Adamson v Commissioner of Police for NSW

[2008] NSWSC 789

CITATION:	Adamson v Commissioner of Police for NSW [2008] NSWSC 789
HEARING DATE(S):	28 July 2008
JUDGMENT DATE :	4 August 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The plaintiff is to pay the defendant's costs to date. These costs include the costs of this motion. (2) The matter is to be listed for a status conference before the Registrar on 25 August 2008 at 9.00am.
CATCHWORDS:	COSTS - Discontinuance
LEGISLATION CITED:	Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Fordyce v Fordham & Anor [2006] NSWCA 274; (2006) NSWLR 497 Greer v The Comjmissioner of Police [2002] NSWSC 356 Tye v The Commissioner of Police (1995) 84 A Crim R 147
PARTIES:	Christopher Michael Adamson (Plaintiff) Commissioner of Police for New South Wales ( Defendant)
FILE NUMBER(S):	SC 15734/2006
COUNSEL:	Mr C Lonergan (Defendant)
SOLICITORS:	C Adamson (Plaintiff in person) Crown Solicitor ( Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 4 AUGUST 2008

15734/2006 - CHRISTOPHER MICHAEL ADAMSON v
COMMISSIONER OF POLICE FOR
NEW SOUTH WALES

JUDGMENT (Costs: discontinuance)

1 HER HONOUR: By notice of motion dated 14 March 2008, the plaintiff seeks firstly, an order that the defendant pay the plaintiff’s costs of the proceedings up to the making of and the performance of the orders made by his Honour Justice Adams on 8 December 2006 and the return of property to the plaintiff as of the date of these orders; secondly, that the plaintiff pay the defendant’s costs of these proceedings not otherwise the subject of costs orders; and thirdly, that the plaintiff be granted leave to discontinue on the terms of the costs orders.

2 The defendant opposes the orders sought and seeks his costs to date and the costs of this motion. If the ultimate result is that this Court orders that the plaintiff pay the defendant’s costs to date, then the plaintiff does not want to discontinue the proceedings. He will proceed to a substantive hearing. Thus, his filing of a notice of discontinuance is conditional upon him being awarded costs in his favour for part of the proceedings.

3 The plaintiff is Christopher Michael Adamson. The defendant is the Commissioner of Police for New South Wales. The plaintiff did not rely upon any evidence. The defendant relied on an affidavit of Emma Louise Sullivan dated 6 June 2008.

4 On 22 September 2005, a police officer obtained a search warrant to search the plaintiff’s premises at Nabiac. On 23 September 2005, the search warrant was executed and goods were seized, including a laptop computer. Between 28 September 2005 and 17 October 2006, the plaintiff corresponded with the Police and the Department of Public Prosecutions seeking the return of his laptop. He advised the Police that there were confidential client files and business records stored on the computer. On 23 June 2006, the plaintiff sought that the hard drive be copied and the laptop be returned to him (see Ex A).

5 By summons filed 23 November 2006, the plaintiff sought the following:

“1. A declaration that the plaintiff is presently entitled to have returned to him all of the following property taken and seized by the defendant from the plaintiff’s residence at xxx xxxxxxx xxxx Nabiac NSW on or about the 23 September 2005 purportedly pursuant to a search warrant dated 22 September 2005 which purports to have been issued pursuant to the Search Warrants Act 1985 of NSW:
(i) All documents taken except any which are reasonably capable of being relevant to the remaining charges, if any, laid against the plaintiff; and
(ii) The sharp laptop computer.”

6 The second paragraph (1) is in similar terms but seeks an order that the documents and laptop be returned forthwith.

7 Paragraph (2) seeks:

“2. That, except with the leave of the Court, no further use be made of the documents or the sharp laptop computer or any copies taken or of any information gained from the documents or the sharp laptop computer or its hard drive or any copies thereof copies taken and seized from the plaintiff’s residence on or about 23 September 2005 by the defendant except such documents or copies thereof or information gained from such documents or the sharp laptop or its hard drive as are reasonably capable of being relevant to the remaining charges, if any, presently laid against the plaintiff.”

The orders made on 8 December 2006

8 On 8 December 2006, Adams J made the following orders:

“The Court makes the following orders, noting that orders 4 and 5 have not been consented to by the defendant -
(1) The defendant will make available by 5pm on 12 December 2006 to the plaintiff (for collection) a copy in DVD format of the contents of the hard drive of the Sharp laptop computer seized pursuant to the search warrant executed on 23 September 2005.
(2) The plaintiff will notify the defendant by 5pm on 9 January 2007 of any claims of privilege in respect of documents provided to the plaintiff pursuant to order 1 above.
(3) By 23 January 2007, the parties will endeavour to reach agreement as to the appropriateness of any claims for privilege as notified pursuant to order 2 above.
(4) The computer is not to be used except for the purpose of making a copy of the contents of the hard drive to be provided to the plaintiff in accordance with order 1.
(5) As to all existing copies of the hard drive -
(i) They are not to be used or accessed by any person until completion of the steps referred to in para (iii) of this order;
(ii) If the parties reach agreement in accordance with order 3, the existing copies of the contents of the hard drive must be destroyed;
(iii) The defendant may use the computer to produce, for the purposes of the preparation and conduct of the trial of the plaintiff, one or more copies of that part only of the hard drive that is relevant to the issues in the trial of the plaintiff and excluding that part of the hard drive containing the agreed confidential files, and may use such copy or copies as is appropriate for the purposes mentioned;
(iv) The computer is to remain in the custody of the defendant under secure conditions that ensure no person will have access to it except for the purposes of compliance with these orders and production at the trial of the plaintiff is necessary or desirable.
(6) The plaintiff’s summons is stood over for mention at 10am on 2 January 2007 before Adams J.
(7) Liberty to apply granted to the parties on 3 days notice.
(8) Reserve question as to costs.”

9 Before Adams J, orders (1) to (3) were made by consent. Orders (4) and (5) were not made by consent. Overall the orders made by Adams J were not those sought in the summons. The end result reflected a compromise. The original hard drive remained in the possession of the Police and the plaintiff was to be furnished with a copy of the contents of the hard drive. The plaintiff submitted that he should have a costs order in his favour from the commencement of proceedings and up to and including the appearances before Adams J.

10 On 2 April 2007, the summons was listed for hearing before Justice Barr. His Honour, in his reasons for judgment, stated at [10]:

“It is also relevant to this application that the Crown solicitor, representing the Commissioner, has for some time held out an offer to Mr Adamson to return to him the lap top computer together with a forensic copy of the contents of the hard drive taken on 29 June 2006 if he will formally acknowledge its authenticity. Mr Adamson prefers not to make any such formal acknowledgment.”

11 Justice Barr granted an adjournment and ordered that there be no order as to costs. Since then the plaintiff has amended his pleadings a number of times. The plaintiff now alleges that the warrant was unlawfully issued (see - amended statement of claim filed 07/08/2007 at [6]-[9]).

The unsuccessful strike out application

12 On 30 October 2007, the defendant filed a notice of motion in which the defendant claimed orders that all of the originating documents which had been filed by the plaintiff should be struck out pursuant to Pt 13 r 4 of the Uniform Civil Procedure Rules.

13 His Honour Justice James stated at [7]:

“It may be that criticisms, and indeed serious criticisms, can be made of the plaintiff’s amended statement of claim. However, in my opinion, it sufficiently appears that the plaintiff alleges that the search warrant was unlawfully obtained, unlawfully issued and improperly executed.”

14 His Honour refused to strike out the pleadings and granted leave to the plaintiff to amend his statement of claim. His Honour ordered that each party to pay their own costs of that motion.

15 The plaintiff acknowledged unless costs orders have already been made, he should bear the costs of the amendments to his pleadings. However, the plaintiff submitted that these proceedings were reasonably brought for a just and reasonable purpose and as he was substantially successful in obtaining the relief he sought when Adams J made the orders on 8 December 2006, that he should be entitled to his costs up to that date together with the costs incurred up until the copy of the hard drive and documents were returned to him. Justice Adams made an order reserving costs on 8 December 2006.

Costs

16 Costs are discretionary. Costs usually follow the event.

17 Part 42.19 of the Uniform Civil Procedure Rules reads:

“42.19 Proceedings discontinued

(1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.

(2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant’s costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.”

18 Rule 12.1 of the Uniform Civil Procedure Rules reads:

“(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant:
(a) with the consent of each other active party in the proceedings, or
(b) with the leave of the court.
(2) A notice of discontinuance:


(a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and

(b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.


(3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent.

(4) If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect.

(5) For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.”

19 In Fordyce v Fordham & Anor 67 [2006] NSWCA 274; (2006) NSWLR 497, Santow J at [3] stated:

“I would wish to add this observation on one aspect of the reasons on UCPR 42.19 and 42.20. I consider the fact of discontinuance is likely to be a factor of some weight in exercising the discretion to determine whether the discontinuing party should be ordered to pay the other party’s costs. While it is true the Court may otherwise order, the onus remains on the discontinuing party to justify such an order by reference to the circumstances said to justify exception to the normal cost outcome in such event. That the Court retains a discretion to accommodate such circumstances does not alter their character as being by way of exception nor the consequence in terms of onus. That said, the discretion remains to otherwise order.”

20 The defendant submitted that its conduct during the course of the proceedings can in no way ground any suggestion that the defendant has engaged in any unreasonable conduct and that would otherwise justify a departure from the ordinary rule that it is the discontinuing party who must pay the opponent’s costs.

21 The defendant referred to the decision of Barr J dated 2 April 2007 where his Honour referred to Tye v The Commissioner of Police (1995) 84 A Crim R 147 and Greer v The Commissioner of Police [2002] NSWSC 356 and stated at par [6] and par [8]:

“6. Fundamental to the summons and the issues thereby raised is the proposition that evidence of material retrieved from the hard drive on the lap top computer is capable of bearing upon the charges. It has not been submitted that the computer or its contents or any derivative thereof has no relevance to the issues to be decided before the Local Court. Mr Lonergan relied on well known authorities in this Court, notably Tye v The Commissioner of Police , a decision of Studdert J of 13 September 1995 which is reported at [1995] 84 A Crim R 147, and a decision of Bell J of this Court which rides upon it; Greer v Commissioner of Police [2002] NSWSC 356. Having reviewed the authorities Studdert J said this at 155 -
Quite apart from those cases where a litigant has sought the return of some property, there are many other authorities which reflect the unwillingness of the civil courts to act in such a manner as would interfere with the process of contemplated criminal proceedings.”
…
8. I am not deciding the fate of the summons itself, merely that of the application to adjourn the hearing of it, but it seems to me that the contents of the lap top are obviously going to be relevant to the prosecution whatever charges the Director of Public Prosecutions eventually decides to press against Mr Adamson. On ordinary principles the court would be reluctant to order the return of the lap top and things derived from it.”

22 The defendant submitted that in the circumstances it would not be appropriate for the Court to depart from the starting position set out in Part 42.19, that it is the plaintiff ought to be ordered to pay the defendant’s costs of the proceedings up until the point of time that the notice of motion seeking to discontinue was in fact filed.

23 As it appears from the judgment of Barr J, the Crown solicitor had offered to return the laptop computer together with a forensic copy of the contents of the hard drive taken on 26 June 2006 if the plaintiff formally acknowledged its authenticity. The plaintiff chose not to accept that offer and decided to commence these court proceedings. Had the plaintiff been successful and the Police had been ordered to return the laptop, I would have awarded him his costs up to and including the hearing before Adams J on 8 December 2006. But this is not the situation. The plaintiff obtained a copy of what was contained on his hard drive. In my view, the orders made by Adams J largely reflect what was offered to the plaintiff prior to the filing of the summons. The plaintiff did not better his position. In any event as Barr J stated, “on ordinary principles the Court would be reluctant to order the return of the lap top”.

24 The plaintiff is hedging his bets. If he does not obtain a costs order in his favour, he will not discontinue these proceedings. By not making an election to discontinue, the rules as to the costs of discontinuance do not necessarily apply. By taking this stance, the plaintiff is seeking to avoid the operation of Part 42.19(2). However, it is my view that whether the plaintiff files a notice of discontinuance or not, he should pay the costs of the proceedings to date and these costs include the costs of this motion. This is because the orders made by Adams J were a compromise and merely reflected what had already been offered by the defendant. The plaintiff was unlikely to have been granted the order he sought for the reasons outlined by Barr J. The rest of the outstanding costs are for appearances, which involved the plaintiff amending his claim.

25 The defendant sought an order pursuant to Part 12.4 that these costs be paid before any other proceedings on foot. As it is the current proceedings, which remain on foot, I decline to make such an order.

The Court orders

(1) The plaintiff is to pay the defendant’s costs to date. These costs include the costs of this motion.

(2) The matter is to be listed for a status conference before the Registrar on 25 August 2008 at 9.00am.
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