Wise v Schneider (No 2) [2015] NSWSC 799

Wise v Schneider (No 2) [2015] NSWSC 799

Inspector Wise did not identify the legal consequence of the asserted unfairness until the amendment at the hearing, and until then Mr Schneider was entitled to respond only to the pleaded legal errors and would have succeeded on the substantive part of the appeal. He was therefore entitled to pre-amendment costs, reduced to 75% because the plaintiff's separate costs-order complaint was not determined and the defendant did not press his notice of contention. After the hearing on 26 May 2015, Mr Schneider had sufficient opportunity to consider the amendment and concede the appeal but chose to fight on, so he should pay the plaintiff's costs from 27 May 2015 to 12 June 2015. No Suitors'...

Jurisdiction
Australia
Judgment Date
23 June 2015
Procedural Posture
Appeal Under S 56(1) of the Crimes (appeal and Review) Act 2001 (nsw) Concerning Local Court Dismissal of Liquor Act 2007 (nsw) Charges and a Costs Order / Costs Determination Following Judgment Allowing the Appeal and Remitting the Proceedings to the Local Court
Outcome
Costs orders made broadly in favour of the defendant before the amendment and in favour of the plaintiff after the amendment until judgment; no order for costs of the later costs argument.
Legal Topics
['costs After Appeal' 'amendment of Grounds at Hearing' 'procedural Fairness' 'adequacy of Reasons' "suitors' Fund Certificate"]
['costs' 'criminal Procedure' 'administrative Law'] ['costs After Appeal' 'amendment of Grounds at Hearing' 'procedural Fairness' 'adequacy of Reasons' "suitors' Fund Certificate"]

Case Brief

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Procedural Posture

Appeal Under S 56(1) of the Crimes (appeal and Review) Act 2001 (nsw) Concerning Local Court Dismissal of Liquor Act 2007 (nsw) Charges and a Costs Order / Costs Determination Following Judgment Allowing the Appeal and Remitting the Proceedings to the Local Court

Legal Issues

  1. 1 ['What costs orders should be made where the plaintiff succeeded only on a procedural fairness ground raised by amendment at the hearing.' "Whether the defendant should receive costs up to the amendment because he would have succeeded on the plaintiff's original substantive grounds." "Whether any reduction should be made for the plaintiff's unresolved challenge to the Local Court costs order and the defendant's unpressed notice of contention." "Whether the defendant should obtain a certificate under s 6 of the Suitors' Fund Act 1951."]

Ratio Decidendi

Inspector Wise did not identify the legal consequence of the asserted unfairness until the amendment at the hearing, and until then Mr Schneider was entitled to respond only to the pleaded legal errors and would have succeeded on the substantive part of the appeal. He was therefore entitled to pre-amendment costs, reduced to 75% because the plaintiff's separate costs-order complaint was not determined and the defendant did not press his notice of contention. After the hearing on 26 May 2015, Mr Schneider had sufficient opportunity to consider the amendment and concede the appeal but chose to fight on, so he should pay the plaintiff's costs from 27 May 2015 to 12 June 2015. No Suitors'...

Court Disposition

Costs orders made broadly in favour of the defendant before the amendment and in favour of the plaintiff after the amendment until judgment; no order for costs of the later costs argument.

Orders

  • ["The plaintiff pay 75% of the defendant's costs of the proceedings up to and including 26 May 2015." "The defendant pay the plaintiff's costs of the proceedings from 27 May 2015 up to and including 12 June 2015." 'There be no order as to costs in respect of the period after 12 June 2015.']