CAMPBELL v RICHARDSON & ANOR [2008] NSWSC 348

Reported Decision : 183 A Crim R 519

New South Wales Supreme Court

CITATION : CAMPBELL v RICHARDSON & ANOR [2008] NSWSC 348

HEARING DATE(S) : 26 November 2007

JUDGMENT DATE : 21 April 2008

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : Plaintiff to pay the second defendant's costs

CATCHWORDS : COSTS – costs provisions under the Crimes (Appeal and Review) Act – power of the Court to order costs 'as it thinks just' – relevant considerations in exercising this costs power

Civil Procedure Act 2005 Crimes Act 1900 Crimes (Appeal and Review) Act 1991 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules

CATEGORY : Consequential orders

Goia v Regina [1988] FCA 302 CASES CITED : Regina v JS [2007] NSWCCA 309 Waterman v Gerling [2005] NSWSC 1111

PARTIES : MAURICE CAMPBELL v MARK RICHARDSON & ANOR

FILE NUMBER(S) : SC No 13523 of 2007

P: H Dhanji COUNSEL : 1D: Ms Edwards 2D: T W Thorpe

P: Voros Lawyers SOLICITORS : 1D: I V Knight 2D: S Kavanagh

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HALL J

MONDAY 21 APRIL 2008

No 13523 of 2007

MAURICE CAMPBELL v MARK RICHARDSON & ANOR

JUDGMENT (On application for costs)

1 HIS HONOUR: The Director of Public Prosecutions, the second defendant in these proceedings, applies for an order for costs pursuant to s.54(3) of the Crimes (Appeal and Review) Act 2001 (the "Act"), the plaintiff having failed to obtain leave to appeal pursuant to s.53(3)(a) of the Act. 2 The plaintiff is charged with an offence under the provisions of s.61I of the Crimes Act 1900 (sexual intercourse without consent) and two counts pursuant to s.61L of the Crimes Act (assault with act of indecency). 3 The plaintiff in proceedings before the first defendant, a Magistrate, sought a direction pursuant to s.93 of the Criminal Procedure Act 1986 for the attendance of the complainant to give oral evidence. The first defendant refused to make a direction of that kind on 13 June 2007. 4 The plaintiff served on the second defendant an unsealed copy of a summons under cover of a letter dated 16 July 2007 seeking, inter alia, an order under s.53(3)(a) of the Act setting aside the first defendant's direction dismissing the plaintiff's application. 5 In August 2007, the second defendant advised the plaintiff that the summons did not comply with Part 51B Rule 5(7) of the Supreme Court Rules 1970 and that it had been filed out of time, contrary to Part 51B Rule 5(3) of those Rules. 6 On 10 September 2007, the plaintiff served on the second defendant a sealed copy of an Amended Summons on which an order was sought seeking an extension of time for the filing of the summons. In addition, an order was sought, in the alternative, pursuant to s.69 of the Supreme Court Act 1970 and further, in the alternative, a declaration pursuant to s.75 of the Supreme Court Act. 7 On 25 February 2008, I dismissed the amended summons and directed the parties to confer on a timetable to lodge written submissions on the question of costs. 8 The second defendant relied upon submissions dated 5 March 2008 and the plaintiff responded by way of submissions dated 26 March 2008.