Doyle v Commissioner of Police

Procedural background

1. A search warrant was executed on premises owned by Mr Doyle and occupied by Mr Barbeliuk on 27 August 2018. Numerous items were seized, including "item 24" which was a personal computer owned by Mr Barbeliuk.
2. On 30 August 2018, Mr Doyle by ex parte application obtained interim orders from the Common Law Division of this Court preventing the police from accessing or viewing material seized pursuant to the warrant. That injunctive relief, in slightly modified form, continued thereafter until earlier this year.
3. There were two presently significant steps taken between 30 August 2018 and the commencement of the trial on 29 April 2019. 1. First, on 2 April 2019, Mr Barbeliuk was joined as a plaintiff. 2. Secondly, also in April 2019, the parties reached agreement in principle resolving claims of legal professional privilege, and that matter was ultimately resolved without requiring adjudication. This is apt to have contributed to the delay in the matter being listed for trial, and to have given rise to significant costs.
4. Commencing on 29 April 2019 and thereafter continuing on 30 April, 28-29 May and 22 July 2019, the trial was heard before the primary judge.
5. On the afternoon of 29 April 2019, the first day, an application was made for leave to amend the summons to challenge the warrant, the application for it and the decision to issue it. The police officer who requested the warrant (Detective Senior Constable O'Neill) and the eligible officer who granted it (Deputy Registrar D'Arcy) were, for the first time, joined to the litigation. A second further amended summons was filed on 8 May 2019, in the period before the trial resumed at the end of May.
6. The principal relief sought in the final iteration of the summons was twofold: 1. declarations that the warrant was invalid and orders quashing it; and 2. orders for the delivery up or destruction of the items seized and all copies.
7. By judgment delivered on 13 December 2019, the primary judge rejected the challenge to the warrant, and rejected the entirety of the plaintiffs' claims. Her Honour granted further interlocutory relief pending appeal.
8. This Court heard an urgent appeal on 5 February 2020 and delivered judgment on 14 February 2020. The urgency was occasioned by an imminent further prosecution of Mr Doyle which was then expected to be heard in the District Court the following month. This Court allowed the appeal on the principal basis advanced, namely, that the warrant was invalid for non-compliance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and declined - for reasons given at [77]-[80] - to determine the other submissions.
9. This Court also rejected the appellants' submission that the invalidity of the search warrant entitled the appellants to the return of all items seized and destruction of all copies as of right. Instead, this Court made directions for there to be a further hearing for the exercise of discretion in relation to the relief sought by the applicants.
10. Thereafter, the proceedings in this Court have given rise to three decisions by me, and an unsuccessful application for special leave to appeal to the High Court of Australia. It is not necessary for present purposes to summarise that most recent history. It is sufficient to state that the debate in this Court has been substantially confined to item 24, Mr Barbeliuk's computer, and has not concerned Mr Doyle. In all of the applications which have been made to this Court subsequent to the principal decision of 14 February 2020, Mr Barbeliuk has been wholly unsuccessful.

Parties' submissions and their resolution

1. The "usual order as to costs", now found in UCPR r 42.1, is that costs follow the event. The underlying principle is articulated in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67]. But in a case like the present, there is difficulty in identifying a single "event" by which a favourable costs order is to be determined. The difficulties arise on a number of levels. As the Commissioner submits, the ultimate orders which were sought were orders for the return or destruction of the items seized. No such orders were made. On the other hand, as the applicants submit, an important aspect of the litigation was the challenge to the warrant, and the applicants have succeeded on that issue. That success engages the potential under s 138 of the Evidence Act 1995 (NSW) for the exclusion at any criminal trial of evidence unlawfully or improperly obtained. It is difficult, of course, to ascribe value to that benefit, and whether or not the application would succeed cannot be determined in the abstract. But I would readily accept that the benefit is real.

A broad-brush proportionate approach?

1. Of course, cases where litigants have enjoyed partial success are not uncommon. In many such cases, there is much to be said in favour of a broad-brush proportionate order as to costs, awarding the more successful litigant a proportion of his, her or its costs, in accordance with what was said in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219. Such an approach carries with it the advantages of simplifying and reducing the scope for further disputation concerning the quantification of the successful party's costs, and recognises that precision in the exercise is illusory: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36].
2. The applicants implicitly seek such an approach. The Commissioner identifies that approach as one which is available. However, the Commissioner also accepts the practicability of an exercise of discretion which "divide[s] the proceedings into different periods and determine[s] the successes achieved in respect of those periods". The Commissioner's submissions are neutral between taking an overall approach and dividing the litigation into periods.
3. I do not think the broad-brush overall approach is available, and if I am wrong about that, I do not think it is appropriate. I am of that view in relation to both the costs at first instance and on appeal.
4. My main reason is based on the change in parties. Of course, the litigation has at all times been bilateral, and there has only ever been one set of costs on each side of the litigation. Nothing turns on the fact that the solicitors now acting for the first and second respondents only acted for the first respondent for the first eight months of the proceedings. Nor does anything turn on the fact that two firms of solicitors, who in turn instructed three senior counsel in succession have acted for the applicants. But I cannot overlook the fact that from 30 August 2018 until 2 April 2019, Mr Barbeliuk was not a party to the proceedings at first instance. Nor can I overlook the fact that the proceedings in the Court of Appeal after the principal judgment given on 14 February 2020 were directed exclusively, or almost exclusively, to item 24, and were conducted for the exclusive benefit of Mr Barbeliuk. Mr Doyle was serving a period of imprisonment throughout the entirety of this time, and Mr Barbeliuk's computer was purchased after Mr Doyle had commenced serving that sentence.
5. It seems to me that it would not be right in principle to seek to balance costs of the trial (when the validity of the warrant was in issue) incurred on behalf of Mr Doyle and Mr Barbeliuk, against pre-trial costs incurred solely on behalf of Mr Doyle (who was the sole plaintiff at that time). Nor would it be right in principle to seek to balance costs of the principal appeal, in which Messrs Doyle and Barbeliuk obtained some partial success, against costs of the subsequent proceedings, which were conducted solely in the interests of Mr Barbeliuk (even though Mr Doyle remained a party), as to which Mr Barbeliuk was wholly unsuccessful.
6. Ultimately costs are enforced against individual litigants. Insofar as Mr Doyle enjoyed some partial success on appeal, it would be wrong for a favourable costs order reflective of that success to be diluted by Mr Barbeliuk's lack of success in later stages of the litigation, in respect of which Mr Doyle had no interest. Insofar as Mr Barbeliuk should have achieved some partial success at trial once the proceedings were properly constituted to challenge the warrant, it would be wrong for a favourable costs order reflective of that success to be diluted by the steps taken by Mr Doyle earlier in the proceedings, at a time when Mr Barbeliuk was not even a party.
7. Further, I have no evidentiary basis whatsoever for assessing the pre-trial costs as opposed to the costs of trial. Nor do I have any evidence as to the costs of preparing for and hearing the principal appeal, as opposed to the costs of the subsequent steps in this Court.
8. For those reasons, I conclude that the exercise of the discretion as to costs in relation to this litigation lends itself to division into discrete stages, by reference to (a) the parties who were joined or in whose interest the proceedings were prosecuted, and (b) the issues that are raised. That makes the costs orders more complicated to formulate. However, different costs orders based on different time periods is unlikely of itself to present a great difficulty in quantification. Ordinarily legal practitioners incur and bill costs on a day to day basis.

Costs in the Court of Appeal

1. In the Court of Appeal, it is appropriate to draw a line at 14 February 2020. Prior to 14 February 2020, Mr Doyle and Mr Barbeliuk were successful appellants on the principal issue agitated in this Court, although they did not obtain the injunctive remedies they had ultimately sought. Each obtained the benefit of a determination that the warrant executed on 27 August 2018 was invalid.
2. Subsequent to 14 February 2020, the only item which has been the subject of substantial dispute in this Court has been item 24. That concerns Mr Barbeliuk and Mr Barbeliuk alone, the evidence being clear that the computer was purchased by him after the commencement of Mr Doyle's term of imprisonment. In the applications which have led to the second, third and fourth decisions of the Court constituted by me, Mr Barbeliuk has been wholly unsuccessful. He should pay the entirety of the Commissioner's costs of those applications.
3. The lack of success in relation to injunctive, as opposed to declaratory, orders was also reflected in a small aspect of the principal appeal. Senior counsel then appearing for Mr Doyle and Mr Barbeliuk maintained an entitlement to the return of items seized and destruction of copies, as of right, if the warrant were held invalid. However, I do not accept the Commissioner's submission that the Commissioner had "the distinctly greater share of success". I prefer the applicants' characterisation that their success on appeal was "substantial", and their proper acknowledgement that their failure to obtain consequential relief was "an important matter".
4. In respect of the costs in the proceedings of the Court of Appeal up to and including 14 February 2020, a proportionate approach is preferable. Taking that broad-brush approach, and accepting that the exercise of discretion is somewhat impressionistic, I have concluded that the appropriate exercise of discretion is that the Commissioner pay 80% of Mr Doyle's and Mr Barbeliuk's costs of the appeal incurred on or before 14 February 2020.
5. Mr Barbeliuk must pay the Commissioner's costs of the appeal incurred on or after 15 February 2020. For the reasons which will be given below, I would carve out from that latter order the costs of this application for costs.

Costs in the Common Law Division

1. The re-exercise of the discretion as to costs at first instance is more complicated. Further, I can only do the best I can on the basis of the record as presented by the parties. I have not sought to go behind what has been summarised in the parties' submissions.
2. The significant aspects, as I see them, are as follows: 1. At first instance, Mr Barbeliuk was only joined on 2 April 2019, and only on 29 April 2019 was an application for leave to amend the summons to challenge the warrant first made. 2. The Commissioner was incurring expense throughout this period prior to trial, on issues formulated by the plaintiffs, as to which he succeeded. 3. Prior to the joinder of the second and third defendants, the proceedings were not properly constituted so as to permit the validity of the warrant to be impugned. 4. At the trial, a number of claims were pursued in addition to the challenge to the validity of the warrant. 5. Insofar as costs were incurred dealing with privileged documents, which were resolved consensually, those costs should be excluded from a costs order.
3. Precision is illusory, and it is important not to become artificially precise in such a way as will create unnecessary difficulties in quantification. During the period from 2 April (when Mr Barbeliuk was joined) and 29 April (when the trial begain) a deal of the costs would have been directed to the question of privileged documents, and some would have contributed to the amendments propounded at the first day of the trial, which is the source of such success as Mr Doyle and Mr Barbeliuk ultimately achieved. I think that in applying a broadbrush approach, one should divide the proceedings in the Common Law Division into two periods (pre- and post- 2 April), rather than three.(pre 2 April, 2-29 April, and post 29 April).
4. The appropriate order as to costs is that Mr Doyle and Mr Barbeliuk obtain a proportion of their costs incurred on or after 2 April 2019, reflective of the success in challenging the warrant which they should (in light of the decision of this Court) have achieved, and that Mr Doyle pay the Commissioner's costs prior to 2 April 2019, in each case, subject to a carve-out excluding costs attributable to the privilege dispute.
5. In light of the other issues raised at trial, as to which they were unsuccessful, and bearing in mind that the period after 2 April 2019 includes 4 weeks prior to the joinder of the second and third defendants, I would order that the Commissioner pay 60% of Mr Doyle's and Mr Barbeliuk's costs at first instance incurred on or after 2 April 2019.

Costs of this application for costs

1. The exercise of discretion as to costs which I favour falls somewhere between the positions advocated by the parties in their written submissions. It is appropriate that there be no order as to the costs of the production of those written submissions.

Orders

1. Accordingly, the orders are as follows:
2. Order that the Commissioner pay 80% of Mr Doyle's and Mr Barbeliuk's costs in the Court of Appeal, incurred on or before 14 February 2020.
3. Order that Mr Barbeliuk pay the Commissioner's costs incurred after 14 February 2020, exclusive of the costs of the present application for costs.
4. Order that Mr Doyle pay the Commissioner's costs of the proceedings incurred before 2 April 2019, excluding any costs attributable to the claims for privilege over documents seized.
5. Order that the Commissioner pay 60% of Mr Doyle's and Mr Barbeliuk's costs at first instance incurred on or after 2 April 2019, exclusive of the costs of the present application for costs, and excluding any costs attributable to the claims for privilege over documents seized.
6. There be no order as to the costs of the present application for costs, or the costs attributable to the claims for privilege over documents seized, on the basis that the parties bear their own costs.

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: 18 December 2020