On the afternoon of Friday, 15 February 2019 the New South Wales Commissioner of Police applied to the Court pursuant to s 25 of the Summary Offences Act 1988 (NSW) to prohibit the holding of a public assembly. The public assembly was a procession intended to move down King Street, Newtown in a generally easterly direction from Church Street and conclude at Victoria Park on the afternoon of Sunday, 17 February 2019.
At the conclusion of the hearing I indicated that I would make the order that the Commissioner sought. I then adjourned to give the parties the opportunity to confer about whether some suitable alternative arrangement could be made. Following the adjournment, the parties indicated that a further alternative arrangement had been made. In those circumstances I made the order sought by the Commissioner. These are my reasons for doing so.
On 29 January 2019 the Commissioner was served with a Notice of Intention to Hold a Public Assembly pursuant to s 23 of the Act. The public assembly was said to be for a procession of approximately 500 persons who would assemble at Camperdown Park, Newtown at approximately 1pm. They would then proceed at approximately 2pm along Church Street, turning left at King Street and continuing to Victoria Park at 3pm. The purpose of the proposed assembly was said to be "a rally to stop the Adani Coalmine".
Inspector Michael Dykes from the Inner West Police Area Command contacted the defendant who was said on the notice to be the organiser. The following conversation took place:
5. On 6 February 2019 I spoke with Ms Costa-Reidel. During the conversation, I explained to her in words to the following effect:
"There are a number of conditions I wish to impose by agreement with on [sic] the public assembly. By proposing the conditions I intend to reach a compromise the Police [sic] and which would enable the event to proceed in a safe manner."
6. During the conversation, I outlined a number of risks which the proposed route posed to the public, protest participants and police, and that those risks centred around the use of King Street. Notwithstanding my concerns, Ms Costa-Reidel told me in words to the following effect:
"the group intends on walking on the roadway along King Street towards Victoria Park."
7. I explained in words to the following effect:
"King Street has two (2) lanes in either direction with parked cars in lane 1 on both sides of the road. As such there was only one (1) active lane of vehicle traffic for each direction For the safety of participants and police it would require the entirety of King Street to be closed between Church Street and Cleveland Street for approximately one and half hours. This distance is approximately 1.4km and would take approximately thirty (30) minutes to walk without any obstruction or stopping."
8 I also explained that:
"500 participants would not be able to walk along the footpath with banners, flags and signs because the footpath is a standard distance in width and would not be able to cope with this volume of foot traffic, particularly given the large numbers of other people who use the footpath to access the café's [sic] and licensed premises along this route.
An alternate [sic] route which would allow the assembly to occupy the roadway of a parallel road being Victoria Street would be agreeable to the delegate for the Commissioner of Police."
9 Ms Costa-Reidel said words to the following effect:
"I am not in a position to agree with the alternate [sic] route and would have to seek clarification from the Stop Adani group."
10 I explained that:
"If we were not able to come to a negotiated and reasonable agreement with the conditions of the public assembly then an order would be sought from the Supreme Court to prohibit the holding of the public assembly."
On 7 February 2019 Inspector Dykes sent an email attaching a list of conditions for the planned assembly. The conditions included an alternative route which involved the assembly proceeding in a north easterly direction up Victoria Street, turning right into Missenden Road and then proceeding along King Street/City Road to Victoria Park. Only Church St and Victoria St would be closed to traffic.
Condition 15 said:
Participants are not to enter the licensed area of Fair Day in Victoria Park as defined by the crowd control barriers.
The defendant replied on 8 February saying:
We don't agree with these conditions, the group wants to take the initial route, on the road.
On 14 February 2019 Inspector Dykes sent an email making an additional offer for an alternative route. That route appears to be what was called Alternative Route 2 at the hearing. It involved the procession walking north on Church St, turning right at Carillon Avenue, walking up Carillon Avenue to King Street/City Road, and then moving to Victoria Park. I ascertained at the hearing that this route would involve Carillon Avenue, but not King Street/City Road, being closed to traffic.
The defendant responded by saying that the group wished to take the initial route, and she did not agree with the conditions that the Commissioner offered.
Subsequently Inspector Dykes wrote to the defendant on 14 February saying that the Commissioner opposed the public assembly outlined in the notice. She was invited to confer with him as the delegate of the Commissioner at Marrickville Police Station on the morning of 15 February 2019. The letter warned that, if she did not make representations in writing or attend to confer in accordance with the invitation, the Commissioner intended to file and serve a summons on 15 February.
A conference was held but did not achieve agreement on the route. In those circumstances, the Commissioner sought to have the summons filed and heard as a matter of urgency on the afternoon of Friday 15 February 2019.
At the hearing, the Commissioner indicated a number of concerns. He considered that the assembly was too large to walk on the footpaths of King Street and it would be necessary to close King Street to traffic. That provided potential difficulties for emergency vehicles (fire engines and ambulances) because of the narrowness of King Street and the lack of navigable back streets. There was the matter of ambulances being able to traverse King St to reach Royal Prince Alfred Hospital. Further, King Street was the primary route for Sydney buses from the central business district to the inner west and southern suburbs. The Commissioner said that, along the route proposed by the organisers, there were approximately a hundred licensed premises, numerous cafes and other retail outlets, all of which predominantly rely on pedestrian traffic.
The particular difficulty, the Commissioner submitted, was that on Sunday, 17 February 2019 Mardi Gras Fair Day was to take place at Victoria Park. The evidence was that such an event attracts approximately 80,000 patrons. There would be a significant increase in both pedestrian and vehicular traffic. Further, the closest railway station to Victoria Park was said to be Newtown, but the closure of King Street would prevent buses travelling between Newtown station and Victoria Park.
Evidence was given by the defendant about the presence of ten marshals to supervise and control the crowd, particularly in the event of the need for emergency vehicles to pass along King Street.
As has been noted in a number of cases concerned with applications under s 25 of the Act, the Act is entirely silent as to the considerations or criteria that ought to be taken into account: NSW Commissioner of Police v Folkes [2015] NSWSC 1887 at [12]. In Commissioner of Police v Rintoul [2003] NSWSC 662 Simpson J said at [5]:
… It is apparent that the Act is intended to strike a balance between competing rights - the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights. …
In Commissioner of Police v Allen (1984) 14 A Crim R 244 Hunt J said of similar provisions in the Public Assemblies Act 1979 (NSW) (now repealed) at 251:
What both the Commissioner and the court must do, it seems to me, is to balance the democratic right of every person in this community to exercise his or her freedom of speech and freedom of assembly with the democratic rights of others to be spared unnecessary offence or affront by the exercise of those freedoms of speech and assembly. That is not to suggest that such freedom should be limited upon the basis simply that the views to be expressed are unpopular, or even upon the basis that a public assembly to express those views is likely to create a strong reaction in those who disagree with them. Our society is made of sufficiently stern stuff as to be able to cope with disputes of that type.)
Whilst I acknowledge the concerns raised in the evidence for the passage of fire engines and ambulances, I do not consider that those concerns alone would be sufficient to justify an order under s 25(1) of the Act. Nor do I consider that the disruption to traffic or shopkeepers for the proposed assembly would be sufficient to tip the balance in favour of an order under s 25(1). It can reasonably be expected that most public assemblies, particularly processions, would involve disruption of traffic both pedestrian and vehicular, and that that disruption might have some temporary detriment for retailers along the route of any such procession, although such a procession may actually produce a benefit as a result of a concentration of spectators on the route.
I also acknowledge that King Street, Newtown is a major thoroughfare and that on a Sunday it is two lane road with a large amount of traffic and pedestrian movement. However, Inspector Dykes accepted that King Street, Newtown has previously been closed for protests. In an email to the Assistant Commissioner sent at 12.49pm on 15 February, Inspector Dykes said this (inter alia):
Concerns
The proposed step off for the protest march is scheduled for 2pm Sunday 17 February 2019. At this time, on any given day vehicle [sic] and pedestrian traffic on King Street can be described as heavy. In my experience, traffic at these times is similar to that experienced during peak hour. In addition to the ordinary traffic movements, I expect there to be an increase in traffic as a result of "Fair Day" in Victoria Parl, Camperdown which attracts approximately 80,000 patrons for the day. Fair Day is an all age licensed event and is held in the grounds of Victoria Park.
King St has been closed for protests perviosuly (sic), however to my knowledge never when there is a major event such as Fair Day on and again from my own knowledge the march has always gone South away from the location of where this protest wants to march.
In my opinion, the significant matter in this case was that the public assembly was to be held on the same day as Fair Day. The level of disruption by closing King Street to traffic even for a few hours would be considerable.
The defendant frankly gave evidence that a public assembly on Sunday, 17 February had no particular significance for the purpose of the protest the group was making. Nor did King Street itself have any significance apart from the fact that it was a main road which would have the effect of giving the demonstration a high profile and, no doubt, some support from the onlookers for the cause being protested. The defendant also conceded that when the protest was organised she was unaware that Fair Day was to take place on that day.
In Allen, Hunt J (at 250-251) rejected the submission that it is necessary for the Commissioner to establish that there will be a breach of the peace before an order under the earlier equivalent of s 25 is made. There is no suggestion in the present case of any potential breach of the peace.
Justice Hunt gave an example of increased traffic problems which might justify the making of an order in some circumstances but not others. His Honour said that increased traffic problems resulting from a procession through the streets of the city immediately preceding Christmas might be sufficiently disruptive to justify an order, whereas a similar procession at a less busy time might not be sufficient (see at 251). A similar position obtains in the present case.
The evidence is that approximately 80,000 people, on past numbers, might be expected to be at Fair Day held at the park at the end of the proposed route. That itself would result in vastly increased pedestrian and vehicular traffic, a considerable amount of which would need to pass up and down King Street, particularly on public transport. The officer from the NSW Ambulance Service who gave evidence said, based on the experience of previous years, that there was likely to be an increased need for ambulances in the area because of the number of people at Fair Day. The planned route would inhibit access to Royal Prince Alfred Hospital from one important direction.
I consider that the level of disruption which the proposed assembly would cause if it goes ahead on 17 February is at an unacceptable level. It would involve re-routing a number of bus routes on a day when there can be expected to be an increased demand for public transport in that area. It would greatly add to the traffic problems in Newtown and surrounding suburbs, when parking and traffic movement will already be considerably stretched. It will impede the passage of emergency vehicles, particularly ambulances that are likely to be in higher demand by reason of Fair Day.
These matters led me to the view that an order under s 25 should be made.
The parties then requested time to lodge written submissions concerning the appropriate costs order in the circumstances, and for costs to be decided on the papers. Submissions were duly lodged.
The defendant pointed to the lack of any contact from the police after the email to the police from the defendant on 8 February until the further email from the police on 14 February. The defendant submitted that no explanation was provided for that absence of contact. The defendant submitted that the first time there was any mention of the conflict with Fair Day was in the email of 14 February. The defendant submitted that she was only served with all the material in relation to the matter at 2pm on 15 February immediately before the hearing was due to commence.
The defendant pointed to the fact that costs order have not normally been sought or awarded against a defendant even where an order has been made under s 25(1) of the Act. Reference was made to Folkes and to NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5.
The defendant submitted that the public interest in the case includes considering the impact of a costs order against organisers of events who simply seek to exercise their rights to hold public assemblies and give notice to the police in accordance with the Act. The defendant submitted that a costs order would have a chilling effect on the exercise of democratic rights.
The defendant submitted that it is probable that the march could have proceeded had there not been a conflict with Fair Day. The defendant was not aware that this event was on at the time she lodged her notice. The defendant said that she had acted properly when the concerns were expressed by the Court in relation to Fair Day by accepting an alternative route.
The Commissioner drew attention to condition 15 of the conditions proposed by him under cover of the email of 7 February 2019. That condition referred to Fair Day. The Commissioner submitted that two alternative routes were proposed by him but the defendant refused to accept either of them until the matter was brought before the Court. Ultimately, the second alternative route proposed by the Commissioner was accepted as appropriate by the defendant.
The Commissioner submitted that the defendant refused to accept or consider any alternative routes proposed and that such approach was unreasonable, justifying the bringing of the proceedings. The Commissioner submitted that costs were incurred by having affidavits from high ranking officers of the police force, an Inspector of NSW Ambulance and a Superintendent of Fire & Rescue NSW. The deponents attended at Court, except the Assistant Commissioner of Police, on the assumption that they may be cross-examined.
The Commissioner submitted that public interest considerations should not be seen as constituting a general exception to the presumption that an unsuccessful party should pay the costs of the successful party.
The Commissioner drew attention to what was said in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 in relation to costs in public interest litigation. The Commissioner submitted that in the present case both sides held public interest concerns and that there was no basis for making a costs order other than on the ordinary basis.
In my opinion, no basis is shown by the defendant in the present proceedings for any particular costs order based on concepts of public interest. In Vadarlis Black CJ and French J said at [18]:
[18] That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation. It does not follow that the nature and purpose of the proceedings is irrelevant nor is the history and purpose of the statute conferring the discretion to award costs. …
…
[19] To say of a proceeding that it is brought "in the public interest" does not of itself expose the basis upon which the discretion to award or not award costs should be exercised. In contentious areas of public policy it may be said that there are many "public interests" and that it is the elected government which must seek to achieve a balance between those competing interests: Re Sierra Club of Western Canada v British Columbia (Chief Forester) (1995) 126 DLR (4th) 437 (at 447), albeit that was a case decided on appeal on the basis, as in Oshlack, that the award of costs was a matter in the discretion of the trial judge and that the discretion had not miscarried (at 446-447).
Chief Justice Black and Justice French also noted that public interest had been described as a "nebulous concept" by Tadgell J in South Melbourne City Council v Hallam (No. 2) (1994) 83 LGERA 307, a matter taken up by Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at 84.
In my opinion, it is not necessary to resort to any concept of public interest to resolve the question of costs in the present case.
Although the Commissioner was successful in obtaining the order under s 25(1), and although the defendant ultimately agreed to accept alternative route 2 offered by the Commissioner, the only basis upon which the Commissioner succeeded in his claim was that the day on which the public assembly was to take place was an inappropriate one because Fair Day was taking place at Victoria Park. The first time there was any mention of the impact of Fair Day on the proposed assembly was in the email from Inspector Dykes to the Assistant Commissioner sent at 12:49pm on the day of the hearing of the Commissioner's application, and not on 14 February as the defendant wrongly conceded. There is nothing to suggest that the concern there expressed was conveyed to the defendant until the Commissioner's affidavits were served at about 2.00pm on that day.
It is no answer by the Commissioner to say that condition 15 in the conditions sent under cover of the email of 7 February 2019 made reference to Fair Day. All that condition did was to restrict the assembly from entering the area set aside for Fair Day. The Commissioner's opposition to the proposed route was based on matters associated with NSW Ambulance and Fire & Rescue NSW, together with traffic and shopkeeper issues in King Street. Those objections might operate on any day or at least on any Sunday along the proposed route. That was not the basis of the Court's decision.
Although I consider that the defendant could have behaved in a far more cooperative manner than she did by simply rejecting out of hand proposals put forward by the Commissioner without offering any reasons for the refusal or any alternatives herself, those matters were unlikely to have secured success for the Commissioner had it not been for the existence of Fair Day. In other circumstances, such unreasonable lack of co-operation by the defendant might have resulted in a costs order against her.
In those circumstances the appropriate costs order is that each party should bear their own costs of the proceedings. Accordingly, I make no costs order to the intent that each party should bear his and her own costs.
[2]
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Decision last updated: 08 March 2019