Ahmad v Director of Public Prosecutions (No 2) [2017] NSWSC 204

Supreme Court New South Wales

Medium Neutral Citation: Ahmad v Director of Public Prosecutions (No 2) [2017] NSWSC 204 Hearing dates: In chambers on the papers Date of orders: 08 March 2017 Decision date: 08 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Costs are awarded to the plaintiff and are payable by the defendant. (2) The quantum of those costs is $5000. Catchwords: COSTS – specified lump sum costs orders – the discretion to award costs in civil proceedings – the general rule that costs follow the event – onus of displacing the general rule as to costs lies with the defendant – held that the general rule as to costs is to be applied Legislation Cited: Bail Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ahmad v Director of Public Prosecutions [2017] NSWSC 90 Norfeld v Jones (No 2) [2014] NSWSC 199 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Procedural and other rulings Parties: Thayur Ahmad (Plaintiff) Director of Public Prosecutions (Defendant) Representation: Counsel: Ms Sophie Toomey (solicitor)(Plaintiff) Mr P Low (solicitor) (Defendant)

Solicitors: Toomey Criminal Defence Lawyers (Plaintiff) Office of the Director of Public Prosecutions (Defendants) File Number(s): 2017/12087 Publication restriction: Nil

Background 1. This is an application for reserved costs arising out of proceedings before me on 20 January 2017. The following judgment for costs assumes a familiarity with my previous decision: Ahmad v Director of Public Prosecutions [2017] NSWSC 90. 2. In summary, an application was brought before the Local Court at Burwood on 21 December 2016 for the plaintiff's, Mr Ahmad's, release on bail. However, due to the court's caseload that day, the application was "not reached". It was adjourned for hearing on 31 March 2017 more than one month after the date previously fixed for a "paper committal" of 24 February 2017. 3. Ms Toomey for the plaintiff argued that the Magistrate's order was in breach of certain provisions of the Bail Act 2013 (NSW) and I accepted her argument in part. Consequently, I issued an order that prerogative relief in the nature of mandamus issue requiring the Local Court to determine the plaintiff's bail application before his committal for trial. 4. Before I decide the present application for costs, it will be necessary to say something further about the orders I made on 20 January 2017. It is apparent from the parties' submissions as to costs (in particular, para 14 of Ms Toomey's submissions dated 29 January 2017) that they disagree about the effect of my order. 5. To be clear, my order that the plaintiff's bail application be determined "before his committal for trial" left open the possibility that the application could be heard on the date of the committal. As I understand the parties' competing contentions, it is common ground that the application should be heard prior to committal. The difference is that the plaintiff sought to have the matter remitted to the Local Court for the release application to be heard forthwith, while the defendant said no urgency was required except that it be dealt with before committal, even if only on the date of committal.