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 1970Cases 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 525Category: Costs Parties: Craig Ward (Plaintiff)
Detective Sergeant Mathew Zimmer (Defendant)Representation: Counsel:
Solicitors:
K Earl (Plaintiff)
C McGorey, solicitor (Defendant)
AHA Taylor Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)
File Number(s): 2014/215426
Judgment
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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.
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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…
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- AGLC
- Ward v Zimmer (No 2) [2015] NSWSC 1097
- Case
- [2015] NSWSC 1097
- Decision Date
CaseChat Overview and Summary
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.
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