Director of Public Prosecutions v Eseque

Supreme Court of NSW|2024-02-23|Before: Schmidt AJ

JUDGMENT

I gave judgment in this matter in December 2023, remitting it to the Local Court: Director of Public Prosecutions v Eseque [2023] NSWSC 1579. What was then in issue concerned the proper construction of the term "mobile phone" in the Road Rules 2014 (NSW). This judgment deals with a dispute about the costs of the proceedings and Ms Eseque's application for a certificate under s 6 of the Suitors' Fund Act 1951 (NSW), to which the Director consents.
Ms Eseque seeks a departure from the usual costs order under the Uniform Civil Procedure Rules 2005 (NSW), that costs follow the event: r 42. She relies on her claimed impecuniosity and the public interest nature of the appeal, which she contends should result in an order that there be no order as to costs. In the alternative, she seeks a certificate under the Suitors' Fund Act and a fixed costs order: r 42.4.

Issues

There was no issue about the Court's power to make such orders or the applicable principles: State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [61]-[68].

The parties' cases

Ms Eseque contended that it was relevant that she had not commenced these proceedings, being a person of limited means and ordinary standing, who became involved in an appeal pursued by the Director. It raised a serious lacuna in the caselaw, regarding the meaning of the undefined term "mobile phone" for the purpose of the Road Rules, which, in large part, were uniform rules standardised across the country.
These were the first proceedings before a superior court of record about such a question, one of real importance to the practical administration of those Rules. They had been entirely instigated by the Director, consistently with the public interest in the proper interpretation of r 30 of the Rules, to which Ms Eseque was a necessary party.
Public interest does not automatically warrant a departure from the usual costs order: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [90]. But here there were special circumstances. The Director's appeal sought to correct judicial error and was pursued to uphold the public interest and rule of law in a matter which had wide implications for the general public, given the number of road users throughout the country.
Ms Eseque submitted that the result of these proceedings was thus of significance to the community and road users nationally, as well as to the administration of criminal justice by the Local Court, day to day.
Ms Eseque also relied on the standard to be considered on an application such as this, discussed in Minister for Planning v Walker (No 2) [2008] NSWCA 334 at [6]. That required consideration of: "(a) The public interest served by the litigation; (b) Whether that interest is confined to a relatively small number of people in the immediate vicinity of a development, or whether the interest is wide; (c) Whether the applicant sought to enforce public law obligations; (d) Whether the prime motivation of the litigation is to uphold the public interest and the rule of law; (e) Whether the applicant has no pecuniary interest in the outcome of the proceedings."
Ms Eseque also argued that the large number of road users affected by the substance of the December judgment; the scope of the public interest which was protected by these proceedings; its significance to the community and road users and its undoubted impact on the administration of criminal justice, day to day, in Local Court cases involving the use of mobile phones in driving related offences, all supported the making of the orders she sought.
A further consideration was submitted to be the impediment posed to the proper administration of justice for litigants called on to answer such public interest matters, commenced by the Crown through the Director. Such litigants are fearful of having to meet large, adverse costs orders made against them in such proceedings.
The Court also has an interest in preventing the deterrence of adversarial litigation in public interest cases by litigants potentially being subjected to substantial costs orders when answering such cases brought by the Crown.
The Director opposed the costs orders Ms Eseque sought, relying on Director of Public Prosecutions v Zheng [2021] NSWSC 131. In that case, it was a provision of the Weapons Prohibition Act 1998 (NSW) which arose for construction. There, it was concluded that the appeal had no test case aspect, with the result that costs had to follow the event in the usual way: at [132].
Reliance was also placed on what was determined in Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35 at [55] in relation to the test case nature of what had there arisen for determination. This was a stated case which raised the interaction of sections of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The Court ordered the Authority to pay Mr Baldock's costs, given its considerable interest in the outcome, having sought to have the proceedings remitted, and considering that this highlighted the "test case" aspect of those proceedings, which he had little interest in: at [55].
The Director also observed that there was no evidence of Ms Eseque's claimed impecuniosity, which might justify a departure from the usual costs order. Further, given that the Director had indicated that costs would only be sought to be recovered up to the sum Ms Eseque receives under the certificate it was agreed she should receive, the effect of the usual order was the same as an order that the parties bear their own costs.
This was not challenged by Ms Eseque.

The certificate under the Suitors' Fund Act should made.

It has long been understood that "[t]he purpose of the Suitors' Fund is to mitigate the consequences of judicial error to litigants": Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [87].
A certificate under s 6 of this Act thus provides "a measure of compensation to the respondent to an appeal when an appeal is allowed through no fault of the respondent": Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [48].
I am satisfied that the certificate to which the Director consented should thus be issued by the Court, having taken into account the purpose of the Suitors' Fund Act and that Ms Eseque has satisfied the requirements of s 61.That the result of the Director's position about the recovery of costs is the same as an order that the parties bear their own costs, also supports the conclusion I have reached.
That necessitates attention being paid to what has long been recognised as required by the Act. Namely, protecting "litigants who, for no fault of their own, would otherwise suffer the burden of costs by reason of what are found to be legal errors of subordinate courts": Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 at 498. I also accept that it is relevant that here there is no suggestion that Ms Eseque played a role in the Local Court's errors, explained in the December 2023 judgment: Hollingsworth at [69].
But it must also be accepted that she had an obvious interest in defending the case the Director advanced, given that orders were sought remitting the matter to the Local Court, where a conviction and imposition of a fine was sought to be pursued against her.
In the result, I have concluded that the order agreed in respect of the certificate must be made.

What costs order should justly be made?

This also helps drive the conclusion that justice does not require the making of a fixed costs order, or any other departure from the usual order.
Given all that I have already explained in this and the December 2023 judgment, that there is a "test case" aspect to this appeal must be accepted. That conclusion flows from the use made of the term in issue, "mobile phone", both in the Road Transport Act 2013 (NSW) and the Rules.
But it also must be accepted that Ms Eseque does have a real interest in the resolution of what was in issue about the meaning of that term given that, if the Director succeeded, it was likely that the proceedings would be remitted for the Local Court to determine, according to law, whether the offence she was charged with had been proven.
That Ms Eseque is impecunious has also not been established on the evidence. Nor has any other basis for a departure from the usual costs order. In the result, I am satisfied that justice requires that the usual costs order be made.

Orders

For these reasons, I order that order 4 of the orders made on 15 December 2023 be varied, and an additional order be made, to provide: (4) Ms Eseque is to bear the Director's costs, as agreed or assessed; and (5) Ms Eseque is to be granted an indemnity certificate under s 6 of the Suitors' Fund Act.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2024

Suitors' Fund Act 1951(NSW)

Road Transport (Safety and Traffic Management) Act 1999(NSW)

(2019) 101 NSWLR 606

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