A v Commissioner of Police

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
A v COMMISSIONER OF POLICE
[2022] SASC 33
Judgment of the Honourable Justice Blue
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - WHERE ACTION SETTLED OR OTHERWISE DETERMINED WITHOUT HEARING
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - PARTIES AND NON-PARTIES
Application for costs.
The applicant instituted an action seeking an injunction restraining the respondent and officers of South Australia Police from making a foreshadowed application for an order authorising measurement of his height pursuant to section 19 of the Criminal Law (Forensic Procedures) Act 2007 and a declaration that the application was ultra vires the provisions of the Act.
Before institution of the action, the respondent’s solicitor had informed the applicant’s solicitor that the respondent would contend that there would be no justiciable controversy to enliven the jurisdiction of the Court before the making of any section 19 order.
At a directions hearing, orders were made relating to the joinder of potential co-applicants in respect of whom SAPOL had foreshadowed applications for similar section 19 orders. Three other persons took steps to be joined as co-applicants with the applicant.
At the next directions hearing, the respondent informed the Court that it had been decided not to proceed to make an application for a section 19 order. The applicant and two other persons sought orders for costs.
Held (dismissing the applications):
1 It was not reasonable for the applicant to institute the action before any section 19 order was made without seeking an undertaking from the Commissioner not to perform any measurement before determination of a challenge to a section 19 order (at [43]).
2 No order for costs should be made in favour of the other two persons for similar reasons (at [46]).
3 Applications dismissed (at [47]).
Criminal Law (Forensic Procedures) Act 2007 (SA) ss 3, 14-17, 19; Supreme Court Act 1935 (SA) s 40, referred to.
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, considered.

A v COMMISSIONER OF POLICE
[2022] SASC 33

BLUE J: The applicant, A, instituted this action on 21 March 2022 seeking an injunction restraining the respondent, the Commissioner of Police, and officers of South Australia Police (SAPOL) from making a foreshadowed application for an order authorising the measurement of A’s height pursuant to section 19 of the Criminal Law (Forensic Procedures) Act 2007 (the Act) and a declaration that the application was ultra vires the provisions of the Act.
Before the institution of the action, the Crown Solicitor, acting for the Commissioner, had informed A’s solicitors that the Commissioner would contend that any application for relief would be premature, and there would be no justiciable controversy to enliven the jurisdiction of the Court, before the making of any section 19 order.
At a directions hearing on 22 March 2022, orders were made relating to the joinder of potential co-applicants in respect of whom SAPOL had foreshadowed applications for similar section 19 orders. B and C (and one other person) took steps to be joined as co-applicants with A.
At the next directions hearing on 25 March 2022, counsel for the Commissioner informed the Court that it had been decided not to proceed to make an application for a section 19 order. A, B and C sought orders for payment by the Commissioner of their costs of action. The Commissioner opposed such orders on the ground that the justiciability issue was never determined; it was unreasonable for A to institute the action before any section 19 order was made and without seeking an undertaking that any measurement be conducted after the making of any such order and before determination of a challenge to it; and, in the case of B and C, in addition that no order for costs should be made in any event in favour of them because they are not parties to the action.
Background
On 10 March 2022 Detective Sergeant Fitzpatrick sent an email to A’s solicitor stating that he intended to make an application under section 15 of the Act for an order authorising a forensic procedure, namely measurement of A’s height. He attached a draft application. He said that SAPOL intended to visit A at a time and date mutually suitable with A’s solicitor to conduct a hearing [under sections 16 and 17 of the Act] before a Senior Police Officer of the proposed application.
In the email, Detective Sergeant Fitzpatrick requested that A’s solicitor inform him by 5 pm on 18 March 2022 whether they would participate in the proposed hearing and whether A wished to be represented by A’s solicitor or another lawyer at the hearing. He said that, in the event that a forensic procedure was authorised by a senior police officer, it would be carried out at a later time and SAPOL would advise A’s solicitor of the date and time so that he could attend if required.
By way of background, on 19 June 2021 Detective Sergeant Fitzpatrick had sent an email to A’s solicitor stating that SAPOL intended to make an application to a senior police officer on 25 June 2021 for an order authorising a forensic procedure, namely examination and photographing of A’s body, and enquiring whether A’s solicitor or another lawyer wished to be present on 25 June. A’s solicitor sent an email on 21 June in response opposing the course proposed and contending that it was unlawful because, amongst other reasons, there was no power in the Act to undertake the proposed examination. Detective Sergeant Fitzpatrick sent an email on 22 June in response stating that SAPOL would not conduct the proposed forensic procedure on 25 June and would provide five days notice of any proposed procedure.
On 18 March 2022 at 4.19 pm A’s solicitor sent an email to Detective Sergeant Fitzpatrick in response to his 10 March email. He said that he was instructed to take out a proceeding in the Supreme Court seeking declarations and injunctive relief against the Commissioner regarding the action proposed and anticipated that the proceeding would be filed on 21 March. He sought confirmation that Detective Sergeant Fitzpatrick would take no action until then.
On 18 March 2022 at 4.43 pm Detective Sergeant Fitzpatrick sent an email in response saying that SAPOL did not intend to seek a forensic procedure between then and 21 March 2022.
On 21 March 2022 the Crown Solicitor sent by email a letter to A’s solicitor saying that the Crown Solicitor acted for the Commissioner in relation to the proposed proceeding. The letter stated that no application had yet been made under section 15 and no order under section 19 had been made. The letter stated that, in the absence of a section 19 order, any proceeding would be asking the Court to resolve an abstract or hypothetical question and determination of that question would not establish or affect any immediate right, duty or liability. The letter stated that, in those circumstances, there was presently no justiciable controversy to enliven the jurisdiction of the Court and alternatively these matters would strongly militate against the Court exercising its discretion to make a declaration. The letter stated that the above considerations would not apply in respect of a proceeding instituted after a section 19 order were made, if that in fact occurred.
On 21 March 2022 A’s solicitors instituted the action on behalf of A. The originating application was supported by an affidavit by A’s solicitor, essentially deposing to the facts, and exhibiting the documents, summarised above.
On 22 March 2022 the matter came on for directions. The solicitor appearing for the Commissioner sought the hearing and determination of a preliminary issue, namely whether there was a justiciable controversy in the absence of a section 15 application and section 19 order having been made. I suggested that the need for determination of that issue could be avoided by agreement on a methodology whereby the lawfulness of the proposed procedure would be dealt with after a section 15 application or section 19 order was made (if it was made) and before any such order were implemented. The solicitor for the Commissioner agreed to this course and said that SAPOL’s intention was always to have a period of time between the making of the order, if it was made, and the undertaking of the procedure to give the opportunity for an application to be made to the Court to determine the lawfulness of the proposed procedure. Counsel for A also agreed to this course.
Counsel for A raised the position of other persons in respect of whom SAPOL had foreshadowed similar section 15 applications. I suggested that the easiest way to address them would be, with their consent, to join them as co-applicants with an entitlement for each applicant to be represented by a different solicitor.
Counsel for A identified that there were two grounds for the contention that the proposed procedure was unlawful. The grounds were that the proposed measurement was not a “forensic procedure” within the meaning of subsection 3(1), and A was not a suspect within the meaning of section 14, of the Act.
The matter was adjourned for directions to 25 March 2022. An order was made that, if any of the other persons the subject of a similar foreshadowed section 15 application wished to be joined as a co-applicant in the action, they are to be joined as co-applicants and each is permitted to be represented by a different solicitor.
On 22 March 2022 B’s solicitor filed an affidavit on behalf of B primarily deposing to and exhibiting communications between B’s solicitor and Detective Sergeant Fitzpatrick in June 2021 and March 2022, which were along similar lines to the communications between A’s solicitor and Detective Sergeant Fitzpatrick.
On 23 March 2022 B’s solicitor and C’s solicitor each sent an email to the Court, copied to the Crown Solicitor, stating that B and C respectively consented to being joined as an applicant in the action.
On the afternoon of 24 March or morning of 25 March 2022 the Crown Solicitor informed the solicitors for A, B and C that it had been decided not to proceed to make an application for a section 19 order. A, B and C sought orders for the payment by the Commissioner of their costs of action.
The Forensic Procedures Act provisions
Division 2 of Part 2 of the Act provides a detailed mechanism for the making by a senior police officer of an order authorising a forensic procedure (other than a simple forensic procedure) in respect of a person (the subject) suspected of a serious offence provided that certain criteria are satisfied.
Section 14 of the Act provides for a forensic procedure by way of a “suspects procedure” to be carried out. It provides:
14—Suspects procedures
(1)A forensic procedure authorised under this Division is a suspects procedure.
(2)A forensic procedure may be carried out on a person under this Division if—
(a)     the person is suspected of a serious offence; and
(b)     either—
(i)    the procedure consists only of a simple forensic procedure; or
(ii)     the procedure is authorised by order under this Division.
(3)For the avoidance of doubt, a forensic procedure may be carried out on a person under this Division whether or not the person is in lawful custody.
The term “forensic procedure is defined by subsection 3(1):
forensic procedure means a procedure carried out by or on behalf of South Australia Police or a law enforcement authority and consisting of—
(a)the taking of prints of the hands, fingers, feet or toes; or
(b)an examination of a part of a person's body (but not an examination that can be conducted without disturbing the person's clothing and without physical contact with the person); or
(c)the taking of a sample of biological or other material from a person's body (but not the taking of a detached hair from the person's clothing); or
Note—
This would include, for example, taking a sample of the person's hair, a sample of the person's fingernails or toenails or material under the person's fingernails or toenails, a blood sample, a sample by buccal swab or a sample of saliva.
(d)the taking of an impression or cast of a part of a person's body;
Note—
This would include, for example, the taking of a dental impression or the taking of an impression or cast of a wound.
Subsections 15(2) to (4) govern the procedure for making and serving an application by a police officer for an order authorising a suspects procedure. Section 15 provides:
15—Application for order
(1)An order authorising a forensic procedure under this Division may be made by a senior police officer.
(2)An application for such an order—
(a)must be made in writing by a police officer; and
(b) must state the nature of the suspected offence and the grounds for suspecting that the respondent has committed the offence; and
(c) must state the nature of the forensic procedure for which the order is sought and the grounds for suspecting the forensic procedure could produce evidence of value to the investigation of the suspected offence.
(3)A copy of the application must be given to the respondent, unless the application is one to which section 18 applies.
(4)The application may be sent by fax or email to the senior police officer who is to hear the application or, if it is not reasonably practicable to send the application by fax or email, the application may be read to the officer over the telephone (however, in such a case, a copy of the application must be provided to the officer as soon as practicable after the application is made).
Sections 16 and 17 govern the procedure for a hearing. Section 18 applies when there is special urgency, which is not relevant in this case. Sections 16 and 17 provide:
16—Conduct of hearing
Subject to this Division, an order may be made by a senior police officer on the basis of an informal hearing conducted in such manner as the senior police officer thinks fit.
17—Respondent's rights at hearing of application
(1)The respondent may be represented by a legal practitioner at the hearing of the application.
(2)If the respondent is a protected person, he or she must be represented by an appropriate representative at the hearing (and may also be represented by a legal practitioner).
(3)An appropriate representative may be—
(a)     a parent, relative or friend chosen by, or acceptable to, the protected person; or
(b)     if there is no available person in the above category—an advocate for the protected person nominated by a government or private agency with responsibilities for the care of protected persons of the relevant class; or
(c)     if there is no available person within the above categories—a person, who is not a police officer or person involved in the investigation of the suspected offence, chosen by a police officer in charge of a police station or the investigating police officer.
(4)A hearing may be conducted by telephone or other electronic means provided that the respondent or the respondent's representatives (if any) are given a reasonable opportunity to make representations at the hearing to the senior police officer who is determining the application.
Section 19, in conjunction with subsection 15(1), empowers the making of an order by a senior police officer authorising a suspects procedure. Section 19 relevantly provides:
19—Making of order
(1)A senior police officer may make an order authorising the carrying out of a forensic procedure on the respondent if, after conducting the hearing required under this Division, the officer is satisfied that—
(a)     there are reasonable grounds to suspect that the respondent has committed a serious offence; and
(b)     there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence; and
(c)     the public interest in obtaining evidence tending to prove or disprove the respondent's guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference.
(2)In weighing the public interest in obtaining evidence tending to prove or disprove guilt against the public interest in ensuring that private individuals are protected from unwanted interference, the senior police officer must have regard to—
(a)the seriousness of the suspected offence; and
(b)     the extent to which the procedure is necessary for the proper investigation of the suspected offence; and
(c)     any likely effects of the procedure on the welfare of the respondent (so far as they can be reasonably anticipated) given the respondent's age, physical and mental health, and cultural and ethnic background; and
(d)     whether there is a less intrusive but reasonably practicable way of obtaining evidence of the same or similar probative value to confirm or disprove that the respondent committed the suspected offence; and
(e)other relevant factors.
(3)If a senior police officer makes an order authorising the carrying out of a forensic procedure under this Division, the officer must make a written record of the order and the reasons for the order.
(4)A copy of the record of the order must be given to the respondent.
…
A “senior police officer” is defined by subsection 3(1) to mean a police officer of or above the rank of inspector.
The costs application by A
A contends that the Commissioner should pay his costs of action because the institution of the action has been vindicated by SAPOL deciding not to proceed with an application for a section 19 order for measurement of his height and hence he was successful in the action.
The Commissioner contends that the institution of the action was premature, the justiciability issue was never determined and the ordinary rule is that a court will not decide a substantive issue merely for the purpose of ordering costs. The Commissioner also contends that it was unreasonable for A to institute the action before any section 19 order was made and without seeking an undertaking not to perform any measurement before determination of a challenge to any section 19 order.
A contends that he was obliged to institute the action given the foreshadowed application and observes that the Commissioner did not offer an undertaking.
Costs are in the discretion of the Court under section 40 of the Supreme Court Act 1935 (SA). The discretion is unfettered but must be exercised judicially.[1]
[1] Cretazzo v Lombardi (1975) 13 SASR 4 at 11 per Bray CJ (with whom Zelling and Jacobs JJ agreed).
Without fettering the discretion, several general principles have been formulated in relation to the exercise of the discretion, which principles are best regarded as rules of thumb. There is a unifying factor underlying many of these general principles that the Court is endeavouring to ascertain which party caused or contributed to the incurring of the costs in question.[2] However, this concept of “causation” does not involve a simplistic application of a “but for” test, nor even the common sense causation test applied in March v E & MH Stramare Pty Ltd.[3] Typically there will be multiple causes that might be characterised as material causes of the incurring of costs of (or in) an action. In exercising the discretion as to costs, it is necessary to make an evaluative judgment as to the role of the concurrent (or competing) causes in the incurring of the costs in question.
[2] Koonara Management Pty Ltd (Receivers and Managers Appointed) v Fabriano Pty Ltd [2019] SASC 99 at [51]; Bell v Deputy Coroner of South Australia (No 2) [2020] SASC 77 at [24]; Duncan as Liquidator of WDR Iron Ore Pty Ltd (In Liquidation) v SMA Industries Pty Ltd (No 2) [2020] SASC 127 at [29]; Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75 at [6].
[3] (1991) 171 CLR 506.

Examples of general principles based on the underlying factor include:
·the principle that costs generally follow the event when there is a determination by the Court of the merits of the proceeding and there is a manifestly successful party and unsuccessful party;
·the principle that a party may be ordered to pay the costs of their opponent (or at least not recover their own costs) on a relatively discrete and substantial issue on which the opponent succeeded notwithstanding that the first party succeeds overall in the action;
·the principle that a party may be ordered to pay the costs of their opponent incurred after that party rejected an offer by their opponent that would have produced a better result to the party than the ultimate result of the action; and
·the principle that a party may be ordered to pay the costs of their opponent caused by misconduct or other conduct by that party in, relating to or leading up to the action.
If the proceeding is not determined by the Court on the merits, often it cannot be said that there is an “event” which costs should follow.[4] In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin,[5] McHugh J said:
Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.[6]
[4] J.T. Stratford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122 at 1124 per Lord Denning MR (with whom Winn and Cross LJJ agreed); Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625 per McHugh J.
[5] (1997) 186 CLR 622.
[6] At 624. (Footnote omitted)
As observed above, a relevant factor in exercising the discretion as to costs is the extent to which the costs in question have been caused or increased by the conduct of a party in, relating to or leading up to the action or application in question.[7]
[7] Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 622 per A. L. Smith LJ; Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874 per Devlin J; Verna Trading Pty Ltd v New India Assurance Co Ltd[1991] 1 VR 129 at 154-155 per Kaye J.
In a context where the matter resolved and did not proceed to determination by the Court, in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin,[8] McHugh J said:
In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation…
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.[9]
[8] (1997) 186 CLR 622.
[9] At 624-625. (Footnotes omitted)
In the present case, I proceed on the assumption (in favour of A) that, in deciding not to proceed with the proposed section 15 application, the Commissioner accepted (for the purpose only of this action) that a section 19 order would have been unlawful in the circumstances.
However, lawfulness of a prospective section 19 order was not the sole issue in the action. There was also the issue of justiciability raised by the Commissioner. That issue has not been decided. The general principle is that the Court will not determine a substantive issue merely for the purpose of determining costs.
It is necessary to consider the reasonableness of the conduct of the parties. In all of the circumstances, it was unreasonable for A to institute the action on 21 March 2022 without first exploring whether any litigation could await the determination by a senior police officer whether a section 19 order should be made.
In his communications with A’s solicitor, Detective Sergeant Fitzpatrick had not proceeded in a precipitous manner and instead had proceeded in a cooperative manner. He gave advance notice to A’s solicitor of his intention to make an application and gave them eight days to respond. He provided a draft of his intended application. He indicated that, if an order were made, the procedure would be undertaken at a later time with advance notice of the date and time so that A’s solicitor could attend. When he was told of A’s solicitor’s intention to institute this action on 21 March, he readily agreed not to seek a forensic procedure between then and 21 March.
Before the institution of the action, A’s solicitors were put on notice by the Crown Solicitor that the Commissioner would contend that, unless and until a section 19 order were made, there was no justiciable controversy and the Court should decline to determine the lawfulness of any proposed procedure. The Crown Solicitor explicitly accepted that there would be a justiciable controversy after a section 19 order were made, if that were to occur. The Crown Solicitor, and the Commissioner, were known to be a model litigant. Given their contention that any litigation would be premature, and the history of the matter, there was no reason to anticipate that they would not give an undertaking not to conduct a forensic procedure after an order were made until A had the opportunity to institute litigation seeking declaratory and injunctive relief.
Parties to civil litigation are expected to cooperate in relation to the institution and conduct of such litigation insofar as that is consistent with their interests in and in relation to such litigation. There was no reason why A’s solicitors could not have telephoned the Crown Solicitor on 21 March on receipt of the Crown Solicitor’s letter and sought an undertaking of the type referred to in the previous paragraph. Given the Commissioner’s contention as to justiciability, it is extremely difficult to see how the Commissioner could have refused to give such an undertaking, and if he had done so, it would have justified institution of the action.
A contends that, but for SAPOL’s decision to make an application for a section 19 order, there would have been no action instituted and no costs incurred and accordingly that decision should be seen as the cause of the institution of the action and the incurring of costs. However, as observed above, the exercise of the costs discretion does not involve a simple application of a “but for” test. The common sense cause of the institution of the action, and the consequential incurring of costs, was the decision by A to institute the action without first exploring whether any litigation could await the determination by a senior police officer whether a section 19 order should be made.
Although not necessary to my decision, given that after the Crown Solicitor commenced acting for the Commissioner, SAPOL decided not to proceed with the application, I find that it is probable that the same decision would have been made if the action had not been instituted on the Crown Solicitor considering the lawfulness of the proposed procedure. A senior police officer only has jurisdiction to authorise a procedure under subsection 15(1) and section 19 of the Act if the procedure is a forensic procedure, and the subject is a suspect, within the meaning of the Act. Any senior police officer who heard the application would have been required to satisfy themselves that they had jurisdiction to make the order and it seems inconceivable that they would not have sought legal advice from the Crown Solicitor in relation to this question given the contention of unlawfulness by A.
In the circumstances, there should be no order as to costs as between A and the Commissioner.
The costs applications by B and C
The order made on 22 March 2022 was intended to facilitate the joinder of additional applicants and to enable them to be separately represented by their own solicitors in the action. On its proper construction, a specific order for joinder of a specific applicant represented by specific solicitors was required before a person would become a co-applicant and it was anticipated that this would occur at the adjourned directions hearing on 25 March (or perhaps thereafter). However, for the purposes of making costs orders, given the clear objective intent of the order that such persons were entitled to become parties to the action if they so wished, they should be treated as if they were parties rather than being treated as non-parties.
B and C ought not to be in a better position in terms of costs than A who instituted the action. In a sense, their entitlement to costs is derivative of A’s entitlement to costs. If I had ordered that the Commissioner pay A’s costs of action, it is likely that I would also have ordered that the Commissioner pay B’s and C’s costs (albeit they would have been quite limited compared to A’s costs). However, for the reasons given above, it is not appropriate to order that the Commissioner pay A’s costs of action. In addition, there is no reason why B and C could not themselves have explored whether litigation could await the determination by a senior police officer whether a section 19 order should be made.
In the circumstances, there should be no order as to costs as between B or C and the Commissioner.
Conclusion
I order that there be no order as to the costs of the action.

[2022] SASC 33

6 April 2022