by the prosecutor seem to be in the realm of what I would expect them to be, but by that I do not intend to express a view that that figure is reasonable or appropriate. In my view, the fairest outcome is to allow the costs to be assessed by a costs assessor or agreed through further negotiations.

Orders

8. The orders I make are as follows:

1. The offender is to pay the prosecutor’s costs of the proceedings, except for any costs relating to the retention of its expert.

2. The prosecutor is to pay the offender’s costs thrown away relating to the retention of its expert.

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Amendments

16 September 2025 - Case Title amended to read (No 3).

Decision last updated: 16 September 2025