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

1. 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.

2. 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 re-open its case.

3. Leave was granted to the parties to make submissions on the question of the costs of the proceedings. Both parties have made written submissions. This judgment deals with the application of the defendant for a costs order in his favour.

Submissions

(a) Plaintiff’s Submissions

4. The plaintiff filed Written Submissions on Costs on 15 May 2015 and Submissions in Reply on 22 May 2015. The defendant filed Written Submission on Costs on 20 May 2015 as well as an Affidavit of Valentino Musico sworn 4 June 2015.

5. The plaintiff submitted that this was a case in which the Court should depart from the general rule that costs follow the event. It was submitted on his behalf that an order should be made against the defendant, despite the defendant having been the successful party, by reason of the circumstances of the case. Alternatively, the plaintiff submitted that there should be no order for costs made against him.

6. It was contended on behalf of the plaintiff that an order other than the usual order that costs follow the event, is more likely to be made in circumstances where the successful party’s conduct lengthened the proceedings unnecessarily or otherwise increased the costs of the litigation. It was argued that there was a “delay” in the Court below caused by the prosecution’s decision to proceed to a hearing in the Local Court with the knowledge that there was a possibility of DNA evidence becoming available: Plaintiff’s Written Submissions on Costs at [22]. The essence of the submission as to “delay” is that the application to re-open the proceedings to adduce DNA evidence had the effect of lengthening the proceedings, with the prospect of additional evidence being called causing additional costs to the plaintiff: Plaintiff’s Written Submissions on Costs at [23].

7. The submission in this respect was set out in the Plaintiff’s Written Submissions on Costs as follows:

30.   It is respectfully submitted that if the defendant had acted more promptly to obtain DNA evidence, that is, during the investigative period of some 4 months between the seizure of the money, the subsequent receipt of the plaintiff’s email justifying his possession of the money and the issue of a CAN for the offence in September of that year, the delay may well have been avoided.

31.   The interrupted hearing, subsequent application to re-open and additional hearing and associated costs would also have been avoided if the prosecution had sought a delay until the results were known and put the defence on notice so that the matters in issue could have been fully dealt with in the one hearing.

8. The plaintiff also submitted that it was “reasonable and proper for the plaintiff to seek to test the decision of the Magistrate in the hearing before this Court”: Plaintiff’s Written Submissions on Costs at [25]. It was submitted that the principal judgment in this Court resolved some “prior uncertainty” in the area and that the decision is thus of assistance to the defendant in terms of the future guidance the judgment will provide in these circumstances, as well as to a resolution of the plaintiff’s rights. It was further submitted that though this was not a “test case”, the importance of the decision accords with the principles set out in CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1.

9. In the plaintiff’s Submissions in Reply it was submitted that the “real issues in this matter arose through the deliberate actions of the defendant” in concealing the possible existence of DNA evidence from the plaintiff and from the Court and failing to seek an adjournment which, it was observed, is a common application in criminal proceedings in the Local Court: Submissions in Reply at [5]–[7].

10. In the submissions for the defendant (see below) it was contended that, for the purposes of making a costs order, the proceedings in this Court were distinct from the prosecution below. In response, the plaintiff submitted in their Submissions in Reply that:

“11.   The plaintiff does not concede that this matter must be looked at in isolation to the matter below. They are intrinsically linked and one cannot identify the real issues without considering the actions of the parties below and the evidence to date.”

(b) Defendant’s Submissions

11. The defendant submitted that a lump sum order for costs in his favour should be made in the amount of $14,000. This figure represented 70% of what was said to be the total costs and disbursements to date in relation to the proceedings ($20,162). Evidence supporting that calculation was provided in the Affidavit of Valentino Musico. It was submitted that the plaintiff should be ordered to pay the amount sought within 28 days, noting that s 72(b) of the CAR Act requires an appeal court to state a time within which costs ordered must be paid.

12. It was argued that the proceedings in this Court should be viewed as separate or distinct from the Local Court proceedings. The submissions made by the plaintiff as to delay and the defendant’s failure to request an adjournment in the Local Court were, as such, not relevant to the costs order to be made in relation to the appeal in the defendant’s submission, though they may be relevant to the exercise of the power to award costs in the Local Court: Defendant’s Written Submissions on Costs at [9]-[13].

13. It was submitted that there had been no delay or conduct by the defendant in the appeal capable of disentitling him to costs after being successful in relation to the “event”, namely the appeal brought by the plaintiff, as distinct from concessions made by the defendant in order to facilitate the efficient resolution of the appeal: Defendant’s Written Submissions on Costs at [18].

14. The defendant further submitted that these proceedings were far different from those which arose in CSR Ltd v Eddy, supra, relied on by the plaintiff.

15. It was noted by the defendant in his Written Submissions that if a costs order is to be made, it must be a lump sum costs order by reason of the provision of s 353(3) Legal Profession Act 2004 (the relevant legislation in force at the time of submissions) which provides that parties to “criminal proceedings” cannot apply for an assessment of costs in relation to costs arising out of “those proceedings”: Defendant’s Written Submissions on Costs at [23]–[24].

Determination

16. A power to make a costs order in proceedings of this type arises under s 54(3) of the CAR Act. Section 54 provides:

54   Determination of applications for leave to appeal

(1)   The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.

(2)   Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application.

(3)   If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.

(4)   If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. (Emphasis added).

17. Alternatively, costs orders can be made under s 55(3)(a) CAR Act which provides the Court with a general power to make “such other order as it thinks just” in determining an appeal, or pursuant to s 23 Supreme Court Act 1970.

18. The defendant submitted that the provisions as to costs contained in s 98 of the Civil Procedure Act 2005 did not apply to these proceedings because they were not “civil proceedings”.

19. The plaintiff commenced these proceedings as appeal proceedings brought under the CAR Act. They were heard and determined on that basis, as he had sought. The CAR Act contains particular provisions on costs of proceedings brought under that Act.

20. The plaintiff, in having invoked the jurisdiction under the CAR Act should not, as a matter of discretion now, in my opinion, be permitted to have his costs assessed under the Civil Procedure Act.

21. That said, in practical terms, nothing, in any event, turns in this case on the difference between cost provisions in “civil proceedings” or “criminal proceedings” as the quantum of costs to be ordered would be the same whether the order was made under the Civil Procedure Act or the CAR Act. Section 72 of the CAR Act makes more specific provision for the ordering of costs in an amount and within a time specified in the order.

22. Both parties accept that the general principle is that a successful party to proceedings should be awarded costs of the proceedings: Latoudis v Casey (1990) 170 CLR 534 at 566-567. In Latoudis v Casey McHugh J observed at 567:

“The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings.”

23. In Latoudis it was stated by Mason CJ at 543:

“If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of legal proceedings: Cilli v Abbott (1981) 53 FLR at 111. Most of the arguments which seek to counter an award of costs against an informant fail to recognise this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.”

24. The plaintiff sought to establish that this case was exceptional and that a departure from the general principle was warranted. As noted above, he relied upon the conduct of the defendant in the proceedings below as well as what he submitted were important issues to be determined for the benefit of both parties in this appeal.

25. I do not accept the plaintiff’s submission that the appeal and the Local Court proceedings are so intrinsically linked as to be considered as together constituting one set of proceedings and that events in the Local Court should inform the costs order made in relation to the appeal to this Court. My consideration of the appropriate costs order to be made is, as such, confined to the conduct of the appeal proceedings before me. Any question of costs below should be dealt with by the Local Court. That court is best placed to consider any material implications of the defendant’s conduct in failing to seek an adjournment in the exercise of the costs discretion vested in that Court. Consequently, I do not find that the conduct of the defendant below can justify an adverse costs order being made against him in circumstances where the appeal was instituted by the plaintiff and the defendant has not been shown to have conducted himself improperly in relation to the appeal proceedings.

26. As to the relevance of CSR Ltd v Eddy, supra, Gleeson CJ, Gummow and Heydon JJ there observed at [81]:

“The challenge to Sullivan v Gordon before the primary judge (which was inevitably rejected), in the Court of Appeal (which was not surprisingly repelled) and in this Court (which has succeeded) made this case a test case, designed to resolve a conflict amongst the intermediate appellate courts of the States and the Australian Capital Territory. It is common in this court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate…or governmental…but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side’s costs in any event and on appellants not seeking to disturb costs orders in the courts below which were favourable to the other side…”

27. Though it could be said that the question of whether the decision of the Magistrate in the Local Court to allow the prosecution to re-open their case to adduce DNA evidence amounted to an appellable interlocutory order for the purposes of s 53(3)(b) of the CAR Act was one for which there was no clear authority, that fact of itself does not make this a “test case” in the sense considered in CSR Ltd v Eddy. While it is true that resolution of the issue may be seen as beneficial to both the plaintiff and the defendant as an informant in criminal proceedings, it is not possible to say that the circumstances of this case are likely to recur frequently. As the plaintiff acknowledged, the common course is for a prosecuting authority to seek an adjournment pending the availability of results from DNA testing. Additionally, it is noted that the issue of whether the decision was an “interlocutory order” was not the sole basis for the appeal but rather was an ancillary aspect arising as a result of the appeal.

28. The appeal was brought by the plaintiff to determine the issue of whether the Magistrate had properly exercised his discretion to allow the prosecution to re‑open its case. The applicable principles in relation to that issue were well established, being, primarily, those set out in the High Court’s judgment in R v Chin (1985) 157 CLR 671 (see the principal judgment at [117]).

29. In these circumstances there is no basis to depart from the general principle as to costs. The defendant, as the successful party, is, in my opinion, entitled to an order for costs in his favour in these proceedings.

Amount of Costs Order

30. As noted above, the defendant seeks costs in the lump sum amount of $14,000 representing 70% of what was asserted to be the total costs spent on the appeal.

31. In circumstances where the plaintiff has made no submission as to the figure calculated by the defendant. The amount sought is reasonable and in any event has support in the evidence to which I have referred. I consider it is appropriate to make the costs order sought by the defendant.

Order

32. I make the following order:

The plaintiff is to pay the defendant’s costs of the appeal proceedings in this Court in the sum of $14,000 within 28 days.

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Decision last updated: 07 August 2015