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

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

The defendant was the successful party in the appeal proceedings and had not engaged in disentitling conduct in those proceedings. The appeal proceedings in the Supreme Court were distinct from the Local Court proceedings, so any alleged conduct of the prosecution below did not justify refusing the defendant his...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 August 2015
Procedural Posture
Costs Application in Appeal Proceedings Under the Crimes (appeal and Review) Act 2001 / Costs Following Dismissal of the Plaintiff's Application for Leave to Appeal; Determined on Written Submissions
Outcome
The defendant's application for costs was allowed; the plaintiff was ordered to pay the defendant's costs of the appeal proceedings.
Legal Topics
['costs Following the Event' 'lump Sum Costs Order' 'appeal From Local Court' 'application to Re Open Prosecution Case' 'dna Evidence' 'whether Appeal Proceedings Were Criminal or Civil']
['costs' 'criminal Procedure' 'appeals'] ['costs Following the Event' 'lump Sum Costs Order' 'appeal From Local Court' 'application to Re Open Prosecution Case' 'dna Evidence' 'whether Appeal Proceedings Were Criminal or Civil']

Source-derived case record

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Procedural Posture

Costs Application in Appeal Proceedings Under the Crimes (appeal and Review) Act 2001 / Costs Following Dismissal of the Plaintiff's Application for Leave to Appeal; Determined on Written Submissions

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs after the dismissal of the application for leave to appeal." 'Whether the plaintiff established a basis to depart from the general rule that costs follow the event.' "Whether the defendant's conduct in the Local Court proceedings could disentitle him to costs of the appeal proceedings in the Supreme Court." 'Whether a lump sum costs order of $14,000 should be made.']

Ratio Decidendi

The defendant was the successful party in the appeal proceedings and had not engaged in disentitling conduct in those proceedings. The appeal proceedings in the Supreme Court were distinct from the Local Court proceedings, so any alleged conduct of the prosecution below did not justify refusing the defendant his appeal costs; any costs consequences of conduct below were for the Local Court. The case was not a test case of the kind considered in CSR Ltd v Eddy, and the amount of $14,000 sought as a lump sum was reasonable and supported by evidence. Accordingly, there was no basis to depart from the ordinary costs principle.

Court Disposition

The defendant's application for costs was allowed; the plaintiff was ordered to pay the defendant's costs of the appeal proceedings.

Orders

  • ["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."]