[2014] ACTSC 154

The first plaintiff pay the costs of the second and third defendants;

The second plaintiff pay the costs of his joinder application;

PROCEDURE - Costs - joinder application - no reason to depart from usual order - joinder applicant to pay own costs

Crimes Act 1900 (ACT) pt 20

Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104

Golski v Kirk (1987) 14 FCR 143 at 157

Director of Public Prosecutions for the Australian Capital Territory (First Plaintiff)

The Honourable Acting Justice Brian Martin (First Defendant)

The Supreme Court of the Australian Capital Territory (Second Defendant)

Attorney General for the Australian Capital Territory (Intervener)

Mr T Game SC, Mr S Free and Ms J Roy (First Plaintiff)

Dr I Freckelton SC and Mr A Imrie (Second Defendant)

Mr P Garrisson SC and Mr N Hancock (Fourth Defendant)

Office of the Director of Public Prosecutions, ACT (First Plaintiff)

The First Defendant filed a submitting notice (First Defendant)

The Second Defendant filed a submitting notice (Second Defendant)

Legal Aid ACT (Third Defendant)

1. On 22 May 2014 this Court dismissed an application by the ACT Director of Public Prosecutions for judicial review of a decision of a single judge of this Court acting in an administrative capacity to order an inquiry into the conviction of David Harold Eastman under Part 20 of the Crimes Act 1900 (ACT) and of a ruling of an acting judge of this Court appointed to conduct the inquiry. The Court found that there was no merit to the challenge to the ruling of the acting judge. Though it held that the challenge to the decision to order the inquiry was well-founded and granted the Director an extension of time to pursue it, the Court refused to grant relief in the exercise of its discretion: see Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104.

2. At the time the Court reserved the question of costs but indicated its preliminary views. They were that the Director should pay Mr Eastman's costs, as he had agreed to do, and also the costs of the Australian Capital Territory; that the Attorney-General for the ACT, who had intervened, pay his own costs; and that Robert Collins Barnes, whose conduct as a ballistics expert at Mr Eastman's trial was the subject of some of the grounds upon which the order for the inquiry had been made and who successfully applied to be added as a plaintiff, should pay the costs of his joinder application. The Court invited the parties to indicate their attitudes to this proposal.

3. The Director's position is unknown. The Attorney and the ACT consented to orders in the terms proposed. So did the Legal Aid Commission, which acted for Mr Eastman. Mr Barnes was content with an order that he pay his own costs but resisted an order that he pay anyone else's. In substance, he requested a variation to the proposed orders so that there be no order as to the costs of his joinder application. For the following reasons, that request should be denied.

4. As Mr Barnes submitted, costs are in the discretion of the Court but in general, costs will follow the event. Yet, as Mr Barnes acknowledged, where (as here) a procedural indulgence is sought, an applicant is ordinarily required to pay the costs of an interlocutory application of this kind, even if the application is successful: see, for example, Golski v Kirk (1987) 14 FCR 143 at 157.

5. Mr Barnes contended, however, that in the present case the ordinary practice should not be followed. None of his contentions is persuasive.

6. First, Mr Barnes claimed that his application occasioned no prejudice to any party, had a negligible effect on the management of the case, and raised no significant new legal or factual questions.

7. This contention confuses Mr Barnes's joinder application, which Mr Eastman opposed, with the merits of the Director's application, which Mr Barnes supported. The joinder application raised different questions from the questions raised in the principal proceeding, questions concerning the application of the Court's discretion to add Mr Barnes as a party and as to his standing. Each party was required to address those issues. All parties (and the intervener) did so orally; Mr Eastman also did so in writing.

8. Mr Barnes's second contention was that the proceedings raised issues of significant public importance and that it was "reasonable and appropriate" for him to seek to be joined to the proceeding, having regard to the importance and gravity of the issues and the need to achieve finality and avoid "duplicity of proceedings". He described this as "the most effective use of public funds".

9. Whether or not it was "reasonable and appropriate" for Mr Barnes to seek to be joined, that is not a sufficient basis for departing from the ordinary practice. If it was unreasonable he might be ordered to pay costs on an indemnity basis.

10. Mr Barnes's third contention was based on the fact that he was the only party not funded out of the public purse. He claimed that an order requiring him to compensate a public body from his private funds would be "unjust and unreasonably oppressive in the circumstances".

11. It is irrelevant that the other parties are funded out of the public purse. Why should public monies be used to subsidise an application by a private citizen, the real purpose of which is to protect his own interests? Mr Barnes's submissions offered no answer.

12. Mr Barnes's final contention was that the Court found that the decision to order the inquiry was attended by jurisdictional error, as he and the Director had submitted, and the Court's exercise of its discretion to refuse relief denying him success in the proceeding as a whole was based "significantly" on factors outside his control.

13. It is difficult to see why this matter is relevant to the question of what costs order should be made on the joinder application. In any event, it is not correct to say that the Court's decision to exercise its discretion to refuse relief was based significantly on factors outside Mr Barnes's control. The Court was not disposed to grant relief because the application to set aside the order to establish the inquiry was made very late, after the inquiry was well under way and by which time a considerable amount of money had been spent and important questions had been raised. It is true that the Court was particularly critical of the Director's delay, but Mr Barnes's application was made just as late. While the Director's dilatory behaviour is in a different category (for the reasons that we gave in our principal judgment), it was always open to Mr Barnes to make his own application and to do so within the statutory time limits.

14. The orders that the Court foreshadowed in its reasons of 22 May 2014 should be made.

(a) The Director pay the costs of Mr Eastman and the ACT.

(b) The Attorney pay his own costs.

(c) Mr Barnes pay the costs of his joinder application.

(d) Otherwise there be no order as to costs.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.