Ward v Zimmer (No 2) [2015] NSWSC 1097

Supreme Court New South Wales

Medium Neutral Citation: Ward v Zimmer (No 2) [2015] NSWSC 1097 Hearing dates: On Written Submissions Decision date: 07 August 2015 Jurisdiction: Common Law Before: Hall J Decision: The plaintiff to pay the defendant's costs of the appeal proceedings in this Court in the sum of $14,000 within 28 days. Catchwords: COSTS – Appeal from decision of magistrate to allow the prosecution to re-open their case after decision reserved – Application to re-open arose from DNA evidence becoming available which had not been available to the prosecutor previously – Whether the proceedings on appeal were 'criminal' or 'civil' – Whether departure from general rule that costs follow the event warranted – Contention by the plaintiff that the conduct of the prosecutor in the Local Court proceedings was so linked to the appeal proceedings that he should be disentitled to costs – Held that the appeal proceedings in this Court were distinct from the proceedings below – Defendant had not engaged in any disentitling conduct during the appeal proceedings – Conduct of parties below could be taken into account by the Local Court in its own exercise of discretion in relation to costs – Held that the defendant was entitled to the costs order he sought – Lump sum costs order made Legislation Cited: Civil Procedure Act 2005 Crimes (Appeal and Review) Act 2001 Legal Profession Act 2004 Supreme Court Act 1970 Cases Cited: CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Latoudis v Casey (1990) 170 CLR 534 R v Chin (1985) 157 CLR 671 Ward v Zimmer [2015] NSWSC 525 Category: Costs Parties: Craig Ward (Plaintiff) Detective Sergeant Mathew Zimmer (Defendant) Representation: Counsel: K Earl (Plaintiff) C McGorey, solicitor (Defendant)