El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW

Submissions of the plaintiff

1. Counsel for the plaintiff accepted that I had power to award costs but submitted that the existence of such a power did not lead invariably to the conclusion that it should be exercised to make the orders which are now sought. Counsel acknowledged what he described as the "well known common law presumption" that costs ought follow the event. However he submitted that historically, in criminal proceedings, the principle was that the Crown neither paid nor received costs: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557 per Dawson J. It was submitted that both of the proceedings brought by the plaintiff were properly classified as part of the criminal process, such that no order for costs should be made.
2. It was further submitted that I should adopt the approach which has been followed by the Court of Criminal Appeal in proceedings brought pursuant to s. 5B of the Criminal Appeal Act 1912: see for example Robinson v Woolworths Limited [2005] NSWCCA 426; (2005) 64 NSWLR 612 per Basten JA at [58]. It was submitted that such approach was one which required the proper weight be afforded to the nature of the proceedings, whilst at the same time allowing for a costs order to be made in a case where special reasons warranted such a course being taken. It was submitted that in the present case there were no special reasons why any costs order should be made against the plaintiff and that the most appropriate way in which to dispose of the issue was simply to make no order as to costs.

Submissions of the CDPP

1. It was submitted on behalf of the CDPP that costs ought follow the event, absent the plaintiff being able to point to some factor(s) which warranted some other order being made. It was submitted that in all of the circumstances, the CDPP had a reasonable expectation that it be awarded its costs to compensate for the expense incurred as a consequence of the actions brought by the plaintiff.
2. It was pointed out that the plaintiff had conceded that the jurisdiction of the court to award costs extended to cases which stemmed from existing criminal proceedings. Whilst the CDPP took issue with the proposition that "special reasons" were required to be demonstrated before an award of costs could be made in its favour, it was submitted that such a threshold was met in the present case in any event.
3. It was submitted that the plaintiff had approached the proceedings in a fragmented way, in circumstances where it had been open to him to pursue the relevant issues in one single action. It was submitted that as a consequence of the plaintiff's decision to proceed in the way in which he ultimately did, additional unnecessary costs and delay were occasioned through no fault of the CDPP. It was submitted that on this basis alone there was justification for the orders sought.
4. It was submitted that the substance of the plaintiff's principal contention, namely that the CDPP was not empowered to prosecute offences against State legislation, had no merit, particularly in light of the decision in Dexter. It was further submitted that in bringing the two sets of proceedings, the plaintiff was seeking remedies which, even if granted, would have been of no practical utility. In particular, it was submitted that even if the plaintiff had been successful in obtaining one of the forms of relief sought, the practical effect would simply have been that one prosecuting authority (the Director of Public Prosecutions for NSW) would have been substituted for another (the CDPP).
5. In all of those circumstances, it was submitted that in each proceedings I should order that the plaintiff pay the costs of the first defendant, as agreed or assessed.
6. Finally, it should be noted that the CDPP raised for consideration the question of whether the circumstances of the present case warranted either an order for indemnity costs against the plaintiff or alternatively, an order that one or other (or perhaps both) of the plaintiff's counsel and solicitor pay the CDPP's costs personally. Ultimately however, the CDPP did not urge the making of either order.

Consideration

1. In my view, there are a number of factors which weigh in favour of an order for costs being made in favour of the CDPP in both proceedings.
2. To begin with, and fundamentally, each and every issue which was argued on behalf of the plaintiff in both proceedings was determined against him. That consideration supports an order for costs being made in favour of the CDPP: R v Madden (1995) 85 A Crim R 367 at 373 per Hunt CJ at CL.
3. Secondly, in the first proceedings I concluded (at [44]) that the Magistrate's determination did not constitute an "order" for the purposes of s. 53(3)(a) of the Appeal and Review Act and that relief was not available under that section was not available. I further determined (at [50]) that the error asserted by the plaintiff on the part of the Magistrate, even if established, was not error of a kind which supported the granting of relief pursuant to s. 69 of the SCA. It follows from those findings that the first proceedings failed at a fundamental level.
4. Thirdly, I accept the submission made on behalf of the CDPP that the plaintiff's fragmented approach caused unnecessary delay to be occasioned, and unnecessary costs to be incurred. If the plaintiff wished to seek declaratory and/or injunctive relief based upon what was said to be the proper construction of s. 6(1)(m) of the Act, a prayer for such relief could (and should) have been pleaded in the summons filed in the first proceedings. Approaching the matter in that way would have ensured that the entirety of the issues were determined to finality in the first instance. Such an approach would also have ensured that additional time and costs were not incurred.
5. Fourthly, the entirety of the first and second proceedings brought by the plaintiff lacked any practical utility. As I observed in my judgment in the first proceedings (at [36]) that even if it was determined that the CDPP had no power to prosecute the state offences alleged against the plaintiff, the Magistrate retained a discretion to adjourn the proceedings. The seriousness of the charges against the plaintiff are such that the Magistrate would have given careful consideration to the question of whether the proceedings ought be adjourned so as to allow the Director of Public Prosecutions for NSW to appear and take the matter over. Indeed, it is almost inconceivable that the Magistrate would not have adopted that approach, but would simply have discharged the plaintiff, in respect of a large number of serious offences, for want of a prosecutor.
6. Fifthly, and importantly, I raised this lack of utility in the first proceedings with counsel for the plaintiff. After counsel had articulated his general position, the following exchange took place (at T4 L8): HIS HONOUR: But he can be prosecuted by the State? LANGE: Presumably he may be. Maybe. HIS HONOUR: Right.
7. Counsel's response amounted, in effect, to a concession that even if the relief sought was granted the prosecution of the charges against the applicant could continue, albeit at the behest of a different prosecutorial authority. That does nothing more than highlight the fact that both proceedings lacked utility.
8. Finally, in determining the second proceedings I concluded that the decision in Dexter should be followed. In that case McMurdo P (with whom Jerrard JA agreed) had interpreted s. 6(1)(m) of the Act in a manner which was fundamentally contrary to the construction advanced on behalf of the plaintiff. Both parties agreed that her Honour's construction of the section formed part of the ratio of the Court's decision. Counsel for the plaintiff expressly accepted (at T14 L15) that the decision (in respect of which an application for special leave to appeal to the High Court was refused) was contrary to the position he sought to advance.
9. In my view, all of these factors overwhelmingly support the making of the orders sought by the CDPP.

ORDERS

1. For the reasons set out I make the following orders: 1. In proceedings 2015/11558, the plaintiff is to pay the costs of the first defendant as agreed or assessed. 2. In proceedings 2015/188030, the plaintiff is pay the costs of the first defendant as agreed or assessed.

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: 11 September 2015