Ahmad v Director of Public Prosecutions (No 2)

[2017] NSWSC 204

Supreme Court

New South Wales

Medium Neutral Citation:	Ahmad v Director of Public Prosecutions (No 2) [2017] NSWSC 204
Hearing dates:	In chambers on the papers
Date of orders:	08 March 2017
Decision date:	08 March 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)   Costs are awarded to the plaintiff and are payable by the defendant. (2)   The quantum of those costs is $5000.
Catchwords:	COSTS – specified lump sum costs orders – the discretion to award costs in civil proceedings – the general rule that costs follow the event – onus of displacing the general rule as to costs lies with the defendant – held that the general rule as to costs is to be applied
Legislation Cited:	Bail Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ahmad v Director of Public Prosecutions [2017] NSWSC 90 Norfeld v Jones (No 2) [2014] NSWSC 199 Oshlack v Richmond River Council (1998) 193 CLR 72
Category:	Procedural and other rulings
Parties:	Thayur Ahmad (Plaintiff) Director of Public Prosecutions (Defendant)
Representation:	Counsel: Ms Sophie Toomey (solicitor)(Plaintiff) Mr P Low (solicitor) (Defendant)     Solicitors: Toomey Criminal Defence Lawyers (Plaintiff) Office of the Director of Public Prosecutions (Defendants)
File Number(s):	2017/12087
Publication restriction:	Nil

Background

1. This is an application for reserved costs arising out of proceedings before me on 20 January 2017. The following judgment for costs assumes a familiarity with my previous decision: Ahmad v Director of Public Prosecutions [2017] NSWSC 90.

2. In summary, an application was brought before the Local Court at Burwood on 21 December 2016 for the plaintiff’s, Mr Ahmad’s, release on bail. However, due to the court’s caseload that day, the application was “not reached”. It was adjourned for hearing on 31 March 2017 more than one month after the date previously fixed for a “paper committal” of 24 February 2017.

3. Ms Toomey for the plaintiff argued that the Magistrate’s order was in breach of certain provisions of the Bail Act 2013 (NSW) and I accepted her argument in part. Consequently, I issued an order that prerogative relief in the nature of mandamus issue requiring the Local Court to determine the plaintiff’s bail application before his committal for trial.

4. Before I decide the present application for costs, it will be necessary to say something further about the orders I made on 20 January 2017. It is apparent from the parties’ submissions as to costs (in particular, para 14 of Ms Toomey’s submissions dated 29 January 2017) that they disagree about the effect of my order.

5. To be clear, my order that the plaintiff’s bail application be determined “before his committal for trial” left open the possibility that the application could be heard on the date of the committal. As I understand the parties’ competing contentions, it is common ground that the application should be heard prior to committal. The difference is that the plaintiff sought to have the matter remitted to the Local Court for the release application to be heard forthwith, while the defendant said no urgency was required except that it be dealt with before committal, even if only on the date of committal.

Issue

6. The plaintiff applies for “a specified gross sum” costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The costs are assessed in the sum of $5000 for the work involved: two half-day court appearances in this Court and one and a half days of preparation.

7. Orders were made in favour of the plaintiff on 20 January 2017. Prima facie, since the plaintiff won, the general rule is that costs follow the event: r 42.1 Uniform Civil Procedure Rules 2005 (NSW). The plaintiff invokes this general rule. Mr Low bears the onus of satisfying me that there ought to be a departure from the general rule. He submits that costs should be borne by the parties.

8. The general rule laid down in rule 42.1 may be departed from as a matter of judicial discretion, for good reason. I turn now to the parties’ submissions regarding the appropriate exercise of that discretion.

Submissions advanced by the plaintiff

9. First, in his written submissions dated 29 January 2017, the plaintiff conceded that the DPP was not a maker of the decision from which the plaintiff sought relief. Second, while conceding that the DPP did not affirmatively oppose prerogative relief, which was indeed granted pursuant to s 69 of the Supreme Court Act 1970 (NSW), the plaintiff submitted that this lack of opposition “should not protect the DPP or provide them with immunity against an application for costs”: at para 20.

10. The plaintiff stands on the general rule and says that costs ought to be awarded to him as the successful party. The plaintiff rightly submits that the onus lies on the unsuccessful party to establish a basis for any departure from the usual rule. Reference was made to the Suitor’s Fund Act 1951 (NSW), the relevance of which to the present case is lost on me. It may have been relied upon to demonstrate the reasonableness of the claim.

Submissions advanced by the defendant

11. As I have foreshadowed earlier in these reasons, it was the DPP’s submission that the application for release could be heard on the date of the committal, albeit prior to an order for committal being made. Mr Low submitted that this had also been the position in the Local Court.

12. I accept that the DPP cooperated with the plaintiff, agreeing to be available on any date convenient to the Court during the vacation in order to expedite the matter. The DPP opposed neither the prompt hearing of the application for release nor, in substance, the granting of prerogative relief by this Court. The real dispute concerned the form relief should take.

13. Nonetheless, in considering the defendant’s submission that each party should bear his own costs, I must have regard to the fact that this would constitute a departure from the general rule. I turn now to the applicable law.

Applicable rules

14. The award of costs is a matter of judicial discretion: Civil Procedure Act 2005 (NSW) s 98(1)(a). However, the general rule to be applied is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1 and are to be assessed on the ordinary basis (r 42.2). This general rule is well-entrenched.

15. The plaintiff has placed reliance in its submissions on the High Court decision of Oshlack v Richmond River Council (1998) 193 CLR 72, which provides some useful statements of principle in relation to costs. For instance, McHugh J made the following observations in relation to the discretionary exercise (at para 66):

“By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs.”

16. In my decision in Norfeld v Jones (No 2) [2014] NSWSC 199, I stated that if a Court orders costs on a lump sum basis, as the plaintiff submits in this case, it should do its best to accurately assess the cost actually incurred and not “pluck a figure out of the air”. I am satisfied that the lump sum of $5000 for both court appearances and preparation by Ms Toomey on behalf of the plaintiff is a reasonable sum and not excessive, bearing in mind that these were proceedings brought in a superior court.

Decision

17. In the circumstances of the present case, I can see no reason why the plaintiff ought not be awarded his costs as sought. The defendant has failed to establish good cause to warrant any departure from the general rule as to costs in civil proceedings.

18. I accept that the stance adopted by the DPP was appropriate; the DPP accepted that it was appropriate for the Local Court to determine the matter before committal. However, given the order made by the Local Court, it was necessary for the plaintiff to come to this Court to seek the relief which I granted. He had no other option, and the DPP did not consent as such.

19. It is true that I did not entirely accept the plaintiff’s case as to the order to be made, but the fact remains that the plaintiff won his case. There can be no criticism of the DPP’s approach, but that is not a reason for displacing the general rule.

20. Costs are compensatory, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72 (at [1] per Brennan CJ). As the costs as assessed by the plaintiff’s solicitor are reasonable, and given their modesty, it is convenient to make the specified lump sum order rather than putting the parties to the added expense of assessment in default of agreement.

21. It was not argued that the consideration that these proceedings arose out of criminal proceedings was itself a reason for displacing the general rule.

Orders

22. My orders are:

1. Costs are awarded to the plaintiff and are payable by the defendant.

2. The quantum of those costs is $5000.

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Decision last updated: 08 March 2017