Aouad v R; El-Zayet v R

Judgment 1His Honour: Judgment in these proceedings was delivered on 14 June 2013. Mr Aoud and Mr El-Zayet (the applicants) unsuccessfully sought by separate notices of motion the following orders: 1. That the document handed up in this court on 1st June 2012 by the Crown Prosecutor be produced to the court for inspection (pursuant to s 133 of the Evidence Act 1995 (NSW), if that Act applies). 2. A declaration that any privilege over the document handed up in this court on 1st June 2012 by the Crown Prosecutor has been waived. 3. That the applicants have immediate access to the document handed up in this court on 1st June 2012 by the Crown Prosecutor; or alternatively have leave to file in court a Notice to Produce directed to the New South Wales Director of Public Prosecutions returnable immediately seeking only the production of the document handed up in this Court on 1st June 2012 by the Crown Prosecutor. 4. An order that the respondent pay the applicants' costs of these motions. 2Each notice of motion was dismissed. Pursuant to directions made by the court, written submissions as to costs have been received from the parties, who are content to rely on their submissions without oral argument. Argument 3As the successful party to the proceedings, the Crown asks that its costs be paid by Mr Aoud and Mr El-Zayet. The Crown submits that the notices of motion fall within the definition of civil proceedings as contained in s 3 Civil Procedure Act 2005 and that costs should follow the event. The Crown contends that the notices of motion were bound to fail, especially so given that on 22 August 2012 the matter was stood over for the enquiry to be made as to whether the document had been shown to the instructing solicitors. When it became apparent that it had not, the Crown says any submission that privilege had been waived was clearly unmeritorious and unreasonable. 4Ms Carroll, counsel for Mr Aouad, does not argue against the Crown's characterisation of the proceedings as civil proceedings, but notes that the orders sought arose out of criminal proceedings in the Supreme Court. Mr Aouad has been in full time custody since 2003 and has been funded by Legal Aid NSW. Ms Carroll contends that there is justification for the court to depart from the ordinary position in civil proceedings as the motion had arisen from the filing of a document by the Crown and it was the Crown's particular acts that gave rise to the inference that privilege had been waived. 5Ms Carroll submits that the document was of some significance as Hidden J considered recusing himself after having read it and it was not unreasonable for Mr Aouad to seek access to it. Mr Aouad asks that an order be made that each party pays their own costs. 6Mr Ramage QC (with Mr McLachlan) counsel for Mr El-Zayet contends that the criminal proceedings remain on foot and the notice of motion was filed and heard in these criminal proceedings. Mr Ramage argues that the Crown's proposition that the notice of motion was a civil proceeding is erroneous and there is no statutory basis upon which the Crown is entitled to costs. Even if costs could be awarded, Mr Ramage submits that would be inappropriate given that the privilege issue fundamentally arose out of the Crown Prosecutor's action in filing the document in open court. He submits the assertion that pursuit of the motion was "unmeritorious and unreasonable" is unjustifiable and the Crown's request for costs is without precedent. 7The Crown submits in reply that it has not engaged in any disentitling conduct which would warrant the court exercising its discretion not to award costs following the event. The Crown argues that the matters raised by the applicants were irrelevant to the exercise of the court's discretion. Civil or Criminal Proceedings? 8The first controversial issue is whether the notices of motion are civil or criminal proceedings. Should the proceedings be civil in nature, the Civil Procedure Act governs the question of costs. 9"Criminal proceedings" and "civil proceedings" are defined in s 3 of the Civil Procedure Act as follows: "Civil proceedings means any proceedings other than criminal proceedings." "Criminal Proceedings mean proceedings against a person for an offence (whether summary or indictable), and includes the following: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence." 10The entry of the nolle prosequi terminated the proceedings against Mr Aouad and Mr El-Zayet on the indictment for the murder of Ahmed Fahda. Mr Aouad and Mr El-Zayet applied for the grant of certificates pursuant to s 2 of the Costs in Criminal Cases Act 1967 (CCC Act). The grant of a certificate entitles the person to whom a certificate has been granted to apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates: s 4 the CCC Act. Although s 2(1) of the CCC Act confines the grant of a certificate to "any proceedings relating to any offence", proof of those matters must be established under s 3 before a certificate will be granted on the balance of probabilities (the civil standard): Reddy v R; Tan v R [2013] NSWSC 907 at [4]. An application for a certificate under the CCC Act is not a proceedings against a person for an offence nor are such proceedings identified as being included in the definition of "criminal proceedings" in the Civil Procedure Act. It seems to me that an application for a certificate under the CCC Act is a civil proceedings. 11The unsuccessful notices of motion sought the waiver of privilege in respect of page 6 of the legal advice report that was handed up by the Crown Prosecutor to Barr AJ. On the hearing of the motions, the sole relevance of this document was the possible impact it might have on the question of costs. The proceedings before me arose directly out of the applications for a certificate. They are not proceedings against a person for an offence nor are they identified as being included in the definition of criminal proceedings in the Civil Procedure Act. In my opinion, the proceedings are civil proceedings and the Civil Procedure Act applies. Decision 12Section 98 Civil Procedure Act is as follows: "98 (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." 13It is well recognised that s 98 creates a wide discretion to award costs. As was said by Bryson JA in G R Vaughan (Holdings) Pty Ltd & Anor v Vogt & Anor [2006] NSWCA 263 at [17]: "Discretions as to costs are not correctly seen as confined by rules which have been stated by appellate courts or established by practice. The limitations of appellate intervention in discretionary decisions as to costs, as in other discretionary decisions, were clearly recognised in Oshlack v Richmond River Council (1998) 193 CLR 72 - see Gaudron and Gummow JJ at 81-89 and particularly at 88[40] 'There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 ... that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party. (Knight v Clifton [1971] Ch 700 at 710, 713-714, 716, 724-725; Tekmat Investments Pty Ltd v Ward (1988) 81 ALR 278 at 280)'". 14The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (UCPR), r 42.1. True it is that there is nothing in the conduct of the proceedings on the part of the Crown that disentitles it from a costs order, but the applicants point to the issue of privilege arising from the handing up of the document by the Crown Prosecutor to the judge as a matter justifying the departure from the general rule. Another matter that is said to be relevant to the general discretion as to costs is that the cases for the applicants were not without substance. Mr Ramage's submission that the Crown's request for costs is "without precedent" is not supported by any authority or other material and I give little weight to this contention. 15On the general rule that costs follow the event Hodgson JA in Commonwealth of Australia v Gretton [2008] NSWCA 117 said at [121]: "In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach." 16Although the issues on the motions found their genesis in the Crown Prosecutor's actions, it was open to the applicants to accept the Director of Public Prosecution's claim of privilege, but they nevertheless mounted the argument of waiver. It is not uncommon that unsuccessful litigants will have a case that is not devoid of merit. In all the circumstances, I consider that the applicants are responsible for the incurring of costs and fairness dictates that costs should follow the event. Orders