Brighton v Will (No 2) [2020] NSWSC 925

Supreme Court New South Wales

Medium Neutral Citation: Brighton v Will (No 2) [2020] NSWSC 925 Hearing dates: Written submissions Date of orders: 21 July 2020 Decision date: 21 July 2020 Jurisdiction: Common Law Before: Rothman J Decision: (1) The respondent shall pay the appellant's costs of and incidental to these proceedings within 28 days of this judgment;

(2) No order for costs in the Local Court proceedings below;

(3) To the extent otherwise eligible, the Court grants an Indemnity Certificate to the respondent pursuant to s 6 of the Suitors Fund Act 1951 (NSW);

(4) Further, the Court recommends, either pursuant to the terms of s 6(2) of the Suitors Fund Act or otherwise under executive power, that the Director General and/or the Attorney General reimburse the respondent for all of the costs incurred as a result of the prosecution and the appeal, including the costs that are required to be paid pursuant to the foregoing orders. Catchwords: COSTS – Criminal Appeal from summary proceedings – RSPCA prosecution under Crimes Act – whether prosecution in "private capacity" – operation of s 70(3) of the Crimes (Appeal and Review) Act 2001 (NSW) on meaning of "private capacity" – applicability of Latoudis v Casey – exercise of discretion to award costs below – Suitors Fund – recommendation for payment under s 6(2) by Director General or Attorney General Legislation Cited: Civil Procedure Act 2005 (NSW), ss 4(1), 98 Crimes Act 1900 (NSW), s 530 Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 52, 53, 55, 70, 72 Criminal Procedure Act 1986 (NSW), ss 121, 171, 212, 213, 214 Prevention of Cruelty to Animals Act 1979 (NSW) Suitors Fund Act 1951 (NSW), s 6 Veterinary Practice Act 2003 (NSW) Cases Cited: Brighton v Will [2020] NSWSC 435 Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Saadat-Talab v Australian Federal Police (No 2) [2008] NSWSC 38 Category: Costs Parties: Daniel Brighton (Plaintiff) Natalie Will (RSPCA Inspector) (Defendant) Representation: Counsel: S Odgers SC & M Sahade (Plaintiff) L Hutchinson (Defendant)