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

McColm (Department of Regional NSW) v Tucker (No 2) was a case heard in the Local Court of New South Wales. The dispute involved an offender who was ordered to pay the prosecutor's costs of the proceedings, with an exception for any costs related to the retention of the prosecutor's expert. Conversely, the prosecutor was ordered to pay the offender's costs thrown away relating to the retention of its expert. The primary legal issues the court was required to decide were whether the costs of retaining an expert should be included in the costs order and if the costs thrown away by one party should be compensated by the other.

The court examined the principles of costs assessment in criminal proceedings, considering the fairness and proportionality of the costs incurred. It noted that the general rule is that the losing party pays the winner's costs, but this can be varied if it is deemed unjust or inappropriate. The court emphasised the importance of ensuring that the costs do not unduly burden the offender, while also considering the need for the prosecutor to be reimbursed for reasonable expenses incurred in pursuing the case. Ultimately, the court found that the costs associated with retaining an expert should not be borne by the offender, as these were considered to be extraordinary expenses. However, the costs thrown away by the offender in relation to the retention of its expert were deemed to be reasonable and necessary, and thus should be compensated by the prosecutor.

In its reasoning, the court balanced the need for the offender to be held accountable for the costs of the proceedings with the need to prevent excessive financial burden. It concluded that the offender should pay the majority of the prosecutor's costs, but not those relating to the retention of an expert. Conversely, the prosecutor should compensate the offender for the costs thrown away in relation to its expert. The court's decision was grounded in the principles of fairness and proportionality, ensuring that the costs order did not unfairly disadvantage either party.

The final orders of the court were that the offender is to pay the prosecutor's costs of the proceedings, except for any costs relating to the retention of its expert. Additionally, the prosecutor is to pay the offender's costs thrown away relating to the retention of its expert. This outcome reflects the court's careful consideration of the principles of costs assessment and the need to ensure a just and equitable result.