AT v COMMISSIONER OF POLICE, NSW

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 36.15, 36.16

AT v Commissioner of Police, New South Wales [2010] NSWCA 131 AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 Baley v Marinoff [1971] HCA 49; 125 CLR 529 Cameron v Cole [1944] HCA 5; 68 CLR 571 Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462 DJL v Central Authority [2000] HCA 17; 201 CLR 226 CASES CITED: Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 Malouf v Prince (No 2) [2010] NSWCA 51 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; 71 NSWLR 262 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 Spina v Permanent Custodians Ltd (No 2) [2009] NSWCA 419

PARTIES: A T (Appellant) Commissioner of Police, New South Wales (Respondent)

COUNSEL: S T O'Brien (Appellant) M T Hutchings (Respondent)

SOLICITORS: Capital Lawyers, Canberra (Appellant) Office of General Counsel, NSW Police Force (Respondent)

LOWER COURT JURISDICTION: Administrative Decisions Tribunal of NSW Appeal Panel

LOWER COURT JUDICIAL OFFICER: Judge KP O'Connor, President; S Montgomery, Judicial Member; A O'Neill, Non-judicial Member

LOWER COURT DATE OF DECISION: 16 January 2009

LOWER COURT MEDIUM NEUTRAL CITATION: AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/00298244

BEAZLEY JA BASTEN JA MACFARLAN JA

9 December 2010 A T v COMMISSIONER OF POLICE, NEW SOUTH WALES (NO 2) Judgment 1 BEAZLEY JA: I agree with Basten JA. 2 BASTEN JA: On 4 June 2010 the Court delivered judgment in this appeal, allowing the appeal and setting aside orders made by the Appeal Panel of the Administrative Decisions Tribunal: AT v Commissioner of Police, New South Wales [2010] NSWCA 131. The effect of those orders was that the Commissioner was required to pay the applicant's costs before the Judicial Member of the Tribunal, before the Appeal Panel and in this Court. 3 In accordance with the usual practice, the orders were entered on 4 June 2010. 4 On 8 September 2010 the applicant filed a notice of motion seeking variation of order (6) which provided for payment of the appellant's costs in this Court. The new order sought was as follows: "The respondent pay the appellant's costs in this Court on a party/party or ordinary basis until 15 September 2009 and thereafter those costs are to be paid on an indemnity basis in accordance with UCPR 42.14." 5 Although there was no affidavit filed in support of the motion and no evidence was tendered, it is common ground that the applicant made an offer on 15 September 2009, which was not accepted by the Commissioner. The offer sought orders that the appeal be allowed and the matter be remitted to the Tribunal. The offer also sought the costs of the appeal on the ordinary basis. It may be assumed for present purposes that the judgment obtained was "no less favourable" to the appellant than the terms of her offer. Power to vary entered order 6 There are occasions on which the Court, either at the request of a party, or because a matter has been disposed of in a way which might not have been foreseen at the hearing, declines to make an order for costs when delivering judgment, and permits the parties to make submissions as to the appropriate order. In most cases, however, the appropriate costs order is made when the proceedings are disposed of, so as to avoid the need for further steps to be taken by the parties. 7 Where a costs order is made, and entered, it is necessary for any application to vary the order to be made by notice of motion "filed within 14 days after the judgment or order is entered": Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 36.16(3A). The time to take that step expired on 18 June 2010, more than two and a half months before the notice of motion was in fact filed. In those circumstances, there is, arguably, no power to set aside or vary the order: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462 at [6]-[16]. As noted in Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336, the Court has "contemplated the possibility" that a costs order could be varied notwithstanding no notice of motion was filed within 14 days after the order was entered, if there had been an oral application to vary within that period: at [6] (Campbell JA), referring to Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [9]-[12]. There was no such application in the present case. 8 In Refrigerated Roadways at [10], consideration was also given to the possibility that "the stringency of the 14 day time period might be ameliorated" by exercise of the power granted by the Civil Procedure Act 2005 (NSW), s 14, which provides: " 14 Court may dispense with rules in particular cases In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case." 9 Although the possibility of reliance on s 14 was also noted in Spina v Permanent Custodians Ltd (No 2) [2009] NSWCA 419 at [9], the difficulty with such an approach is that the course permitted by s 14 must act differentially, so as to remove the time limit and leave an unlimited power in the Court to vary orders which have been entered. Because r 36.16 itself precludes the operation of r 1.12, which might otherwise allow the Court to extend the time, this would constitute a rewriting of r 36 in a way clearly not envisaged by its terms: cf r 36.16(3C). 10 Nor is it possible to omit the whole of the rule, because then one would be left with the general law, which does not permit a court, absent statutory authority, to vary orders once they have been entered: DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [38]-[40], referring to Baley v Marinoff [1971] HCA 49; 125 CLR 529 at 530. In Malouf v Prince (No 2) [2010] NSWCA 51 at [20], the Court (McColl and Macfarlan JJA, Nicholas J) referred to a statement in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 at [23] where French CJ, Gummow, Hayne and Crennan JJ stated: "It is no doubt arguable that the reference to 'any requirement of rules of court' in s 14 limits its application to rules imposing some duty on parties and does not extend it to a rule imposing limitations on the power of the court to order costs." 11 In Malouf, the Court considered that r 36.16 fell within the former category. 12 Rule 36.16 is not the only means by which orders may be varied. For example, an order may be varied if the judgment was given or entered "irregularly, illegally or against good faith": r 36.15, and Cameron v Cole [1944] HCA 5; 68 CLR 571 at 589; see also Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; 71 NSWLR 262 at [85] (Spigelman CJ, Tobias and Campbell JJA agreeing); AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 at [71]; Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [41]. A judgment may also be varied where there has been a "clerical mistake" or an error arising from "an accidental slip or omission": r 36.17. However, there is no suggestion that either of these rules may be invoked in the present case. 13 It should be added that the "stringency" of the present rule is a result of orders being "entered" by recording them in the computerised record system of the Court, immediately that judgment is delivered. In the past, a party seeking to enforce an order would be required to "take it out", which involved a deliberate process giving rise to the order being entered in the Court record. There was usually an opportunity for a party concerned that the order did not properly reflect the judgment, or for other reasons, should not be made in the form found in the judgment, to raise the issue before the Court. That opportunity is no longer available. The rule is a trap for unrepresented litigants; even the legal profession appears to have been slow to realise the time constraint imposed. Nevertheless, the rule itself constitutes an amelioration of the position under the general law. Variation not appropriate 14 Even if the Court were able to make a different order, such a course would not be appropriate in this case. For the Tribunal to reconsider the matter constructively it would need to be aware of the error made on the earlier occasion. The offer of compromise did not provide that assistance and was not, therefore, a practical solution to the dispute. 15 The respondent, further asserted that the offer required capitulation and involved no element of compromise on the part of the appellant. There is merit in that submission, but it need not be considered further in the circumstances discussed above.

Order on motion 16 The present application was late and lacked merit. It should be dismissed. There is no reason why the costs of the motion should not follow the event. Accordingly, the Court makes the following orders:

1. Dismiss the appellant's motion of 8 September 2010 seeking to vary the costs order made on 4 June 2010;

2. Order the appellant to pay the respondent's costs of the motion. 17 MACFARLAN JA: I agree with Basten JA. **********

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