Citation: McColm (Department of Regional NSW) v Tucker (No 3) [2025] NSWDC 360
Court: District Court of New South Wales
Date: 12 September 2025
Judge(s): Scotting DCJ
Background
This decision is the third instalment in a prosecution brought by the Department of Regional NSW against an offender. The matter followed a sentencing judgment in which the court deferred final costs orders to allow the prosecutor to present further evidence and submissions.
The sentencing judgment had left two costs questions unresolved. The parties agreed that the prosecutor had succeeded and was entitled to a costs order, but the precise scope of that order required further consideration. A related prosecution of a separate party (referred to as RQA) arose from the same incident, raising a question about whether some costs had been duplicated across the two matters.
Both sides filed affidavit evidence from their respective solicitors addressing the costs issues. The court considered that material before making its final determination.
Legal Issues
- Whether the prosecutor's costs order should be reduced by a percentage to account for overlap between this prosecution and the separate prosecution of RQA arising from the same incident
- Whether any costs associated with an abandoned expert report should be excluded from the prosecutor's costs entitlement
- Whether the offender was entitled to costs thrown away in retaining a responsive expert report
Decision
Issue 1: Percentage reduction for overlap with parallel prosecution
The court had itself raised the question of whether a percentage reduction should apply because this prosecution and the RQA prosecution shared the same factual origin. After reviewing the affidavit evidence from both solicitors, the court was satisfied that the prosecutor had made reasonable efforts to maintain a separation of costs between the two prosecutions (at [6]). The court declined to apply a percentage reduction to the prosecutor's costs (at [6]).
Issue 2: Costs associated with the abandoned expert report
It was common ground that any costs relating to the prosecutor's abandoned expert report should be excluded from the costs order in the prosecutor's favour (at [4]). The court gave effect to that agreement in its final orders.
Issue 3: Offender's costs thrown away for responsive expert
Again by agreement, the court accepted that the prosecutor should bear the costs the offender incurred in retaining a responsive expert report that became unnecessary when the prosecutor abandoned its own expert (at [4]). The court ordered accordingly.
Issue 4: Assessment of the quantum of costs
While the court observed that the costs claimed appeared to be within an expected range, it expressly declined to form a view on whether the figure was reasonable or appropriate (at [7]). It directed that the costs be either assessed by a costs assessor or resolved through further negotiation, describing that course as the fairest outcome (at [7]).
Orders Made
- The offender is to pay the prosecutor's costs of the proceedings, except for any costs relating to the retention of the prosecutor's expert.
- The prosecutor is to pay the offender's costs thrown away relating to the retention of the offender's expert.
Key Takeaways
- The District Court declined to apply a percentage reduction for overlap between two related prosecutions arising from the same incident, where the evidence established that the prosecutor had made reasonable efforts to keep the costs of each prosecution separate (at [6]).
- Where a party abandons an expert report, it is appropriate to exclude costs associated with that report from any costs order in that party's favour, and to require that party to meet costs the opposing party wasted in responding to the now-abandoned expert (at [4]).
- Noting that a costs figure falls within an expected range does not amount to a judicial endorsement of that figure as reasonable or appropriate. The court expressly reserved that question for a costs assessor or negotiated resolution (at [7]).
- Costs assessors remain the preferred mechanism for determining quantum where a court is satisfied a costs order is warranted but is not in a position to confirm the precise figure is appropriate (at [7]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated