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[2026] NSWSC 512
Supreme Court of NSW
2026-05-14
Hamill J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Mohommed Farhat (No 2) (Costs) [2026] NSWSC 512
Hearing dates: On the papers
Date of orders: 14 May 2026
Decision date: 14 May 2026
Jurisdiction: Common Law
Before: Hamill J
Decision: (1) The plaintiff is to pay 50% of the defendant’s costs of or incidental to the preliminary hearing as agreed or assessed.
(2) The costs are payable forthwith.
Catchwords: CIVIL LAW – costs – high risk offender – where application for interim supervision order dismissed – where summons not dismissed and experts appointed – mixed outcome on preliminary hearing – identifying the “event” for the purpose of applying general rule as to costs – whether costs of preliminary hearing should be paid “forthwith”
Legislation Cited: Terrorism (High Risk Offenders) Act 2017 (NSW), ss 24(5), 24(7), 27(a), 27(b), 55
Uniform Civil Procedure Rules 2005 (NSW), r 42.7
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Manna v State of New South Wales (No 2) [2021] NSWSC 1384
State of New South Wales v Benshabir (Preliminary) [2026] NSWSC 348
State of New South Wales v Church (Costs) [2021] NSWSC 1407
State of New South Wales v Mohommed Farhat [2026] NSWSC 19
Texts Cited: N/A
Category: Costs
Parties: State of New South Wales (Plaintiff)
Mohommed Farhat (Defendant)
Representation: Counsel:
T McDonald SC with K Curry (Plaintiff)
P Lange SC (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Kings Law Group (Defendant)
File Number(s): 2026/00035144
Publication restriction: N/A
On 28 January 2026, in circumstances said to be urgent, I heard an application by the State of New South Wales for orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). The case was heard in the vacation duty list.
On 29 January 2026, I made an order appointing experts to prepare reports but the State’s application that the defendant be subject to an interim supervision order was refused. In announcing those orders, I briefly set out some relevant factual findings and indicated that reasons would be provided later. Reasons were published on 3 February 2026: State of New South Wales v Mohommed Farhat [2026] NSWSC 19. The defendant now seeks an order for costs, but the State opposes the order. The parties filed written submissions and agreed the application could be determined on the papers.
The “Defendant’s Submissions as to Costs of Preliminary Hearing” were dated 27 March 2026 and signed by his solicitor. Some emails between the parties were annexed to those submissions. The State’s written submissions were dated 13 April 2026 and signed by Ms McDonald SC and Ms Curry, counsel who appeared at the hearing. The defendant’s “Submissions in Reply” were dated 20 April 2026 and prepared by Mr Lange SC who also appeared at the preliminary hearing.
The background and factual circumstances are set out in the judgment published on 3 February 2026 and, unless necessary, I will not repeat those details here. The orders I made on 29 January 2026 were these:
“(1) An order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW), (a) appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on or before 17 April 2026 and (b) directing the defendant to attend those examinations.
(2) The application for an interim supervision order and the relief sought in prayers 2 and 3 of the amended summons is refused.
(3) An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a Judge of this Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
(4) The matter is listed for directions, case management and status update before Yehia J on Thursday 5 February 2026.
(5) The parties have liberty to approach my Associate urgently to have the matter restored to the list on one hour’s notice including out of regular business hours.”
There were two main issues agitated at the preliminary hearing. The first was whether it “appeared” that the defendant’s current custody or supervision “will” expire before the proceedings are determined. Secondly, there was a dispute as to whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. The defendant succeeded on the first issue while the State succeeded on the second.
The State argued that the mere possibility that a forthcoming District Court (sentence) appeal may result in the defendant’s release would satisfy the legislative requirement that the defendant’s custody (or supervision) “will expire”. This submission was unconvincing and was rejected. The reasoning at [47]-[58] has since been followed, and held to be correct, by Weinstein J in State of New South Wales v Benshabir (Preliminary) [2026] NSWSC 348 at [48]-[52].
The result was that the statutory pre-requisite for the making of an interim supervision order in s 27(a) was not established and, accordingly, that aspect of the relief sought by the State was refused.
There is no such pre-requisite in s 24(5) which authorises the Court to appoint experts to conduct examinations and to furnish reports to the Court.
In the written submissions on costs, the defendant submitted that he “did not oppose” the order for the appointment of the experts. In correspondence between the parties, his lawyers said (with my emphasis):
“In relation to the first area of relief [that is, the appointment of experts], you will recall that our client consented to participating in the review by Ms. Thomson. There is no reason why he would not have likewise participated in the further reviews which will now take place. While it was, we accept, still a matter for the Court to order, had there been consent, the orders would almost invariably have been made (see State of New South Wales v Manners [2008] NSWSC 1242 at [4]) without the need for extensive argument. We note also that no argument was made during the hearing that the appointments should not be made.”
The defendant’s argument on this issue is problematic, not to say a little tricky. It is true, as it was put by Mr Lange in the reply submissions, that “[a]t no point in the written submissions, nor in the oral submissions of counsel, was argument directed to the appointment of the experts”. However, at no stage did the defendant actually consent to the making of an order appointing the experts. The reason for this is self-evident; he disputed that the material before the Court would, if proved, justify the making of an extended supervision order. On this issue, he was not successful. Expert reports were ordered and the matter will proceed to a final hearing.
Had I agreed with the stance taken by the defendant on the substantive issue that arose under ss 24(5), 24(7) and 27(b) – that is, whether the “matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order” – the State’s application would have been dismissed pursuant to s 24(7).
As in the case of Manna v State of New South Wales (No 2) [2021] NSWSC 1384, identifying the “event” for the purpose of applying the general rule that “costs follow the event” is not straightforward. As the State submitted, its summons was not dismissed and an order under s 24(5) (appointing experts) was made. On the other hand, its application for an interim supervision order was dismissed for the fundamental reason that it could not establish the statutory requirement that the defendant’s current custody or supervision “will expire” before the final hearing.
The outcome can appropriately be described as “mixed”: cf Doppstadt Au**stralia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219. As the Court (Ward, Emmett and Gleeson JJA) said in that case at [19]:
“Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: James v Surf Road Nominees Pty Ltd (No 2) at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.”
Their Honours also referred to the observation of the Court of Appeal (Beazley, Ipp and Basten JJA) in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 where the Court said at [38] that “[w]hether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed”.
In the circumstances prevailing in this case, the appropriate order is that the State pay half of the defendant’s costs of the preliminary hearing.
The defendant placed some reliance on observations made by Bellew J in State of New South Wales v Church (Costs) [2021] NSWSC 1407. I do not accept that those observations, which suggested “the vast majority of the preparatory work is undertaken prior to, and for the purposes of, the preliminary hearing”, are applicable in the circumstances of the present case. The present case was brought urgently, Senior Counsel came into the matter very late, and his written submissions on behalf of the defendant were less than two pages in length. No evidentiary material was tendered on behalf of the defendant. The matter is now on track for a final hearing which, according to JusticeLink, is listed on 22-23 July 2026. If he is ultimately successful, the defendant could seek an order for all of his costs including the balance of the costs of the preliminary hearing.
The parties also debated (in writing) whether any costs award relating to the preliminary hearing should be paid “forthwith”. Reference was made to r 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) which provides that, “[u]nless the court orders otherwise”, the costs of interlocutory applications “do not become payable until the conclusion of the proceedings”.
The defendant submitted that the costs should be paid forthwith and noted that s 55 of the Act prohibits an award of costs against an eligible offender which means there is no utility in delaying the payment of the costs until the end of the proceedings because there is “no risk of multiple costs assessments”. I accept that submission and cannot accept the State’s submission that the costs issue should be determined at the conclusion of the proceedings because (i) the costs of preparation of the preliminary hearing were not costs thrown away and (ii) “it is not anticipated that the costs of the [d]efendant will be significant” because there is no undue delay. The costs involved in litigating the jurisdictional issue were “thrown away” and resulted from the State’s precipitous application for an interim supervision order.
For those reasons, I make the following orders:
The plaintiff is to pay 50% of the defendant’s costs of or incidental to the preliminary hearing as agreed or assessed.
The costs are payable forthwith.
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State of New South Wales
Mohommed Farhat (No 2) (Costs)