Glanville v NSW Police

Category: Costs

Parties: Thomas Owen Glanville (Plaintiff)
NSW Police (Defendant)

Representation: Counsel:
J Anderson (Plaintiff)
T Smartt (Defendant)
Solicitors:
The Law Office of Conrad Curry (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2025/00132846

Publication restriction: Nil

JUDGMENT

1. This judgment is about costs, but it also raises issues concerning the scope of the Model Litigant Policy. The plaintiff, Mr Glanville, had sought documents from the defendant, the “State of New South Wales - the New South Wales Police Force”, relating to a malicious prosecution action he was considering instituting. He eventually obtained the documents sought, but not until he filed a summons for preliminary discovery in this Court. He seeks indemnity costs from the defendant.

2. Underpinning the plaintiff’s application appears to be a clear frustration with the defendant’s unwillingness to deal with his request for documents informally. The defendant, however, contended that it was not appropriate to deal with this request informally, and it otherwise managed the plaintiff’s request for documents reasonably, and in accordance with the Model Litigant Policy.

3. Ultimately, as noted, the plaintiff filed a summons seeking an order pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) on 7 April 2025 for preliminary discovery of documents relating to criminal charges brought against him (on two separate occasions) and subsequently withdrawn. The documents sought were enumerated in a lengthy schedule to the summons. The charges appeared to have come about in the context of an acrimonious failed domestic relationship.

4. The summons was returnable on 13 May 2025, on which date it was adjourned by consent to 27 May 2025. On that occasion, the defendant sought and was granted a further adjournment to 17 June 2025. On the evening of 16 June 2025, the defendant’s solicitors wrote to the plaintiff’s solicitors advising that it was instructed to produce documents enumerated in several of the categories in the schedule to the summons; that the defendant had no documents to produce in other categories in the schedule; that it required the plaintiff to limit the period in respect of which documents were sought in two categories in the schedule; and that it would file and serve a List of Documents and supporting affidavit in due course.

5. The plaintiff contended that “in short, the defendant acceded to the plaintiff’s application for preliminary discovery. That application should not have been necessary”. Hence the plaintiff seeks costs to be assessed on an indemnity basis.

6. The plaintiff relied upon the affidavit of Thomas Carl Hunter‑Leahy sworn on 23 May 2025 and tendered the exhibits to that affidavit. The defendant relied upon the affidavit of Nadia Homen affirmed on 31 July 2025.

Background

7. To understand the basis of the plaintiff’s application, it is necessary to set out some further background.

8. Between 13 September 2024 and 24 March 2025, the plaintiff’s solicitors engaged in extensive correspondence with a solicitor within the Office of the General Counsel of NSW Police (OGC). The plaintiff’s solicitors requested the informal preliminary discovery of documents relevant to the laying, and subsequent withdrawal, of criminal charges against the plaintiff. It can be seen from that correspondence that the OGC:

9. refused the plaintiff’s solicitors’ request for informal preliminary discovery;

10. informed the plaintiff’s solicitors that the defendant would not produce documents unless the plaintiff made an application under the Government Information Public Access Act 2009 (NSW) (GIPA) stating:

“In order for your client as the applicant to obtain the information you have requested in your correspondence, under section 41(1) of the [GIPA], your client must make a formal application to the GIPA Unit and include the following [then set out various requirements]”

[Emphasis added];

1. requested the plaintiff’s solicitors to narrow the scope of the documents sought in the GIPA application that had been made;

2. refused to produce any documents in response to the amended GIPA application; and

3. maintained that the Model Litigant Policy was inapplicable.

4. By a letter dated 12 February 2025, the plaintiff’s solicitor wrote to the OGC contending that the Model Litigant Policy applied (sending a further copy of it, a previous copy having been sent on 17 October 2024). He also foreshadowed that the plaintiff would seek to recover his costs on an indemnity basis should he be required to make an application to a court.

Plaintiff’s submissions

10. The plaintiff submitted that the defendant having now “agreed” to provide discovery, the plaintiff is entitled to his costs of the application: r 42.1 UCPR. The costs, it is submitted, should be assessed on an indemnity basis, for the following reasons:

(a) The proceedings “should not have been necessary”. The defendant had “ample opportunity” to provide informal discovery as requested during the period September 2024 to March 2025. (b) The defendant had model litigant obligations, was reminded of them by the plaintiff, and failed to comply with them. The plaintiff relied upon Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 at [15] and [22]. (c) “At the defendant’s insistence” the plaintiff incurred the expense and delay associated with a GIPA application, in response to which the defendant refused to produce any documents. (d) The plaintiff “afforded the defendant a further opportunity to provide informal discovery and obviate the need for litigation on 12 February 2025.” The application for indemnity costs was foreshadowed “in the event that the defendant persisted in its objection”.

Defendant’s submissions

11. The defendant contended that costs in relation to preliminary discovery do not follow the general pattern and that the starting point is that the plaintiff should pay the costs of the defendant, citing Ainsworth & Anor v Stapleton Johnson & Partners [2020] NSWSC 252 at [21]. That authority stands for the proposition that the starting point may be varied in circumstances where the responding party takes, in effect, an adversarial approach. Even then, the responding party’s costs of complying with an order would likely be offset against any costs awarded.

12. The defendant claimed that the defendant was justified in refusing to provide the plaintiff with the documents he sought prior to the commencement of these proceedings by summons. This justification flowed from the following:

13. The defendant is under legal obligations under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) (in particular, by s 18) to protect “personal information” from disclosure. That term is defined broadly in s 4(1) as:

“[I]nformation or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion”.

2. The defendant contended that the categories of documents sought by the plaintiff captured a large amount of personal information, that being information or opinions about a complainant who alleged that the plaintiff committed domestic violence against her. It is submitted that given this legal obligation, it was inappropriate for the defendant to share this information as sought by the plaintiff merely because he requested it. An order from a court was required.

3. Separate to that legislative regime, the defendant contended there is a strong public interest in the documents created and received by the defendant in investigating an allegation of domestic violence remaining confidential, unless some good reason exists to the contrary. This would allow complainants to make allegations without constraint and to seek support from the NSW Police in responding to this kind of alleged crime. The defendant contended that it would be completely inappropriate for the NSW Police Force, merely at a person’s request, to release large swathes of documents relating to a complainant of domestic violence to the alleged perpetrator.

4. Further, the defendant contended that the plaintiff’s unsuccessful application for the documents sought under GIPA does not entitle him to a costs order as he never sought to appeal that refusal to the NSW Civil and Administrative Tribunal. Had he done so, s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that each party is to pay their own costs, except if the Tribunal is satisfied there are special circumstances.

5. The defendant further claimed that there was a confusion on the part of the plaintiff between the NSW Police Force with “the defendant”. The defendant submitted:

“They are not the same thing. The person who is responsible for the management and control of the NSW Police Force is the Commissioner of Police: see s 8 of the Police Act 1900 (NSW). [The plaintiff] has articulated no reason at all as to why the State of NSW as a whole should be subject to a costs order in this litigation for perceived failings of the Commissioner of Police prior to the commencement of this litigation.”

14. In addition, the defendant argued that “the State” had taken a cooperative approach in this litigation. The proceedings were commenced on 7 April 2025. “The State” never disputed Mr Glanville’s entitlement to preliminary discovery. It informed the plaintiff on 16 June 2025 that it was willing to produce a number of categories of documents, that it had nothing to produce in other categories and asked the plaintiff to clarify other categories. The defendant contended that the parties worked cooperatively to address the State’s concerns, with the plaintiff refining and clarifying some categories. It submitted that the State produced the material, in full, in response to the updated categories on 22 July 2025 (subject to its claims of privilege). That being so, preliminary discovery occurred within approximately three and a half months of commencement of these proceedings, without the need for a contested hearing.

15. The defendant claims that the plaintiff should pay the State’s costs of these proceedings.

Consideration

16. The Model Litigant Policy (which is set out in full as an annexure to this judgment) sets out the nature of the obligation inhering in a model litigant. It reads at paragraph 3.1:

“The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts.”

17. The Policy applies to both “civil claims” and “litigation” (see paragraph 1.2). To the extent that the OGC had stated to the plaintiff that it was not bound by the Policy because there was no “court case”, that contention was misconceived.

18. It can also be observed that the defendant’s attempt in this Court to distinguish between “the State” and “the NSW Police Force” for the purposes of this costs issue was inappropriate. Paragraphs 2.1 and 3.2 of the Policy make it clear, in terms, that the Policy applies to the “State and its agencies”. Further, s 6(2)(a) of the Police Act provides that one of the functions of the NSW Police Force is “to provide police services for New South Wales.” Given this, it would appear to be inappropriate to contend that the actions of the OGC, being the in-house counsel for the NSW Police Force, are somehow separate, and cannot be sheeted home to, the solicitors now acting for the defendant (described in the Summons as “State of New South Wales – NSW Police Force”).

19. These observations, however, are not finally determinative of the issue I have to decide.

20. It is important to note that the Policy is not at large. Even when it does apply, it has some parameters. After setting out appropriate conduct for a model litigant, the Policy concludes with two paragraphs which seek to delineate the limits of the policy. Paragraphs 3.3 and 3.4 are in the following terms:

“3.3 The State or an agency is not prevented from acting firmly and properly to protect its interests. The obligation does not prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made.

3.4 In particular, the obligation does not prevent the State or an agency from:

(a) enforcing costs orders or seeking to recover costs;

(b) relying on claims of legal professional privilege or other forms of privilege and claims for public interest immunity;

(c) pleading limitation periods (other than in child abuse actions);

(d) seeking security for costs;

(e) opposing unreasonable or oppressive claims or processes;

(f) requiring opposing litigants to comply with procedural obligations; or

(g) moving to strike out or otherwise oppose untenable claims or claims which are an abuse of process.”

[Emphasis added]

21. As noted, in my view, the OGC was wrong to state that the Policy did not apply, and made a further regrettable mistake when communicating with the plaintiff (which I will discuss further below). However, subject to that observation, the Policy did not require the OGC, in the circumstances, to have behaved differently.

22. As to the plaintiff’s submissions, I note that whilst there may have been “ample time” to provide “informal discovery”, given the nature of the material sought, except perhaps for a limited category of material (which would be difficult to untangle), informal discovery was not appropriate in the circumstances of this case, given it appears that much of the material was subject to protection under the PPIP Act (in particular, by s 18) to protect “personal information” from disclosure, absent a court order.

23. As to the correspondence from the OGC where it was stated that the plaintiff “must make a formal application to the GIPA Unit”, this is the mistake to which I referred above and was clearly incorrect and unfortunate. Whilst it is true that this was one option by which the plaintiff could attempt to obtain the material, it was not the only option. I am not satisfied, however, that the statement was deliberately wrong. Further, I also note that whilst the GIPA route was ultimately unsuccessful, I am not satisfied that the OGC knew from the start that such an application would be entirely futile, at least not in relation to all categories of items sought. In addition, as noted, no appeal was taken from the decision. Further, in an email dated 17 September 2024, the plaintiff’s solicitor indicated its awareness of the shortcomings of the GIPA route when he stated:

“Ordinarily, a GIPA application may be the most appropriate channel, but not in circumstances where the State is the prospective defendant”.

[Emphasis in original].

In that same email, the plaintiff’s solicitor also indicated he was contemplating a formal application by way of summons. The plaintiff’s solicitor thus appeared to have an appropriate understanding of the formal options available to him but also appeared to believe, as is apparent from other correspondence, that the OGC was obliged to deal with the matter in less formal way because of their obligations under the Policy.

24. I now turn to the question of costs, and note the Court’s discretionary power to order costs is conferred by s 98 of the Civil Procedure Act 2005 (NSW) (CPA).

25. It is convenient to set out the useful discussion of principles relating to costs in preliminary discovery applications by Campbell J in Ainsworth at [16]-[18] and [21]-[23]. In particular, at [21], Campbell J stated:

“There is a body of authority relating to applications for preliminary discovery to the effect that as such applications “are not ordinary adversarial proceedings, where the general rule is the unsuccessful party pays the costs of the successful party”. Rather, and generally, the applicant for preliminary discovery should be ordered to pay the costs of the party required to make the disclosure by the Court’s order: Totalise PLC v The Motley Fool Limited & Interactive Investor Limited, Court of Appeal for England and Wales, unreported 19 December 2001. The Court of Appeal recognised there were exceptions to that general approach. Simpson J […] considered this matter in Airways Corporation of New Zealand & Anor v The Present Partners of Price Waterhouse Coopers Legal & Anor [2002] NSWSC 521. Her Honour held that where the party required to make the disclosure had adopted an adversarial posture in the litigation, “the consequences of their making a judgement which turned out to be wrong are the same as such consequences for any other unsuccessful litigant”: at [11]. The costs, however, would not extend to the costs and expenses associated with the location and production of the information sought by the plaintiffs. Her Honour observed “plainly, those costs should not be [borne by] the defendants” (at [12]). The principles were also discussed by Ball J in Equiti Capital Limited v Hewson [2015] NSWSC 1388 at [14]-[16]: His Honour referred to the judgment Besanko J in Procter v Kalivis (No 3) [2010] FCA 1194 at [17]. Besanko J observed that the jurisdiction to make an order for preliminary discovery is extraordinary. His Honour, with respect, took a very similar view to Simpson J. Only where the responding party takes “an adversarial approach… it may be appropriate to order that it pay the costs caused by that adversarial approach”. Even then, those costs “would not necessarily include the costs of complying with an order for preliminary discover[y]”.”

26. In this case, the obligations of a model litigant also must be taken into consideration.

27. The first question then is whether the plaintiff should be awarded costs at all.

28. As noted above, I am of the opinion that the plaintiff’s fervent view that the documents should have been made available informally is misconceived. I agree with the defendant’s submissions that in the particular circumstances of this case, where the defendant is subject to privacy obligations, particularly in the context of sensitive domestic relationships, informal production of much of the material was simply not available. The position is not altered by the obligations under the Policy which are framed within certain parameters.

29. Another issue is whether, if costs were to be awarded to the plaintiff (which would already be an exception to the general rule applicable to preliminary discovery matters), they should be assessed on an indemnity basis. As Chen J stated in Sethi v The Owners – Strata Plan No 93392 (No 6) [2023] NSWSC 1368 at [85]-[86]:

“The Court has power to order indemnity costs: s 98(1)(c) of the CPA.

The starting point is an acknowledgment of the ordinary rule and the exception to it: namely, that the costs that are payable are on the ordinary basis and that the circumstances of a particular case must be such “as to warrant the Court in departing from the usual course”: Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, 233; [1993] FCA 801 ('Colgate Palmolive'). In this latter respect, what is needed is that “there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice”: Colgate Palmolive at 233. That feature is not confined to, although it may include, an “ethically or morally delinquent party” (Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412, 415; [1992] FCA 194) That is, the Court "requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 616. The “unreasonable conduct” must be “conduct in the proceedings of the party against whom the order is sought”: Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6].”

30. There are a number of competing considerations in this matter, some of which pull in different directions.

31. Whilst not deliberately “adversarial”, on one view, the defendant’s erroneous statement that the plaintiff “must” (rather than “may”) make a GIPA application, with the added imprimatur of that statement coming from a State agency, especially when combined with the defendant’s model litigant obligations (ultimately potentially resulting in some additional costs for the plaintiff) may be sufficient to take the matter outside of the general rule to make costs payable on the ordinary basis. I am not of the view that indemnity costs would be payable. In my opinion, the defendant’s conduct does not rise to the level of “unreasonable” conduct in the sense reflected in the authorities dealing with indemnity costs.

32. However, when considering whether costs on the ordinary basis should be payable to the plaintiff, it can also be observed that the defendant has incurred its own costs in the location and production of the information sought by the plaintiff, which appears to have been quite an extensive exercise. Ordinarily, the costs incurred by the defendant in sourcing and producing the material sought would be paid by the plaintiff.

33. I note that when the summons was finally filed, the defendant produced documents in a reasonably timely fashion, albeit I note that some of the communication with the plaintiff was regrettably after business hours on the evening before directions hearings.

34. This is a particularly difficult discretionary exercise. Underpinning this application is the plaintiff’s continuing misconception that the defendant should have supplied all the material sought “informally” because of its model litigant obligations and thus he should be entitled to costs on an indemnity basis. On the other hand, ordinarily, the defendant would be entitled to receive its costs associated with the location and production of the information sought by the plaintiff. This exercise was not a small one. However, the plaintiff, having been misled by the defendant and being informed that it “must” make a GIPA application, incurred costs it may otherwise not have incurred.

35. Having considered all the competing considerations, in my view, the appropriate order is for the parties to bear their own costs of the summons.

Orders

36. Accordingly, I make the following order:

37. Each party is to bear their own costs of the summons.

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Annexure - Model Litigant Policy for Civil Litigation (1.59 MB, pdf)