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Category: Costs

Parties: Christian de Robillard (Plaintiff)
Commissioner of Police (NSW Police Force) (First Defendant, between 11 August 2025 and 1 September 2025, and from 29 April 2026 onwards)
Director of Public Prosecutions (NSW) (First Defendant, between 1 September 2025 and 29 April 2026)
Local Court of NSW (Second Defendant, submitting)

Representation: Counsel:
In person (Plaintiff)
W Liu (Director of Public Prosecutions (NSW))
Solicitors:
Solicitor for Public Prosecutions (NSW) (Director of Public Prosecutions (NSW))

File Number(s): 2025/305931

Publication restriction: Nil

JUDGMENT

1. The only issue addressed in this judgment is whether, as the plaintiff contends, an order should be made that the Director of Public Prosecutions (DPP) pay his costs of and incidental to the proceedings to date, in the gross sum of $5,000 or, as the DPP contends, costs of the proceedings to date should be reserved. The plaintiff represents himself in these proceedings and is not entitled to recompense for the value of his time spent in litigation: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 at [1]. His costs entitlement, if any, is limited to his disbursements. Indeed, the plaintiff seeks only costs representing what he says are the disbursements he has incurred in the proceedings to date.

Background

2. These proceedings were commenced by summons filed (together with an affidavit sworn by the plaintiff in support of the summons) on 11 August 2025. In the summons the plaintiff sought orders in the nature of certiorari and mandamus in respect of a refusal on 12 May 2025 by Zdenkowski ALCM to accede to the plaintiff’s contention that he should recuse himself from hearing criminal proceedings instituted against the plaintiff in the Local Court (L****ocal C****ourt proceedings). In the summons the plaintiff also sought declarations that his arrest by members of the New South Wales Police Force on 10 April 2024 was contrary to law and that his prosecution for the offences being heard by Zdenkowski ALCM in the Local Court proceedings was an abuse of process. Somewhat confusingly, however, under the headings “Proceedings being reviewed” and “Details of decision” in the summons, the plaintiff identified only the decision of Zdenkowski ALCM not to recuse himself. This gave rise to some uncertainty as to whether the plaintiff’s claim for relief by way of judicial review was limited to the decision of Zdenkowski ALCM or whether it extended to the arrest and prosecution of the plaintiff.

3. The summons named two defendants, the Commissioner of the New South Wales Police Force and the Local Court of New South Wales. However, on 1 September 2025 the DPP gave notice in the proceedings (1 September 2025 notice) that, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) (DPP Act), she had taken over as first defendant in these proceedings in respect of the prosecution of the plaintiff in the Waverley Local Court for two offences, namely, unlawful entry on inclosed lands contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW) and resist police officer in the execution of duty contrary to s 60(1AA) of the Crimes Act 1900 (NSW) (together, the charges). These were the offences being prosecuted in the Local Court proceedings.

4. On 9 September 2025 the DPP filed a response to the summons.

5. On 15 December 2025 the Local Court filed a submitting appearance.

6. On 23 February 2026 the charges were withdrawn and the Local Court proceedings were discontinued by the DPP.

7. These proceedings have, however, continued, with the DPP named as first defendant and the Local Court as second defendant.

8. The Common Law R****egistrar has repeatedly made orders seeking to progress these proceedings. On multiple occasions since 2 September 2025, orders have been made setting a timetable for, relevantly, the plaintiff to file any further evidence upon which he relied and written submissions. According to an order of the Registrar made on 2 September 2025, these were to be filed and served by 17 October 2025. That order was vacated on 23 October 2025, when the plaintiff was instead ordered to file and serve any notice of motion, supporting affidavit and submissions by 20 November 2025. The date for those documents to be filed was subsequently extended to 15 December 2025. No notice of motion or submissions were filed pursuant to those orders.

9. On 2 February 2026 the plaintiff was directed to file and serve any further evidence and submissions by 2 March 2026. Then, on 9 March 2026 (no evidence or submissions having been filed), the plaintiff was ordered to file evidence and submissions by an extended date of 30 March 2026 and the Registrar directed that “if not so filed and served will need the leave of the court to rely on any evidence and submissions by 13 April 2026”. On 9 March 2026 the Registrar also directed that the DPP file evidence and submissions by 13 April 2026 and that the summons be listed for hearing on 29 April 2026. The plaintiff did not comply with those orders, but on 13 April 2026 the DPP filed submissions and an affidavit of Emily Gadsby affirmed that day. In those submissions, the DPP submitted that the judicial review proceedings should be dismissed as they lacked utility in circumstances where the Local Court proceedings had been discontinued. As regards the claims for declaratory relief, the DPP submitted that these were unrelated to the decision which the plaintiff sought to review, were insufficiently pleaded and that there was insufficient evidence before the Court to make a determination in respect of those matters. The DPP also submitted that the Court should not grant the declaratory relief sought in the exercise of its discretion.

10. No submissions or evidence (other than the affidavit filed with the summons) having been filed or served by the plaintiff, my Chambers emailed the parties at 10.14 am on 23 April 2026 seeking confirmation that the plaintiff was not relying upon any written submissions or further evidence in the proceedings. At 12.38 pm on 23 April 2026 my Chambers received an email from the plaintiff indicating that he “should be in a position to send written submissions to Chambers by Monday 27 April 2026”. In this email the plaintiff indicated that “until very recently, I had agreed to Discontinue subject to the Director agreeing to refund my expenses which I estimate to be under $5,000. The Director has refused without suggesting any lesser amount”. My Chambers responded by email of 2.35 pm on 23 April 2026 referring to the requirement that leave be granted for any submissions or evidence filed after 30 March 2026 and indicating that any submissions or evidence filed by 27 April 2026 should address why leave should be granted to rely upon them.

11. The plaintiff sent an email attaching unfiled written submissions to my Chambers, copied to the solicitor for the DPP, at 4.10 pm on 28 April 2026, the afternoon before the hearing listed before me at 10 am on 29 April 2026. In those submissions, the plaintiff indicated that he was no longer seeking any relief in respect of the Local Court proceedings but that he maintained his claims for declaratory relief in respect of his arrest and prosecution (and he subsequently confirmed that the latter claim was pressed only as regards his prosecution by the Commissioner, not by the DPP). He also submitted that the DPP had not established her right to appear in the proceedings. He sought orders that the 1 September 2025 notice be declared ineffective insofar as it operated to remove the Commissioner as first defendant, that the Commissioner be restored as first defendant, that the plaintiff have leave to amend the summons to add common law claims against the New South Wales Police Force and Apple Pty Ltd and to plead defamation against News Limited group or, in the alternative, that his claims seeking declaratory relief proceed to determination, and that the DPP pay his costs of and incidental to the proceedings to date in the gross sum of $5,000. He identified in his submissions that those costs comprised filing fees, transcript costs and limited other disbursements, although he did not identify, attach, or file any evidence supporting his contention as to the amount he had incurred as disbursements.

12. The DPP did not oppose leave being granted to the plaintiff to rely upon these submissions.

The hearing on 29 April 2026

13. At the hearing on 29 April 2026 I indicated to the parties my provisional view that, in light of the Local Court proceedings having been discontinued and the plaintiff no longer pressing his claim for judicial review of the decision of Zdenkowski ALCM, the DPP should be removed as a party to the proceedings under r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the Commissioner should be rejoined as first defendant under r 6.24(1) of the UCPR. I indicated to the parties that I was not expressing any view as to whether or not the DPP had power to give the 1 September 2025 notice and that, if I were to make the orders provisionally proposed, I did not propose to determine that issue. I also indicated that I would timetable submissions and any further evidence on costs of the proceedings to date and determine that issue on the papers.

14. Both parties indicated that they were content that I make the orders provisionally proposed. The plaintiff submitted that the issue he had raised as to the power of the DPP under s 9 of the DPP Act was a point of substance that should at some time be resolved by a court but did not press for this to be determined in these proceedings.

15. The plaintiff tendered a letter addressed to the solicitor for the DPP dated 1 September 2025 and a transcript of the directions hearing before the Registrar on 2 September 2025, both on the issue of costs.

16. Counsel for the DPP submitted that she anticipated that the plaintiff would need to put on evidence to support his assertion that he had incurred $5,000 in respect of the costs of disbursement and the plaintiff responded that he would like the opportunity to do so.

17. Accordingly, I made orders including those provisionally proposed and orders timetabling the proceedings moving forwards, and set a timetable for the plaintiff to file any further evidence as to costs and for the DPP to file submissions on costs.

What order should be made as to the costs of the proceedings to date?

18. The plaintiff seeks an order that the DPP pay his costs of and incidental to the proceedings to date in the gross sum of $5,000. He has not filed any evidence as to the costs that he has incurred by way of disbursements. The DPP seeks an order that the costs of the proceedings to date be reserved.

19. For the reasons set out below, I am satisfied that no order should be made as regards the costs of the proceedings between 1 September 2025 and 29 April 2026 (inclusive), when the DPP was named as the first defendant.

20. First, in circumstances where the plaintiff has not put on any evidence as to the amount of his disbursements, I would not make a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). In the absence of such evidence, I could not do so in a manner which was fair as between the parties: Filby v TEG Live Pty Ltd (No 2) [2026] NSWCA 36 at [29]; Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6].

21. Second, the plaintiff has not made an offer of compromise complying with the requirements of UCPR, r 20.26, thus UCPR, Pt 42, Div 3 does not apply: UCPR, r 42.13. Moreover, UCPR, r 42.34 (relied upon in the plaintiff’s written submissions) has no application as the plaintiff has not obtained a judgment against a defendant.

22. Third, the failure by the DPP to accept an offer by the plaintiff to discontinue the proceedings on the payment of $5,000 on account of disbursements was entirely reasonable in circumstances where the plaintiff did not, and still has not, provided any evidence that he has incurred disbursements in that sum.

23. Fourth, the plaintiff has repeatedly failed to comply with orders that he file submissions and any further evidence that he wished to rely upon. The written submissions undoubtedly crystallised the plaintiff’s position in the proceedings, the prayers in the summons he was pressing and the orders he was asking the Court to make. Those submissions resolved the uncertainty in the summons as to whether the plaintiff’s application for judicial review extended beyond the decision of Zdenkowski ALCM not to recuse himself.

24. Fifth, as set out above, on 29 April 2026 I made orders to progress the claims now being pressed by the plaintiff, without opposition from either the plaintiff or the DPP, and without forming any view as to the correctness or otherwise of the plaintiff’s contention that the DPP did not have power to issue the 1 September 2025 notice. Having regard to the factors identified by Beazley P (as her Excellency then was, Leeming JA agreeing) in Ibrahim v PERI Australia Pty Limited [2013] NSWCA 328 at [17]-[19], I am satisfied that the appropriate order is that there be no order as to the costs of the proceedings whilst the DPP was a party. In particular, I am not satisfied that either party has acted unreasonably in commencing or defending the proceedings. Nor am I satisfied that the plaintiff’s contention that the DPP lacked power to issue the 1 September 2025 notice had a high likelihood of success, or that I should determine this issue which is now relevant in the proceedings only on the issue of costs: see by analogy Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201; [1993] FCA 585, cited with approval in R**e Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6.

25. I am also satisfied that, neither party’s primary position having been accepted, there should be no order for the costs on the issue of the costs of the proceedings to date.

Conclusion

26. The orders I make are:

27. There be no order as to the costs of the proceedings between 1 September 2025 and 29 April 2026 (inclusive); and

28. There be no order as to costs on the issue of costs of the proceedings to date.

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