Zahed v Director of Public Prosecutions (NSW) (No 2)

[2023] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation:

Zahed v Director of Public Prosecutions (NSW) (No 2) [2023] NSWSC 470

Date of orders:

04 May 2023

Decision date:

04 May 2023

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

The defendant is to pay the plaintiff’s costs of and incidental to the appeal as agreed or assessed.

Catchwords:

CIVIL LAW – appeal from the Local Court – whether successful plaintiff should have an order for costs – moment of optimism – parties unable to agree – fairness in the circumstances – no substantial question of principle – cost orders made

Legislation Cited:

Crime Commission Act 2012 (NSW), s 45

Director of Public Prosecutions Act 1986 (NSW), s 15A(7)

Cases Cited:

Commonwealth of Australia v Gretton [2008] NSWCA 117

Windsurfing International Inc v Petit (1987) AIPC 90-441

Zahed v Director of Public Prosecutions [2023] NSWSC 368

Category:

Costs

Parties:

Tarek Zahed (Plaintiff)
Director of Public Prosecutions (NSW) (Defendant)

Representation:

Counsel:
P Lange (Plaintiff)
W Liu (Defendant)

Solicitors:
One Group Legal
Director of Public Prosecutions (NSW)

File Number(s):

2023/77378

Publication restriction:

There is a non-publication order in this matter over any information that identifies the names of the deceased’s wife, “known person” or the person attributed to an unsigned statement in the Police Facts Sheet and Brief of Evidence.

Judgment

1. On 14 April 2023 I allowed an appeal by Mr Tarek Zahed, against an order made by the Local Court that the time for filing a charge certificate be extended. My reasons are available on Caselaw NSW: Zahed v Director of Public Prosecutions [2023] NSWSC (“Zahed”). This judgment assumes the reader has some familiarity with the reasons given in the primary judgment. In a moment of optimism, and by Order (6), I invited the parties to “strive to reach agreement as to the appropriate order for costs (if any)”. Order 7 required each party to file written submissions if they could not reach an agreement.

2. Whether what the parties did can be described as “striving”, I cannot say, but each filed written submissions on 28 April 2023. The plaintiff sought an order that the defendant pay his costs. The defendant submitted that no order be made as to costs or that an order be made that each party bears their own costs. I am grateful to counsel on each side for their economical and helpful written submissions. Neither party sought to advance oral submissions or tendered further evidence on the issue of costs.

3. The plaintiff relies on the general rule that “costs should follow the event”. He submits that he was successful on ground 1 and that, while ground 2 was not upheld, I accepted the learned Magistrate’s use of the expression “community expectations” was unfortunate. He submits that in advancing ground 2 he did not extend the length of the hearing and that he has not engaged in any “disentitling conduct” of the kind described by Waddell J in Windsurfing International Inc v Petit (1987) AIPC 90-441 at 37,862. The plaintiff further submits that “each and every legal submission advanced” by the defendant was rejected, specifically:

1. While the defendant conceded legal error in ground one, they submitted that the ground should still be dismissed because the Magistrate “did not err in finding that the Director had followed the proper process”, which was to proceed under s 45 of the Crime Commission Act 2012 (NSW). That submission was not accepted. The Magistrate’s reasoning process commenced with a denial that the Director of Public Prosecutions (“the Director”) had power to request information from the Crime Commission under s 15A(7) of the Director of Public Prosecutions Act 1986 (NSW). This was erroneous and the error permeated the Magistrate’s reasoning process: see Zahed at [40]-[42].

2. The defendant’s submission that the error of construction was not “material” was rejected: see Zahed at [45]-[47].

3. The defendant’s submission that the matter should be remitted for determination by the Magistrate was also rejected. Instead, this Court re-exercised the power vested in the Magistrate.

4. The submission that there should be a further extension of three weeks beyond the next return date (of the s 45 application), was not accepted, and instead the date for filing the certificate was extended by a period of two weeks.

4. The defendant submits that the general rule (that costs follow the event) would not apply where the plaintiff was successful on one issue and not on others or if the Court considered the victory to be Pyrrhic one. The second proposition was implicit in their written submission. The defendant notes the plaintiff did not persuade this Court that an order simply refusing to extend the time for filing the charge certificate should be made. The defendant also referred to the failure to succeed on ground 2 and the fact that the order that was actually made was to similar effect to the order made by the Magistrate. In fact, the extension of time for the filing of the charge certificate was further into the future. The defendant also relies on the concession it made in relation to the legal question raised in ground 1.

5. In Commonwealth of Australia v Gretton [2008] NSWCA 117 Hodgson JA said at [121]:

“… underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs.”

6. Underlying that observation is the fact that the discretion residing in this Court to award costs is broad one.

7. It is true that the defendant’s approach to the issue of statutory construction, in this Court, was reasonable, fair and correct and they conceded the fundamental legal question underlying the complaint. However, the concession made in this Court was not made before the Magistrate. I mean no criticism of the lawyer who appeared for the Director in the Local Court; the point was somewhat novel and, regrettably, the solicitor may be accustomed to applications to extend the time for filing of a charge certificate to be routine. As I hope I made clear in the primary judgment, they ought not to be. However, the fact is that Mr Lange made the same submissions before the Magistrate as he made to this Court, and the absence of a concession must have played a role in the Magistrate’s decision to allow the extension for filing of a charge certificate.

8. Further, while the legal point of statutory construction was conceded, there was no concession as to the outcome of the appeal. Rather, the defendant’s position was that error in the construction of the statute was not material and that the appeal should be dismissed “with costs”.

9. I do not consider the plaintiff’s success to be Pyrrhic. The fact that the extension turned out to be longer than that ordered by the Magistrate was the result of the delay in getting the matter to hearing, despite an order for expedition made by N Adams J. That was not the plaintiff’s fault.

10. Nor do I think the plaintiff’s approach in bringing the appeal was wrong or misguided or that he should have waited to let the process play out in the Local Court. The specific points discussed about statutory construction were important enough. Furthermore, the issue of delay in charge certification is an issue of general importance, as judges of this Court are confronted by such delays on a daily basis while determining bail applications and the issues raised were particularly important in cases such as the plaintiff’s where he remains in custody pending resolution of the allegations.

11. In spite of the spirited, thorough and cogent written submissions provided by counsel for the defendant, I have concluded that fairness in the circumstances supports the proposition that the general rule should prevail. The defendant should pay the plaintiff’s costs.

12. Accordingly, I order that the defendant pay the plaintiff’s reasonable costs of and incidental to the appeal as agreed or assessed.

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Decision last updated: 16 February 2024