Supreme Court New South Wales Medium Neutral Citation: Wise v Schneider (No 2) [2015] NSWSC 799 Hearing dates: On written submissions filed 17.06.15 and 18.06.15. Date of orders: 23 June 2015 Decision date: 23 June 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The plaintiff pay 75% of the defendant's costs of the proceedings up to and including 26 May 2015. (2) The defendant pay the plaintiff's costs of the proceedings from 27 May 2015 up to and including 12 June 2015. (3) There be no order as to costs in respect of the period after 12 June 2015. Catchwords: COSTS – plaintiff only successful on ground raised at hearing – no question of principle. Legislation Cited: - Crimes (Appeal and Review) Act 2001 – s 56(1) - Liquor Act 2007 - Suitors' Fund Act 1951 – s 6 Cases Cited: - ACP v Munro [2012] NSWSC 1510 - Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 - Bimson, Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827 - Coffen v Goodhart [2013] NSWSC 1018 - Cunningham v Cunningham (No 2) [2012] NSWSC 954 - Immigration and Ethnic Affairs, Re Minister for; ex parte Lai Qin [1997] HCA 6; 186 CLR 622 - Wise v Schneider [2015] NSWSC 725 Category: Costs Parties: Sarina Wise – Plaintiff Christopher David Schneider – Defendant Representation: Counsel: K.H. Averre – Plaintiff S. Chapple – Defendant Solicitors: Hunt & Hunt – Plaintiff Yardy Legal Pty Ltd – Defendant File Number(s): 2015/010946 Publication restriction: nil Judgment 1. On 12 June 2015, I upheld an appeal brought by the plaintiff, Inspector Sarina Wise, under s 56(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Review Act"), against a decision of the Local Court (Wise v Schneider [2015] NSWSC 725, "Wise No 1"). The Local Court had dismissed charges under the Liquor Act 2007 (NSW) brought by Inspector Wise against the defendant, Christopher Schneider, and had made a costs order in his favour. I set those orders aside and remitted the proceedings to the Local Court to be determined according to law. 2. The only outstanding matter was costs. In Wise (No 1) at [61] I ordered that the parties exchange and file written submissions in respect of the costs of the proceeding. They duly complied. In Bimson, Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827 I followed the decisions of Button J in Cunningham v Cunningham (No 2) [2012] NSWSC 954 and ACP v Munro [2012] NSWSC 1510, and Fullerton J in Coffen v Goodhart [2013] NSWSC 1018, and held that the Court has the power to award costs in proceedings under Part 5 of the Review Act. Neither party submitted to the contrary. 3. The balance of this judgment should be read together with Wise (No 1). For present purposes it suffices to note that in her original summons Inspector Wise contended that the presiding magistrate erred in law by failing to provide adequate reasons and in awarding costs against her on what was effectively an indemnity basis. At the hearing of the proceedings on 26 May 2015 she sought and was granted leave to raise an additional basis, namely that the presiding magistrate failed to afford her procedural fairness. The Court rejected the complaint that the presiding magistrate's reasons were inadequate (Wise (No 1) at [49]) but upheld the complaint of a denial of procedural fairness (Wise (No 1) at [55]). This conclusion rendered it unnecessary to address the separate complaint about the costs order as it could not be sustained (Wise (No 1) at [56]). 4. On behalf of Inspector Wise it was submitted that Mr Schneider should pay his costs of the proceedings. She accepts that the ground upon which she succeeded was not pleaded initially, but contends that the substance of the complaint in relation to the inadequacy of the reasons was no different. She pointed to the fact that there was no contest at the hearing in the Local Court about certain primary facts but the presiding magistrate refused to accept them. She contends that the main thrust of Mr Schneider's defence throughout the proceedings in this Court was that all of the facts were put in issue in the Local Court and this Court comprehensively rejected that contention in Wise (No 1). Inspector Wise also contends that her complaint about the costs order was valid although in the end result it was not necessary for the Court to resolve it. It was also submitted that Mr Schneider had filed a notice of contention dated 16 February 2015 which was ultimately not relied upon. 5. On behalf of Mr Schneider it was submitted that Inspector Wise should pay his costs up to 27 May 2015 and he should pay Inspector Wise's costs thereafter. He contends that, until the amendment application, he was entitled to succeed in relation to the "substantive aspect" of Inspector Wise's appeal, namely the challenge to the orders dismissing the charges. He notes that the usual approach in such circumstances is that the moving party is entitled to the costs of the proceedings up to the date of the amendment (see Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 at p 154). He further contends that the amendment meant that a closer analysis of the course of the proceedings in the Local Court was required than previously because Inspector's Wise initial complaint only concerned the adequacy of the reasons. Further, he submitted that, if the Court declines to make a costs order in his favour, he should obtain a certificate under s 6 of the Suitors' Fund Act 1951. 6. Subject to one modification, I will make the costs orders sought by Mr Schneider. Although there were references in Inspector Wise's written submissions to the unfairness she suffered as a result of the presiding magistrate rejecting undisputed evidence from her and another prosecution witness, neither the grounds of appeal nor her written submissions identified any relevant legal consequence of that unfairness until the amendment was made. Inspector Wise is a prosecutor. Until the amendment was sought and granted, Mr Schneider was entitled to expect a prosecutor to clearly identify the legal errors in the judgment appealed from. He was entitled to respond to that case and that case alone. He did so. If that case had been maintained he would have succeeded in defending the substantive part of the appeal. 7. The modification to the order sought by Mr Schneider is that I will only order Inspector Wise pay 75% of Mr Schneider's costs up to and including 26 May 2015. This deduction allows for the fact that Inspector Wise's separate complaint about the costs order did not need to be addressed and that Mr Schneider did not press his notice of contention. In relation to the former, the absence of a determination of that issue deprives the Court of the usual means of ascertaining who should bear the costs of that ground. In the absence of disentitling conduct by either party, the proper approach is that each party pay their own costs of the contest on that issue (see Re Minister for Immigration and Ethnic Affairs, ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 624 to 625). In relation to the latter there is no reason why Inspector Wise should pay Mr Schneider's costs of a notice of contention he did not pursue. These points are best accommodated by a reduction in the costs awarded rather than complicating the assessment process by awarding costs to the parties referable to discrete issues. 8. In relation to the period from after the hearing on 26 May 2015 until judgment Mr Schneider should bear the costs of the proceedings. He had more than sufficient opportunity on 26 May 2015 to consider the point raised by the amendment and concede the appeal. Instead he chose to fight on. Given those circumstances and the fact that there is a costs order in his favour I would not grant a certificate under the Suitors' Fund in his favour. 9. There will be no order as to costs in relation to the argument over costs. 10. Accordingly the Court orders that: 1. The plaintiff pay 75% of the defendant's costs of the proceedings up to and including 26 May 2015. 2. The defendant pay the plaintiff's costs of the proceedings from 27 May 2015 up to and including 12 June 2015. 3. There be no order as to costs in respect of the period after 12 June 2015. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2015