Patsalis v State of New South Wales

Judgment 1On 23 March 2012 I published my reasons for dismissing Mr Patsalis' amended summons (Patsalis v State of New South Wales [2012] NSWSC 267). I foreshadowed making an order for costs in favour of the defendant, but made directions enabling the parties to make submissions in writing on the question of costs. On 29 March 2012 Mr Patsalis provided written submissions in accordance with my directions. On 2 April 2012 the defendant provided written submissions. Mr Patsalis filed submissions in reply. 2A large part of Mr Patsalis' submissions and submissions in reply consisted of an attack upon the conduct of counsel for the defendant in resisting Mr Patsalis' application for an adjournment to adduce further evidence (see Patsalis v State of New South Wales [2012] NSWSC 267at [76] to [77]). I will not set out the details of that complaint because, subject to the matter considered in the next paragraph, they are irrelevant to the question of costs. They seem to be an attempt to reagitate that application. The attack is also completely unwarranted. Counsel for the defendant was entitled to resist the application. I have previously noted the assistance counsel for the defendant gave to the Court and indirectly to Mr Patsalis in my earlier judgment at [54]. 3I will address one aspect of Mr Pataslis' complaint as it may be relevant to so much of the costs as concerns the challenge to the validity of paragraphs 9(a) to 9(d) of the Operations Procedures Manual utilised by Corrective Services New South Wales. In [6] of his submissions in reply Mr Patsalis contended: "The second part of the Plaintiff's claim, although it related to the legal validity of paragraphs 9.3.1.1 and 9.3.3 of the Operations Procedures Manual, it also directly related to the level of access which the Plaintiff was being given access to his legal documents ... and directly related to the question being determined by the Court of Appeal and thus which was precluded from being litigated in these proceedings by her Honours order, namely the Honourable Mrs Justice Schmidt in her Honour's unreported judgement [referred to at [8] of my earlier judgement] ...(Why is it that [counsel for the defendant] mislead this Honourable Court by contending that this Honourable Court was not precluded from hearing the validity of paragraphs 9.3.1.1 and 9.3.3. ......)". 4This submission misstates what occurred at the hearing. At the commencement of the hearing I sought to clarify with Mr Patsalis what part of his amended summons he was pressing. He initially nominated part of Prayer 1 and indicated that "paragraphs 8 and paragraphs 9 to 9(d)" were "before the Court of Appeal at this moment". Later counsel for the defendant indicated that he was considering whether to tender the Operations Procedures Manual referred to in paragraph 9(a) of the amended summons. He stated: "I understood from what Mr Patsalis said that those paragraphs are no longer pressed. If they are not, I have nothing more to tender, if they are pressed, I have a copy of the Manual." 5The Court then queried with Mr Patsalis whether he accepted that those paragraphs were matters he was seeking to agitate in the Court of Appeal. Mr Pataslis stated that he pressed those paragraphs and he did not object to the defendant's tender. The following exchange occurred: "HIS HONOUR: Could you go to it [the amended summons], please, and I ask you to look at paragraph 8. PLAINTIFF: Yes, I am looking at that now, your Honour. HIS HONOUR: I think, is this right, you accept that that part, paragraph 8, is what you're agitating in the Court of Appeal, is that right? PLAINTIFF: Correct, your Honour. HIS HONOUR: And that you don't have leave to pursue that now? PLAINTIFF: Correct, your Honour. HIS HONOUR: But are you saying you do want to challenge 9A to 9D [ie 9(a) to [9(d)]? Sorry, you want to maintain what you have said right now in this case in 9A to 9D? PLAINTIFF: Yes, your Honour, but I wouldn't be able to provide your Honour with submissions on that today, but I do wish to pursue that, yes." 6The balance of the hearing then continued with Mr Patsalis addressing 9(a) to 9(d) of the amended summons. 7The decision to "press" paragraphs 9(a) to 9(d) of the amended summons was made by Mr Patsalis. He proceeded on the basis that the Court could hear it notwithstanding the order made by Schmidt J on 26 July 2011. It appears that he now wants to resile from that position. The fact that the Court proceeded to address it was because he pressed it and not as a result of any submission, misleading or otherwise, made by counsel for the defendant. 8Mr Patsalis also makes similar complaints about the conduct of counsel concerning the hearing of the motion before Schmidt J in December 2011 referred to in my earlier judgment at [11]. Again the complaints seem to me to be irrelevant, unwarranted and an attempt to reagitate aspects of that motion. Further, I note that on 27 January 2012 Schmidt J made a limited costs order in favour of Mr Patsalis in relation to that motion. The order that I make will not disturb that order and will exclude the defendant from recovering its costs of that motion. 9Mr Patsalis had also requested that I defer making a costs order because of his complaint about counsel's conduct and the fact that he is preparing an application for leave to appeal. I have addressed the former. The latter is no reason not to make a costs order in this matter. Any further fragmentation of Mr Patsalis' proceedings should be avoided. 10In seeking to resist a costs order Mr Patsalis points to the allegedly disproportionate amount spent by the State in resisting his proceedings in that it was represented by counsel and solicitors compared with the amount he spent. He also cites his impecuniosity. An allegation that the State expended disproportionate costs in defending the proceedings is a matter that can be considered via the assessment system. The defendant was not only entitled to be legally represented, it is expected to be, so that it can provide assistance to the Court. The discretion that I am conferred with in relation to costs does not enable me to take into account Mr Patsalis' impecuniosity in the circumstances of this case. 11The defendant's submissions drew my attention to the comments of Burchett AJ in McCallum v Commissioner of Corrective Services [2002] NSWSC 497; (2002) 129 A Crim R 590 at [13] where his Honour stated: "The application must be dismissed. The defendant asks the Court to dismiss it with costs. That is a matter of discretion. It would not be appropriate to place the obstacle of the threat of a costs order in the way of any reasonable attempt by a prisoner to have the Court ensure the legality of significant action taken by the Commissioner. Not uncommonly, an application such as this, if dismissed, is dismissed with no order as to costs. Having regard to the earlier proceeding before Sully J, the present case is perhaps near the line, and the plaintiff should be aware of that, but I do not think the stage has been reached where I should make a costs order. The application is dismissed with no order as to costs." 12The defendant also referred me to the comments of Kellam J in Knight v Secretary to the Department of Justice (Re Costs) [2004] VSC 29 at [16] to [17]. In these passages his Honour explains that Burchett AJ's comments in McCallum do not create a special costs principle or exception for prisoners. Rather, Burchett AJ was merely exercising the Court's general discretion as to costs. 13In his submissions in reply Mr Patsalis relied on the observations of Burchett AJ in MacCallum. He contended the matters he litigated did not lack substance or merit, they concerned matters of significant public interest and pointed to his "objectives in pursuing them". 14The claim by Mr Patsalis for orders requiring that he be provided with a one out cell was so lacking in merit that I do not consider that any reliance can be placed on Burchett AJ's comments in McCallum. The case he mounted in relation to the Operations Procedures Manual was of more substance and he at least secured some clarification of the manner in which it operates. Such clarification may be of benefit to him and other prisoners (see my earlier judgment at [82] to [85]). However, that part of the case occupied substantially less hearing and submission time than that part of the case that concerned the claim for a one out cell. I will allow some discount on the costs order to reflect what Mr Patsalis achieved in relation to the Operations Procedures Manual.