State of New South Wales v Church

THE PRESENT APPLICATION

1. Before the Court for determination is an amended notice of motion filed by the defendant on 20 July 2021 which seeks the following order: Pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules (NSW), the plaintiff pay the defendant's costs of the proceedings as agreed or assessed.
2. The motion is supported by an affidavit of Olivia Freeman dated 1 July 2021 that was read without objection. That affidavit forms part of Exhibit A.

THE PREVIOUS JUDGMENTS

1. In light of some of the submissions made by the parties, it is necessary to refer to aspects of the preliminary judgment and the final judgment.

The preliminary judgment

1. At the preliminary hearing, the plaintiff relied upon a risk assessment of Tamara Sweller dated 28 January 2021. [6] In addressing that assessment in the course of the preliminary judgment, Campbell J observed: [7] Mr Church chose not to participate in Dr Sweller's assessment notwithstanding that he was given the opportunity. From the contents of her report, Mr Church's non-participation made it difficult for her to determine whether the assessments she made on the basis of the extensive material she was asked to consider had been ameliorated by changes in his attitude and behaviour since his release into custody or by reference to his explanation for attitudes he seemed to hold having regard to the extensive material.
2. Whilst noting [8] Dr Sweller's observation that there may have been relevant information which had not been made available to her, his Honour concluded that in light of the fact that the defendant had chosen not to participate in the assessment, it was difficult "to do other than take Dr Sweller's assessment at face value". [9]
3. In considering whether the evidence relied upon by the plaintiff would justify the making of an ESO, and in particular whether that evidence supported a finding, to a high degree of probability, that the defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, his Honour noted: [10]
4. I am required only to assess what the matters alleged are capable of proving if those matters are established at the final hearing. I am not concerned with the weight due to, or the persuasiveness of the matters alleged.

The final judgment

1. Pursuant to orders made in the preliminary judgment, the defendant was examined by Dr Eagle on 22 April 2021 (who provided a report of 3 May 2021) [11] and by Dr Seidler on 26 April 2021 (who also provided a report of the same date). [12] Both of those reports formed part of the evidence before Campbell J at the final hearing.
2. In the course of the final judgment, his Honour said: [13] I have rejected Dr Sweller's opinion because I prefer the opinions of the court appointed experts, Dr Eagle and Dr Seidler, of which I now have the benefit. I accept [senior counsel for the defendant's] submission that Dr Sweller's opinions are deprived of the probative value they might otherwise be afforded by her assumption that there had been no positive changes in Mr Church since his conviction for the index offending. In fairness, Dr Sweller took that approach because Mr Church declined to co-operate with her assessment, refused to be interviewed and she was left in the position of having to undertake a "desktop" assessment on the papers.
3. In reaching this conclusion, his Honour took into account those aspects of Dr Eagle's opinions [14] in which she had addressed some of the matters to which the defendant's solicitor had specifically referred in her correspondence of 9 June 2021 in support of the submission that the proceedings should be discontinued. His Honour also took into account the opinions of Dr Seidler. [15]
4. In concluding that he could not be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence if not subject to an ESO, his Honour said: [16] What is clear is that neither court appointed expert embraced the formulation of risk I found the State's documentation capable of proving for the purposes of my preliminary judgment. I feel compelled to forsake it.

THE RELEVANT STATUTORY PROVISIONS

1. Before considering the submissions of the parties, it is appropriate to set out a number of relevant statutory provisions.
2. To begin with, s 42 of the Legal Aid Commission Act 1979 (NSW) (the LAC Act) is in the following terms: 42 Discretion of court or tribunal as to costs A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.
3. There is no dispute in the present case that the defendant was represented, at both the preliminary hearing and the final hearing, by senior counsel retained by a solicitor employed by the Legal Aid Commission. Section 42 of the LAC Act makes it clear that this, of itself, has no bearing on the making of any order for costs in the defendant's favour. In this regard, I note that in State of New South Wales v Simcock (Final) [17] Wilson J, in addressing the question of costs, said: Since this application was properly brought before the Court for its consideration, and both parties are funded by the State, I do not propose to make any order for costs (my emphasis).
4. In my view, and with respect to her Honour, the italicised passage of that part of her Honour's judgment runs contrary to the provisions of s 50 of the LAC Act. The gravamen of those provisions is that, in exercising any discretion it may have in respect of costs, the Court must disregard the fact that a party is legally aided. [18] I hasten to add that it is apparent that her Honour's observations in Simcock were made without the benefit of s 50 being drawn to her attention.
5. Section 55 of the Act precludes an order for costs being made against the defendant by providing as follows: 55 Costs not to be awarded against offender An order for costs may not be made against an eligible offender in relation to any proceedings under this Act (including proceedings on an appeal under this Act).
6. Importantly, proceedings under the Act are civil proceedings. So much is clear from s 50(1) of the Act which is in the following terms: 50 Nature and conduct of proceedings (1) Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.
7. Parts 3 to 9 of the Civil Procedure Act 2005 (NSW) (the CPA) apply to all civil proceedings in this Court. [19] Section 98 of the CPA (which is contained within Part Division 2 of Part 7) is in (inter alia) the following terms: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act-- (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to-- (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount.
8. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules) provides as follows: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
9. Rule 42.7 is in the following terms: 42.7 Interlocutory applications and reserved costs (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including - (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.
10. There can be no doubt, in light of these various provisions, that leaving aside the limitation imposed by s 55, this Court has the discretionary power to order costs in proceedings brought pursuant to the Act. That power has been exercised by Judges of this Court on a number of occasions, [20] albeit in the absence of having to consider the precise question which arises before me in this case.

Submissions of the defendant

1. Senior counsel for the defendant commenced by emphasising firstly, the general principle in r 42.1 that costs follow the event, and secondly, the provisions of r 42.7 which make it clear that absent the court ordering otherwise, the costs of any application made, or step taken, in the proceedings are to be dealt with in the same way. Bearing in mind those provisions, senior counsel submitted that in these proceedings: 1. the relevant "event" for the purposes of r 42.1 was the order made by Campbell J dismissing the application for an ESO; and 2. in circumstances where no order for costs had been sought or made in respect of the preliminary hearing, the costs of that hearing should be dealt with in the same way as the costs of the proceedings, there being no basis upon which the Court should exercise the discretion to "order otherwise" under r 42.7.
2. Senior counsel submitted that the structure of the Act is such that from a defendant's point of view, and in light of the interrelated issues between a preliminary hearing and a final hearing, the vast majority of preparatory work is required to be undertaken for the purposes of the former, with a comparatively small amount of additional preparation being required for the purposes of the latter. It was submitted that to deprive the present defendant of the costs of the preliminary hearing in such circumstances would be tantamount to unfairly depriving him of the costs of the "event" in respect of which he had been successful.
3. Senior counsel further submitted that although Campbell J had not been asked, at the conclusion of the preliminary hearing, to make any order for costs, it was nevertheless instructive to consider the practice of awarding costs in relation to interlocutory applications generally. In this regard, it was submitted, in particular, that: 1. the need for the interim hearing was entirely matter within the plaintiff's control and was a "step along the way" to seeking an ESO which was ultimately unsuccessful; 2. an ISO is not a necessary prerequisite to an ESO; and 3. Campbell J, in the course of the preliminary judgment, had excluded or modified a number of the conditions which had been sought by the plaintiff.
4. In all of these circumstances, it was submitted that the general principles embodied in rr 42.1 and 42.7 of the rules should apply, and that an order should be made in favour of the defendant for the costs of the entirety of the proceedings, including the costs of the preliminary hearing, as agreed or assessed.

Submissions of the plaintiff

1. The plaintiff's position on the notice of motion was helpfully summarised by senior counsel as follows: [21] 1. the proceedings brought by the plaintiff against the defendant were "civil proceedings"; 2. the provisions of s 98 of the CPA, and r 42.1 of the rules apply in determining the appropriate order for costs; 3. it is open to conclude that a preliminary hearing under the Act is an "interlocutory application", such that r 42.7 of the rules also applies in determining the appropriate order for costs; 4. notwithstanding the provisions of rr 42.1 and 42.7, the Court retains a discretion to make some other order in respect of costs, having regard to the particular circumstances of a given case; 5. there is no reason why the plaintiff should not be ordered to pay the defendant's costs of the proceedings which were incurred after the date of the preliminary judgment; and 6. in the exercise of my discretion, I should not extend any order for costs to encompass the defendant's costs of the preliminary hearing.
2. As to (vi), senior counsel made it clear [22] that he was not suggesting that a defendant against whom an ISO (or similar order) was made following a preliminary hearing, but who was ultimately successful following a final hearing, could never succeed in obtaining an order for the entirety of his or her costs. Rather, it was senior counsel's submission that in the circumstances of the present case, I should exercise my discretion in a way that limited any award of costs to those incurred after the date of the preliminary judgment. Senior counsel relied upon a number of factors in support of that submission.
3. To begin with, senior counsel submitted that the Act imposed an obligation on the plaintiff to bring proceedings where there was a prima facie case that an offender posed the relevant unacceptable risk. It was submitted that the proceedings against the defendant involved an issue of public importance, and had been brought by the plaintiff in good faith to further the primary object set out in s 3(1) of the Act which is directed towards the safety and protection of the community. In circumstances where there was no suggestion that the plaintiff had acted unreasonably in bringing in the proceedings, senior counsel submitted that a combination of all of these factors weighed against making the order sought by the defendant, and in favour of an order that each party pay its own costs associated with the preliminary hearing.
4. Senior counsel further submitted that the defendant's contention that he should not be deprived of the costs associated with the preliminary hearing was to be viewed in circumstances where he was not "out of pocket" in respect of any such costs, and where the plaintiff was not claiming its own costs in respect of the preliminary hearing.
5. Senior counsel emphasised what he submitted was the significance of the defendant's decision not to participate in the assessment undertaken by Dr Sweller. Senior counsel pointed out that Dr Sweller's assessment that the defendant fell within the moderate to high range of risk of engaging in violent extremist behaviour had been made in the absence of any clinical evaluation of the defendant, but that the defendant had been obligated to, and thus did, participate in the assessments conducted by Dr Eagle and Dr Seidler. It was submitted that all of these circumstances had combined to bring about a "significant evidentiary shift" in the expert evidence which was available at the preliminary hearing, when compared to that which was available at the final hearing, and that this supported the making of any order in favour of the defendant which was limited to the costs of the latter.
6. Finally, senior counsel submitted that the position he had advanced was consistent with the decision of Ierace J in Lynn, as well as that of Button J in Guider. I should say that I have found those decisions of limited assistance, for the simple reason that, as I have noted, neither required a consideration of the precise question which arises before me.

Consideration

1. In considering the competing submissions, the starting point is that the defendant, as the ultimately successful party in the proceedings, is prima facie entitled to his costs pursuant to the general principle in r 42.1 of the rules. Further, accepting (as senior counsel for the plaintiff did) that the preliminary hearing was an interlocutory application for the purposes of r 42.7, the costs to which the defendant is prima facie entitled include those of the preliminary hearing.
2. It is also important to emphasise that the plaintiff bears the onus of establishing a proper basis on which to depart from the general rule. Whilst that course is open as a matter of discretion, it is one on which the Court will embark with some hesitancy. [23]
3. For the reasons that follow, I am not persuaded that I should exercise my discretion to depart from the general rule. In my view, the defendant should have the benefit of a costs order which includes the costs of the preliminary hearing.
4. To begin with, I do not accept that the plaintiff was under an obligation to bring the proceedings. Section 22 of the Act confers a discretion, not an obligation. Further, whilst I accept that the proceedings were brought in good faith in the public interest, that does not, of itself, justify a departure from the general rule. [24] In Australian Conservation Foundation Inc v Forestry Commission of Tasmania, [25] Burchett J explained the position in this way: If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded.
5. The fact that the plaintiff does not seek an order in its favour for the costs of the preliminary hearing is not to the point, for the simple reason that s 55 of the Act expressly precludes the making of such an order. Further, the fact that the defendant is legally aided, and thus not "out of pocket" in respect of costs, is irrelevant in light of s 42 of the LAC Act.
6. Senior counsel for the plaintiff placed considerable emphasis on the fact that the defendant chose not to participate in the assessment conducted by Ms Sweller, the fact that he did participate in the assessments of Dr Eagle and Dr Seidler, and what was described as the resulting "shift" between the evidence at the preliminary hearing and the evidence at the final hearing. As I understood it, it was senior counsel's submission that the defendant's decision not to participate in Ms Sweller's assessment amounted to conduct which disentitled him to the benefit of the order for costs of the preliminary hearing which he now seeks. I am unable to accept that submission. The onus of proving that an order should be made under the Act is on the plaintiff. In declining to participate in the assessment of Ms Sweller, the defendant in was doing no more than exercising a fundamental right that was available to him.
7. Further in my view, there is considerable merit in the submission advanced on behalf of the defendant regarding the structure of the Act, and its effect on the manner in which proceedings are conducted. In the present case, the plaintiff initially sought an ISO as a preliminary step towards the making of an ESO. As senior counsel for the defendant pointed out, in circumstances where proceedings are brought under the Act in that way, the vast majority of the preparatory work is undertaken prior to, and for the purposes of, the preliminary hearing. The additional evidence that is available to the Court at a final hearing is often limited to the reports of Court appointed experts. Whilst some additional "updating" material might also be received from custodial authorities, the volume of any additional material which is made available for the purposes of a final hearing is, on any view, comparatively small. That was certainly the position in the present case. Given that the proceedings against the defendant were ultimately dismissed, and bearing in mind that an order for costs is compensatory in nature, limiting an order for costs in favour of the defendant to the costs incurred in association with the final hearing would, in my view, operate in an entirely unfair way, for the simple reason that it would mean that the defendant, although ultimately successful in the proceedings, would not be compensated for the vast majority of the work which was undertaken.
8. Finally, it is relevant that the day before the final hearing, the defendant's position in relation to costs was set out in correspondence sent to the plaintiff's solicitor, whose attention was specifically drawn to the opinions of Dr Eagle and Dr Seidler in the context of a submission that the evidence did not support the orders which were sought. The defendant's solicitor unequivocally indicated that if the proceedings were discontinued, no order for costs would be sought but conversely, if the proceedings went ahead and were dismissed, an application would be made for such an order. Faced with that clearly articulated position, and specifically acknowledging that the defendant would not seek "those costs incurred to date" if the proceedings were discontinued, the plaintiff nevertheless chose to proceed. In my view, the reference in the correspondence sent by the plaintiff's solicitor to "costs incurred to date" reflected a clear understanding that if proceedings were dismissed, and an application for costs was made by the defendant, any such application would include an application for an order that the plaintiff pay the costs of the preliminary hearing.
9. Over and above that, in reaching the conclusion which had been foreshadowed in the correspondence sent by the defendant's solicitor the day prior to the hearing, his Honour did so principally on the basis of the very same evidence to which the Crown Solicitor's attention had been drawn, and in the face of which a decision was made to proceed nevertheless.
10. All of these circumstances fortify my view that I should make the order sought by the defendant.

ORDER

1. I make the following order: 1. The plaintiff is to pay the defendant's costs of the proceedings, including the costs of the preliminary hearing, as agreed or assessed.

Endnotes

1. State of New South Wales v Church (Preliminary) [2021] NSWSC 246.
2. At [94] and following.
3. Annexure A to the affidavit of Ms Freeman; Tab 4 of Exhibit A.
4. Annexure B to the Affidavit of Ms Freeman; Tab 4 of Exhibit A.
5. State of New South Wales v Church (Final) [2021] NSWSC 713.
6. Exhibit A, Tab 9.
7. At [35].
8. At [38].
9. At [38].
10. At 79.
11. Exhibit A, Tab 11
12. Exhibit A, Tab 10.
13. At [21].
14. At [37] - [43].
15. At [44] - [49].
16. At [66].
17. [2016] NSWSC 1805 at [88].
18. See State of New South Wales v Lawrence (No 2) [2019] NSWSC 1018 at [14].
19. See s 4 of the Civil Procedure Act 2005 (NSW) along with Schedule 1 to that Act.
20. See for example Lawrence (No 2) at [22]; State of New South Wales v Guider (No 3) [2020] NSWSC 209 at [21]; State of New South Wales v Lynn (Costs) [2021] NSWSC 143 at [39].
21. T1.27 - T1.33; T9.41 - T10.27.
22. T10.21 - T10.27.
23. Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10] per Brereton J (as his Honour then was).
24. See Ruddock and ors. v Vardalis and ors. (2001) 188 ALR 143; [2001] FCA 1865 at [21] per Black CJ and French J, citing Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.
25. (1988) 81 ALR 166 at 171. 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: 02 November 2021