Woollahara Municipal Council v Kincorp (NSW) Pty Ltd and Terence John Daly (No.2) [2009] NSWLEC 44

Woollahara Municipal Council v Kincorp (NSW) Pty Ltd and Terence John Daly (No.2) [2009] NSWLEC 44

While the prosecution as initially particularised was doomed to failure and had no reasonable prospect of success, the circumstances surrounding the amendment of particulars represented exceptional circumstances within the meaning of s257D(1)(d), making it just and reasonable that the prosecutor pay all the defendants' professional costs up to and including the date of amendment. However, for the remainder of the case, there was no statutory basis to award costs, and each party should bear its own costs on the motion for costs.

Parties
Prosecutor: Woollahra Municipal Council; Defendant: Kincorp (NSW) Pty Ltd; Defendant: Terence John Daly
Jurisdiction
Australia
Judgment Date
09 April 2009
Procedural Posture
Criminal Prosecution (costs Application) / Post Dismissal, Determination of Costs Application
Outcome
Notice of motion for costs upheld in part.
Legal Topics
Costs Orders in Criminal Proceedings, Reasonableness of Prosecution, Exceptional Circumstances for Costs, Amendment of Particulars, Role of Local Council in Prosecution, Criminal Procedure Act 1986 S257 D
Criminal Law Environmental Law Costs Costs Orders in Criminal Proceedings Reasonableness of Prosecution Exceptional Circumstances for Costs Amendment of Particulars Role of Local Council in Prosecution +1 more

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Parties

Woollahra Municipal Council

Prosecutor

Kincorp (NSW) Pty Ltd

Defendant

Terence John Daly

Defendant

Procedural Posture

Criminal Prosecution (costs Application) / Post Dismissal, Determination of Costs Application

Legal Issues

  1. 1 Whether the defendants are entitled to costs under s257D of the Criminal Procedure Act 1986 following dismissal of prosecution; Whether the conduct of the prosecutor amounted to unreasonable investigation, unreasonable initiation, or exceptional circumstances justifying costs; Whether amendment of particulars or settlement negotiations warranted a costs order beyond costs 'thrown away'.

Ratio Decidendi

While the prosecution as initially particularised was doomed to failure and had no reasonable prospect of success, the circumstances surrounding the amendment of particulars represented exceptional circumstances within the meaning of s257D(1)(d), making it just and reasonable that the prosecutor pay all the defendants' professional costs up to and including the date of amendment. However, for the remainder of the case, there was no statutory basis to award costs, and each party should bear its own costs on the motion for costs.

Court Disposition

Notice of motion for costs upheld in part.

Orders

  • The defendants' Notice of Motion for costs is upheld in part.
  • The costs order made by Pain J on 18 October 2007 is vacated.