Australian Broadcasting Corporation v Local Court of NSW (No.2)

[2014] NSWSC 515

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Broadcasting Corporation v Local Court of NSW (No.2) [2014] NSWSC 515

Hearing dates:

Written submissions

Decision date:

05 May 2014

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1. Order the third defendant to pay 75% of the plaintiff's costs of the appeal.

2. Order the fourth defendant to pay 25% of the plaintiff's costs of the appeal.

Catchwords:

COSTS - whether Supreme Court has jurisdiction to make a costs order on an appeal against an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) - proportion of costs to be awarded where several parties involved in proceedings - where one party seeks to defend orders on grounds that were found to be untenable - where party seeks to defend order that was unauthorised by the Court Suppression and Non-Publication Orders Act 2010 (NSW) because it was too wide

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 254
Civil Procedure Act 2005 (NSW), s 98
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 3, s 14
Crimes (Appeal and Review) Act 2001 (NSW), Part 5
Criminal Appeal Act 1912 (NSW), s 17
Legal Aid Commission Act 1979 (NSW), s 42
Supreme Court Act 1970 (NSW), s 23

Cases Cited:

Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713
Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125
Latoudis v Casey (1990) 170 CLR 534

Category:

Costs

Parties:

Australian Broadcasting Corporation (Plaintiff)
Local Court of New South Wales (First Defendant)
Director of Public Prosecutions (Second Defendant)
Tamie Apps (Third Defendant)
Director-General of the Department of Family and Community Services (Fourth Defendant)

Representation:

Counsel:
MA Polden (Plaintiff)
T Molomby SC (Third Defendant)
B Baker (Fourth Defendant)
Solicitors:
Rob Simpson, Australian Broadcasting Corporation (Plaintiff)
Kernaghan & Associates Lawyers (Third Defendant)
I V Knight, Crown Solicitor (Fourth Defendant)

File Number(s):

2013/350723

Publication restriction:

Nil

Judgment

Introduction

1. On 18 March 2014 I published my reasons for setting aside the pseudonym, suppression and non-publication orders made by Stoddart LCM on 23 October 2013: Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 (the principal judgment).

1. I reserved the question of costs since the parties foreshadowed they wished to be heard on the question. It was agreed that the matter did not need to be listed for oral argument but could be determined on the basis of written submissions, the last of which were provided on 2 May 2014.

1. The plaintiff (ABC) seeks an order that 75% of its costs of the appeal be paid by the third defendant (Ms Apps) and 25% by the fourth defendant (the Department). In the alternative it seeks an order that 60% of its costs of the appeal be paid by Ms Apps, 25% by the Department and 15% by the second defendant (the DPP).

1. The DPP contended that there ought be no order as to costs against it because he had filed a submitted appearance at an early stage.

1. Ms Apps contended that the applicable legislative regime would create anomalies if orders for costs were made in proceedings such as these and that there were strong policy reasons for concluding that there was no jurisdiction to order costs. In the alternative she submitted that there were strong discretionary grounds for not making a costs order in the present appeal.

1. The Department accepted that I had power to make a costs order but submitted that no order should be made against it because of its limited participation in the proceedings and the need for it to be a party to the appeal to protect the identity of informers.

Jurisdiction to make a costs order

Relevant legislation

1. Section 14 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) provides:

Appeals

(1) With leave of the appellate court, an appeal lies against:

(a) a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or

(b) a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2) The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.

(3) Each of the following persons is entitled to appear and be heard on an appeal under this section:

(a) the applicant for the suppression order or non-publication order,

(b) a party to the proceedings in which the order or decision subject to appeal was made,

(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d) a news media organisation,

(e) any other person who, in the appellate court's opinion, has a sufficient interest in the decision that is the subject of appeal.

(4) On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.

(5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(6) If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court's decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review.

1. Section 3 defines "court" as follows:

"3 Definitions

...

(a) the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children's Court, or

(b) any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act."

1. Section 17(1) of the Criminal Appeal Act 1912 (NSW) (which relevantly provides for appeals to the Court of Criminal Appeal from convictions entered and orders made in, or following, trials on indictment) provides:

17 Costs of appeal

(1) On the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side.

1. Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) provides for appeals to this Court from the Local Court. There is no applicable provision that qualifies this Court's jurisdiction to order costs on such appeals.

Parties' submissions on the jurisdictional question

1. Mr Molomby SC, who appeared on behalf of Ms Apps, relied on the broad categories of persons who are entitled to appear and be heard on an appeal in support of the submission that the orders under the Court Suppression and Non-Publication Orders Act principally concern the public interest and that orders for costs ought not be made for that reason. He also contended that an "appellate" court could be any number of courts and that each court had different jurisdiction as to costs. He submitted that this circumstance made it unlikely that Parliament intended that costs ought be awarded in appeals against suppression or non-publication orders. He also argued that the prospect of a large number of media organisations appearing on an appeal would make it anomalous and arbitrary for the unsuccessful party to be burdened by a costs order in favour of them all.

1. Mr Molomby also relied on what he contended was the anomaly that, if Ms Apps were committed for trial and a suppression or non-publication order were made at a later stage, no costs could be ordered on any appeal because the appropriate appellate court in that event would be the Court of Criminal Appeal and no costs orders could then be made: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125 (Fairfax v Ibrahim).

1. The DPP did not contend that I did not have jurisdiction to make a costs order.

1. The Department accepted that I had jurisdiction to make a costs order.

Reasons on the question of jurisdiction

1. Because Ms Apps submitted that it would be anomalous to make a costs order in the context of the Court Suppression and Non-Publication Orders Act, it is necessary to examine the nature of the jurisdiction to award costs and to determine whether the Act implicitly excludes the making of a costs order.

1. Although the Court Suppression and Non-Publication Orders Act does not make provision for costs, the Act picks up the jurisdiction and procedure of the various courts which become "appellate courts" within the meaning of s 3.

1. Where the relevant appellate court is the Court of Criminal Appeal, rather than a single judge of this Court, the Criminal Appeal Act applies, as it did in Fairfax v Ibrahim, and any appeal is subject to s 17(1) of the Criminal Appeal Act. In those circumstances there is no power to make a costs order for the reasons set out by Basten JA (Bathurst CJ and Whealy JA agreeing) at [104]:

"These being criminal proceedings, it would not be appropriate to make an order for costs against the parties to the proceedings. There is no indication in the Suppression Orders Act that this Court should exercise any power to award costs. There is no reason to treat the costs of these proceedings as otherwise

than costs of proceedings "preliminary or incidental" to an appeal and thus subject to the no costs regime provided by s 17(1) of the Criminal Appeal Act."

1. Accordingly, the reason why no costs can be ordered where the Court of Criminal Appeal is the "appellate court" within the meaning of s 14 of the Court Suppression and Non-Publication Orders Act, is that, as a matter of statutory construction, s 17(1) of the Criminal Appeal Act prevents the Court of Criminal Appeal making a costs order in an appeal or in proceedings "preliminary or incidental" to an appeal. However, s 17 does not apply to the present appeal.

1. The relevance of the Criminal (Appeal and Review) Act 2001 to the present appeal is that, by Part 5, it makes provision for the court by which an appeal may be brought from a final order made by the Local Court. Section 14(2) of the Court Suppression and Non-Publication Orders Act makes this Court the "appellate court" for orders made in the Local Court under that Act. On an appeal to this Court from final orders of the Local Court, this Court has jurisdiction to order costs, including with respect to summary criminal proceedings: see, for example, Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713.

1. In my view, the Court Suppression and Non-Publication Orders Act neither expressly nor implicitly excludes the making of costs orders on appeals from such orders.

1. Accordingly, whether I make such an order for the costs of the present appeal is a matter of discretion, rather than jurisdiction, since this Court has inherent jurisdiction and power under s 23 of the Supreme Court Act 1970 (NSW) and power under s 98 of the Civil Procedure Act 2005 (NSW) (because these proceedings are "civil proceedings" within s 3 of the Civil Procedure Act) to order costs. There is no statutory provision to the contrary.

1. It may be thought anomalous that no costs order could be made if Ms Apps had already been committed for trial since any appeal would lie to the Court of Criminal Appeal. However, if there be an anomaly, it is the result of the applicable legislation. I do not consider there to be any ambiguity in the governing legislation which would justify my confining this Court's power to order costs by reference to legislation which does not apply to the present appeal.

Whether a costs order ought be made

Parties' submissions

1. The ABC submitted that Ms Apps and the Department formulated, obtained and defended on appeal, orders which I found ought not to have been made. It submitted that costs ought follow the event and that the fact that party had acted in good faith or what it perceived to be in the public interest ought not deprive the successful party of its costs: Latoudis v Casey (1990) 170 CLR 534 at 569.

1. Mr Polden, who appeared on behalf of the ABC, submitted further that it would be antithetical to the public interests in open justice and free speech for the ABC to be required to bear the burden of setting aside invalid orders. Mr Polden further submitted that it would be neither just nor reasonable to deprive the ABC, which has secured the vacation of orders which had no basis in law and which placed it at jeopardy of prosecution, of its costs of doing so.

1. Ms Langley submitted on behalf of the DPP that his limited role in the orders set aside and the time at which he filed a submitting appearance on the appeal means that it would not be appropriate to order him to pay any part of the ABC's costs.

1. Mr Molomby relied on the same matters as he had raised with respect to jurisdiction set out above, as being relevant to the exercise of my discretion to decline to make a costs order, if I were persuaded that I had jurisdiction to make such an order. In addition, he submitted that, because the proceedings are wholly concerned with the public interest, it would not be appropriate to make a costs order.

1. Ms Baker submitted on behalf of the Department that the plaintiff ought not have an order for costs in its favour against the Department because, although the ABC succeeded in having the informer order set aside, it was not set aside on the principal ground for which the ABC contended: namely, that it covered the same ground as the statutory provision, but rather because it was too wide in its terms and was therefore not "necessary" within the meaning of s 8 of the Court Suppression and Non-Publication Orders Act: see [75]-[81] of the principal judgment.

1. Ms Baker submitted that the Department has a particular role in ensuring the protection of persons who provide information relating to child abuse. Its participation in the proceedings was of assistance to the court and meant that its contribution was greater than had it represented the general public interest. She submitted that given the public interest nature of the litigation, and in circumstances where the plaintiff was unsuccessful on the dominant ground argued in the proceedings below and in this Court, and did not clearly articulate the argument on which the informer order was ultimately set aside, it would not be appropriate for costs to follow the event. Rather, it would be appropriate for no order to be made against the fourth defendant.

1. The ABC submitted in response that the width of the informer order was always relied upon by the ABC. It also contended that the Department did not rely on the provision for "lawful excuse" in s 254 of the Children and Young Persons (Care and Protection) Act1998 (NSW) as a reason why the informer order did not replicate a statutory provision at the hearing before the Magistrate when the informer order was made.

Reasons

1. I accept the ABC's submissions that it is appropriate that an order for costs be made in its favour. The ABC was the only active contradictor to orders which ought not to have been made. By its appeal, it has fulfilled the evident purpose of permitting media organisations to appear in proceedings where orders are sought under the Court Suppression and Non-Publication Orders Act, or where there is an appeal against such orders. That it has fulfilled a task which might be regarded as one which advanced the public interest is a reason to order costs in its favour, not a reason to deprive it of the benefit of such an order. Costs ought, in my view, follow the event. The question remains: which party or parties ought bear the ABC's costs?

1. The DPP's relevant involvement in the Local Court was largely confined to the pseudonym orders. He did not take an active part in these proceedings and filed, at an appropriate stage, a submitting appearance. I accept the DPP's submissions that he ought not be required to pay the ABC's costs.

1. I do not accept that there is any anomaly or injustice in making an order for costs against Ms Apps. That she is legally aided is irrelevant to the making of an order: s 42 Legal Aid Commission Act 1979 (NSW). She propounded and obtained orders, which I have found ought not to have been made, and sought to defend them in this Court. Her interest was not that of the public. She was concerned, in her own interests, to minimise the publicity surrounding her own committal and to silence the press to the greatest extent possible. Since she sought to defend all orders on grounds that I found to be untenable, it is appropriate to order her to bear the lion's share of the costs.

1. The Department is in a different position. It appeared as part of its charter to protect the public interest in preserving the confidentiality of informers. The submissions made by Ms Baker orally at the hearing and in writing on the costs argument and the written submissions made by Ms England for the appeal were both comprehensive and helpful. Ms Baker persuaded me that the informer order did not replicate a statutory provision because of the reference to "lawful excuse" in s 254 of the Children and Young Persons (Care and Protection) Act.

1. Nonetheless, the Department sought to defend the informer order as originally made for most of the appeal. The order which the Department ultimately propounded in the appeal was not authorised by the Act because it was, for the reasons given in the principal judgment at [79]-[80], too wide. It would have been different had the Department propounded a narrower order, limited to identified informers, but it did not. In these circumstances, I consider that the Department ought bear 25% of the ABC's costs of the appeal.

Orders

1. I make the following orders:

(1)   Order the third defendant to pay 75% of the plaintiff's costs of the appeal.

(2)   Order the fourth defendant to pay 25% of the plaintiff's costs of the appeal.

**********

Decision last updated: 06 May 2014