Hariz v NSW Director of Public Prosecutions [2021] NSWDC 130

District Court New South Wales

Medium Neutral Citation: Hariz v NSW Director of Public Prosecutions [2021] NSWDC 130 Hearing dates: 5 March 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Civil Before: J Smith SC, DCJ Decision: (1) The respondent pay the applicant's costs of the proceedings in the Local Court in the amount of $9,000. (2) The respondent pay the applicant's costs of the proceedings in the District Court in the amount of $12,000. (3) The applicant is to pay the respondent's costs incurred in these proceedings after 28 August 2020 as assessed or agreed. Catchwords: COSTS – Setting aside of costs order – rehearing of costs application – failure to file evidence in accordance with orders of the Court Legislation Cited: Costs in Criminal Cases Act 1967 Crimes (Appeal & Review) Act 2001 Category: Costs Parties: Raed Hariz (Applicant) NSW Director of Public Prosecutions (Respondent) Representation: Solicitors: Office of Director of Public Prosecutions (Respondent) File Number(s): 2018/361833 Publication restriction: Nil

Judgment 1. On 9 March 2020 I allowed an appeal against a conviction entered against Mr Hariz in the Local Court on 25 September 2019. Mr Hariz then applied for both a costs certificate under the Costs in Criminal Cases Act 1967 and costs under the Crimes (Appeal & Review) Act 2001. 2. That application was heard by me on 3 July 2020. Although Mr Hariz was given the opportunity after that hearing to adduce evidence of his actual costs, he failed to avail himself of that opportunity. The matter was then listed for judgment on 28 August 2020. Mr Chrysostomou, of Counsel, appeared for Mr Hariz on that day. Before delivering my judgment I brought to the parties' attention that no evidence had been adduced as to Mr Hariz's actual costs and that my judgment was to be made on that basis. Mr Chrysostomou did not make any application despite this. After dealing with another matter in my list on that day, I delivered judgment and ordered the respondent to pay Mr Hariz's costs in the Local Court in the amount of $9,000 and his costs of the proceedings in the District Court in the amount of $12,000. 3. Later that morning, Mr Chrysostomou applied for those orders to be set aside to allow Mr Hariz to adduce evidence of his actual costs. I refused that application but indicated that I would consider any application made by way of notice of motion. 4. On 5 November 2020 Mr Hariz filed a notice of motion seeking orders setting aside the orders made on 28 August 2020. The basis for the motion was that he was denied procedural fairness. The respondent consented to the motion but did not concede any denial of procedural fairness. I allowed the motion and made further orders for evidence. Once again, no evidence was filed in accordance with my orders. When the matter came on for hearing on 5 March 2021 Mr Hariz appeared for himself. He sought an adjournment to obtain the opinion of a costs assessor. Given the history of the matter and the lateness of the application I refused the application. Mr Hariz then tendered a bundle of documents he said were for his legal costs relating to the proceedings in both the Local Court and District Court. On that basis, and absent any objection, the documents were admitted into evidence. The Director of Public Prosecutions was given the opportunity to file written submissions addressing those invoices.