AW and Ors v State of NSW [2005] NSWSC 1173

In this matter Greg Walsh acted for AW and others in respect of an application for costs arising from an action for malicious prosecution, wrongful arrest and false imprisonment. Bell J had entered verdicts in favour of the second and third plaintiffs in AW & Ors v State of New South Wales [2005] NSWSC 543.

The application for costs was complicated having regard to the fact that the first plaintiff was unsuccessful in his claim based upon malicious prosecution.

The State of New South Wales submitted that the second and third plaintiffs ought not to obtain an order costs. It was contended that the proceedings fell within the jurisdictional limit of the District Court and that the plaintiffs had not established that there was sufficient reasons for commencing or continuing them in the Supreme Court. The Uniform Civil Procedure Rules 2005 did not contain a similar provision to the part 52A r33 of the Supreme Court Rules.

Bell J considered that this was an important discretionary matter to be taken into account and her Honour held that there was sufficient reason for commencing and continuing the claims in the Supreme Court. The allegations made in support of the claims were of a most serious character and each was entitled to seek vindication in the Supreme Court: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Vignoli v Sydney Harbour Casino Pty Ltd [1999] NSWSC 1227.

Bell J ultimately ordered that the first plaintiff was to pay 20% of the defendants costs of the proceedings not previously dealt with. The defendant was to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with.