Ward v Zimmer (No 2) - [2015] NSWSC 1097

Supreme Court

New South Wales

Medium Neutral Citation: Ward v Zimmer (No 2) [2015] NSWSC 1097
Hearing dates: On Written Submissions
Decision date: 07 August 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
The plaintiff to pay the defendant’s costs of the appeal proceedings in this Court in the sum of $14,000 within 28 days.

Catchwords: COSTS – Appeal from decision of magistrate to allow the prosecution to re-open their case after decision reserved – Application to re-open arose from DNA evidence becoming available which had not been available to the prosecutor previously – Whether the proceedings on appeal were ‘criminal’ or ‘civil’ – Whether departure from general rule that costs follow the event warranted – Contention by the plaintiff that the conduct of the prosecutor in the Local Court proceedings was so linked to the appeal proceedings that he should be disentitled to costs – Held that the appeal proceedings in this Court were distinct from the proceedings below – Defendant had not engaged in any disentitling conduct during the appeal proceedings – Conduct of parties below could be taken into account by the Local Court in its own exercise of discretion in relation to costs – Held that the defendant was entitled to the costs order he sought – Lump sum costs order made
Legislation Cited: Civil Procedure Act 2005
Crimes (Appeal and Review) Act 2001
Legal Profession Act 2004
Supreme Court Act 1970
Cases Cited: CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Latoudis v Casey (1990) 170 CLR 534
R v Chin (1985) 157 CLR 671
Ward v Zimmer [2015] NSWSC 525
Category: Costs
Parties: Craig Ward (Plaintiff)
Detective Sergeant Mathew Zimmer (Defendant)
Representation:
Counsel:
K Earl (Plaintiff)
C McGorey, solicitor (Defendant)
Solicitors:
AHA Taylor Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2014/215426

Judgment

The plaintiff, Craig Ward, commenced these proceedings by way of Summons filed on 22 July 2014. He is the defendant in criminal proceedings heard before Magistrate Walker in the Coffs Harbour Local Court. Mr Ward sought leave to appeal from a decision to allow the prosecution to adduce further evidence after both parties had closed their cases and judgment had been reserved. The defendant in these proceedings, Detective Sergeant Zimmer, was the officer-in-charge of investigations in relation to the offence for which Mr Ward was on trial.
On 7 May 2015 I delivered judgment in the proceedings (Ward v Zimmer [2015] NSWSC 525) dismissing the application for leave to appeal made by the plaintiff on the basis that the decision made by Magistrate Walker, the subject of the appeal, was not an “interlocutory order” for the purposes of s 53(3)(b) Crimes (Appeal and Review) Act 2001 (“CAR Act”). As such, there was no jurisdiction for the Supreme Court to hear the appeal. In my reasons I concluded that even if this Court had jurisdiction in the proceedings no error had been established in relation to the Magistrate’s decision to allow the prosecution to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ward v Zimmer (No 2)

Details

AGLC: Ward v Zimmer (No 2) [2015] NSWSC 1097
Case: [2015] NSWSC 1097
Decision Date: 07 August 2015

CaseChat Overview and Summary

The case of Ward v Zimmer (No 2) involved an appeal by the plaintiff, Ward, against a decision of a magistrate to allow the prosecution to reopen their case after the decision had been reserved. The reopening arose from new DNA evidence that had not been available to the prosecutor previously. The appeal was primarily concerned with the question of whether the proceedings in the Court of Appeal were 'criminal' or 'civil' in nature, which would determine whether the general rule that costs follow the event was applicable. Additionally, the plaintiff argued that the conduct of the prosecutor during the Local Court proceedings was so linked to the appeal proceedings that he should be disentitled to costs.

The court examined the nature of the appeal proceedings, distinguishing them from the proceedings below. It found that the appeal proceedings were distinct and that the defendant had not engaged in any conduct during the appeal that would warrant a denial of costs. The court held that while the conduct of the parties in the Local Court could be considered, the decision on costs was ultimately the discretion of the Local Court. The court also dismissed the plaintiff's argument that the prosecutor's conduct in the Local Court should affect the costs decision in the appeal.

In conclusion, the court found that the defendant was entitled to the costs order he sought. The Court of Appeal made a lump sum costs order in favour of the defendant, reflecting its determination that the general rule of costs following the event applied in this instance. The court emphasised that the conduct of the parties during the appeal proceedings was not relevant to the decision on costs, which remained within the discretion of the Local Court.

Orders