Simon Daniel Hopkins v Magistrate Wayne Evans & Director of Public Prosecutions [2012] NSWSC 186

Simon Daniel Hopkins v Magistrate Wayne Evans & Director of Public Prosecutions [2012] NSWSC 186

Because costs are ancillary relief, the Court had power to revisit the absence of a costs order. Counsel's misapprehension about the likely Suitors Fund outcome and failure to ask that costs be reserved should not be visited on the plaintiff; if reservation had been sought it would have been granted, and costs would almost certainly have been awarded. The interests of justice therefore permitted the matter to be revisited, but the plaintiff should not recover more than the $10,000 maximum that would have applied under the Suitors Fund application counsel chose to make, plus costs of the present hearing.

Jurisdiction
Australia
Judgment Date
22 February 2012
Procedural Posture
Application to Vary Costs Orders in Proceedings Seeking Prohibition Against a Local Court Magistrate / Supreme Court of New South Wales, Common Law Division, First Instance Post Judgment Application
Outcome
Application granted; costs ordered against the Director of Public Prosecutions.
Legal Topics
['variation of Orders' 're Opening Costs Question' 'suitors Fund Application' 'apprehended Bias' 'prohibition']
['costs' 'civil Procedure' 'administrative Law'] ['variation of Orders' 're Opening Costs Question' 'suitors Fund Application' 'apprehended Bias' 'prohibition']

Case Brief

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Procedural Posture

Application to Vary Costs Orders in Proceedings Seeking Prohibition Against a Local Court Magistrate / Supreme Court of New South Wales, Common Law Division, First Instance Post Judgment Application

Legal Issues

  1. 1 ['Whether the Court had power under Part 36 Rule 16 of the Uniform Civil Procedure Rules 2005 to revisit the question of costs.' 'Whether the interests of justice required or permitted costs to be revisited where counsel had overlooked or misunderstood the need to seek a costs order or reservation after a Suitors Fund application was rejected.' 'What amount of costs should be ordered.']

Ratio Decidendi

Because costs are ancillary relief, the Court had power to revisit the absence of a costs order. Counsel's misapprehension about the likely Suitors Fund outcome and failure to ask that costs be reserved should not be visited on the plaintiff; if reservation had been sought it would have been granted, and costs would almost certainly have been awarded. The interests of justice therefore permitted the matter to be revisited, but the plaintiff should not recover more than the $10,000 maximum that would have applied under the Suitors Fund application counsel chose to make, plus costs of the present hearing.

Court Disposition

Application granted; costs ordered against the Director of Public Prosecutions.

Orders

  • ['The Director pay to the plaintiff the sum of $10,000 as a gross sum of costs relating to the earlier proceedings before the Court.' "The Director pay to the plaintiff the sum of $500 in respect of today's proceedings."]