BP v State of New South Wales

[2019] NSWCA 223

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	BP v State of New South Wales [2019] NSWCA 223
Hearing dates:	29 August 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Before:	Meagher JA; Payne JA; McCallum JA
Decision:	(1)   Leave to appeal out of time revoked. (2)   Proceedings dismissed.
Catchwords:	APPEALS – nature – entitlement of parties to appeal orders and not reasons – changed circumstances – no operative order which may be the subject of an appeal CRIMINAL LAW – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim supervision orders revoked
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; [1968] HCA 91 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 State of New South Wales v Naaman (No 2) [2018] NSWCA 328 TriCare (Hastings) Limited v Allen [2015] NSWCA 344
Category:	Principal judgment
Parties:	BP (Appellant) State of New South Wales (Respondent)
Representation:	Counsel: S Prince SC / F Graham (Appellant) K Richardson SC / S Dametto (Respondent)   Solicitors: Legal Aid NSW (Appellant) Crown Solicitor’s Office (Respondent)
File Number(s):	2019/00239133
Publication restriction:	The appellant is to be referred to as “BP” pursuant to s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW).
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 699 [2019] NSWSC 806 Date of Decision: 14 June 2019 28 June 2019 Before: Wright J File Number(s): 2019/00149123

Judgment

1. THE COURT: On 31 July 2019, the appellant sought leave to appeal out of time from decisions of Wright J in the Supreme Court in State of New South Wales v BP (Preliminary) [2019] NSWSC 699 and State of New South Wales v BP (No. 2) [2019] NSWSC 806. The appeal was heard in this Court on 29 August 2019 and the decision reserved. In the course of the hearing that leave was granted by the presiding judge.

2. For the reasons that follow leave to appeal out of time should be revoked and the proceedings dismissed.

Relevant facts

3. On 14 June 2019, Wright J made the following relevant orders under the Terrorism (High Risk Offenders) Act 2017 (NSW):

“(1) On the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant is to be referred to in relation to the preliminary hearing in these proceedings only by the letters “BP” and his name is not to be published in relation to the preliminary hearing in these proceedings.

(2) Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017, the Court:

(a)   appoints a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b)   directs the defendant to attend those examinations.”

4. On 28 June 2019, Wright J imposed an interim supervision order in these terms:

“1. Pursuant to ss 27 and 28(1) of the Terrorism (High Risk Offenders) Act 2017, the defendant is subject to an interim supervision order (ISO) for a period of 28 days from the date of this order.

2. Pursuant to s 29 of the Terrorism (High Risk Offenders) Act 2017, the defendant is directed, for the period of the ISO, to comply with the conditions set out in the schedule to these orders. [1]

3.    The parties have liberty to approach the High Risk Offender List Judge for directions and a hearing date for the final hearing of this matter.”

1. It is unnecessary for the purpose of these reasons to reproduce that schedule.

5. On 29 August 2019, this Court heard the appeal from Wright J’s orders. By reason of the delay in commencing the appeal, the first psychological report ordered by Wright J, which was prepared by Dr K Seidler, had already become available and became MFI 1 on the appeal. That report appeared to be inconsistent with the respondent’s case. The Court was informed that the second psychiatric report which had been ordered, from Dr K Eagle, was due to be received by the respondent in the near future. The Court granted leave to the respondent to notify it of any change in the respondent’s position in relation to the underlying proceeding as a result of receiving Dr Eagle’s psychiatric report.

6. On 30 August 2019, Bellew J renewed the interim supervision order:

“TERMS OF JUDGMENT/ORDER MADE BY THE COURT BY CONSENT

1.   An order pursuant to s. 28(7) of the Terrorism (High Risk Offenders) Act 2006 (“the Act”), that the interim supervision order made on 28 June 2019 and renewed on 30 July 2019, is further renewed for a further period of 4 days, to commence on 1 September 2019.

2. An order pursuant to s. 29 of the Act that, for the period of the interim supervision order as renewed, the defendant is to comply with the conditions in the Schedule attached to these orders.”

7. On 3 September 2019, the Court received an email stating:

“Dear Registrar,

I refer to the matter of BP v State of NSW (Ref: 2019/239133) heard before Meagher, Payne and McCallum JAs on 29 August 2019. I note the Court has reserved judgment.

At the conclusion of the hearing, the Court granted leave to the State of New South Wales (“the State”) to communicate its position in respect to the proceedings below (SC Ref: 2019/149123).

I write to indicate that the State intends to discontinue the proceedings in the Division below. The State also agrees to the revocation of the ISO made in respect of the defendant on 28 June 2019 and further renewed on 30 August 2019. The State intends to file the relevant orders with the Supreme Court later today.

I will undertake to provide sealed copies of any orders made in the Division once they are available. Please do not hesitate to contact the parties if you require any further information.

Kind regards,

[Solicitor for the respondent]”

8. Later on 3 September 2019, Bellew J made the following orders:

“Consent to the proceedings being discontinued is given on the following terms:

1.    An order pursuant to s. 31(1) of the Terrorism (High Risk Offenders) Act 2006 (“the Act”), that the interim supervision order made in respect of Defendant on 28 June 2019 and further renewed on 30 August 2019 is revoked.

2.    The Court notes the agreement of the parties that, following determination of costs by agreement or by order of the Court, the proceedings are to be discontinued.

3.    List the matter for directions in relation to costs on a date convenient to the Court and the parties.”

9. On 4 September 2019, the Court communicated to the parties in the following terms:

“Dear Practitioners

Thank you for your email.  Would it be appropriate for the Court of Appeal to make the following proposed orders:

1.   BP has leave to discontinue the appeal with no order as to costs.

2.    Note that the State of NSW will discontinue the underlying proceedings in the Supreme Court following the determination of costs, and that the Interim Supervision Order the subject of the appeal has been revoked.”

10. The respondent consented to the orders identified in that email. On 5 September 2019, the appellant replied:

“Dear Registrar,

Thank you for your email. The defendant does not seek leave to discontinue his appeal. It is respectfully submitted that, notwithstanding discontinuation of further proceedings by the State, the appeal brought by BP should be determined and judgment delivered for a number of reasons.

The order of Wright J of 14 June 2019 appointing two experts pursuant to s.24(5) of the Act was predicated, relevantly, upon findings that:

1.    The defendant is a “convicted NSW terrorism activity offender” (including that he had previously made statements advocating support for violent extremism); and

2.    The defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision of an extended supervision order.

That order has not been revoked. Those expert assessments have taken place and reports have been furnished.

While the matter will not now proceed to a final hearing, the interim finding that the defendant is a “convicted NSW terrorism activity offender” remains. The defendant challenges this finding, and the statutory construction underpinning it. The defendant has a genuine personal interest in having his appeal determined by the Court.

In addition to the personal consequences for the defendant in having a finding that he is a “convicted NSW terrorism activity offender” unchallenged and unresolved on appeal, it is respectfully submitted that there are important questions of statutory construction raised in the appeal that should be determined by the Court in any event.  Resolution of these issues is likely to affect future applications under the Act. The decision of the State to discontinue further proceedings at this point does not resolve the issues in dispute between the parties on appeal. There is, additionally, a live issue of costs at first instance and on appeal and full determination of the appeal may resolve the issue of quantum of costs appropriate.

The State is content with the orders proposed by the Court but does not seek to be heard against the defendant’s position.

The parties are ready to appear or file further written submissions should the Court be assisted by it.

I note that, as a consequence of the State’s discontinuance, there is no longer any relevant date by which orders would need to be made or a judgment on the appeal delivered.

Regards,

[Solicitor for the appellant]”

11. In relation to the appellant’s principal point, that he wishes to challenge the “finding” of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; [1968] HCA 91 per Barwick CJ and Kitto J:

“ … it is of the nature of appeals, as s. 73 of the Constitution recognizes, that they lie only against “judgments, decrees, orders and sentences”, not against reasons. The word “judgments” in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.”

12. The same point has been made on many occasions in this Court. See, for example, TriCare (Hastings) Limited v Allen [2015] NSWCA 344:

“[10] It is well established that a “judgment or order” in the context of s 101(1)(a) of the Supreme Court Act refers to an operative judicial act, i.e., the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; and see the other authorities referred to by Campbell JA, with whom Handley AJA agreed, in Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23] noting his Honour’s observation that while error in a judgment or order might be demonstrated on an appeal by showing error in a judge’s reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment.”

13. In relation to the orders made by Wright J on 14 June 2019:

1. Order 1 is a pseudonym order from which there was no appeal; and

2. Order 2 is now spent.

14. The orders made by Wright J on 28 June 2019 and renewed on 30 August 2019 have been revoked.

15. There is no longer any operative order of the Court which may be the subject of an appeal. There is no occasion for this Court to determine a challenge to the reasons given by Wright J for making orders which have no continuing operative effect.

16. In relation to the appellant’s second suggested reason that this Court determine the appeal despite the change in circumstances, damage to the appellant’s reputation, the appellant was granted a pseudonym “BP” by Wright J and that pseudonym order remains in force. The operative order subjecting the appellant to a deprivation of liberty has been revoked. There is no arguable damage to BP’s reputation in those circumstances and no occasion, in any event, to determine a challenge to the reasons given by Wright J for making orders which have no continuing operative effect.

17. For these reasons the Court makes the following orders:

1. Leave to appeal out of time revoked.

2. Proceedings dismissed.

18. There remains the question of costs. As to the costs of the proceedings below, they should be determined by a judge of the Common Law Division, as the parties contemplate.

19. As to the appellant’s application for an order for costs in this Court, the proceedings have now been resolved without a hearing on the merits. The relevant principles in such a case were summarised recently in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84, applying Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 as follows:

“[26] The relevant principles governing an application for costs in a case which has been resolved without a hearing on the merits were summarised by McHugh J in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624–625; [1997] HCA 6:

“In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. 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.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. 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. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant’s taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

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.” (Some footnotes omitted)

[27] The principles summarised by McHugh J were not new. His Honour drew on numerous decided cases. The principles described by McHugh J in Lai Qin have been followed on many occasions since, including in this court.

[28] In Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302, after referring to the observations of McHugh J in Lai Qin, Davies AJA, with whom Mason P and Meagher JA agreed, observed (at [5]):

“[5] When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs.”

[28] In Muhibbah Engineering (M) BHD v Trust Company Ltd [2009] NSWCA 205, although the court was divided about the outcome, Handley AJA (with whom Young JA agreed) and Sackville AJA (who dissented) agreed about the legal test. In circumstances not dissimilar to the present the award of costs was predicated on the ability of the court to find that one of the parties had acted unreasonably and the other reasonably.

[29] In Shellharbour City Council v Minister for Local Government [2017] NSWCA 256, the court (Basten JA, Macfarlan JA and Sackville AJA) again applied the principles summarised in Lai Qin. The court rejected the application for costs in that case. It was explained that the appellant resistedthe conclusion that the parties should bear their own costs, there having been no determination on the merits, on two bases:

“[6] … The appellant described the Minister’s abandonment of the proposed amalgamation as ‘a complete capitulation.’ It contended that if the appeal had proceeded it would ‘almost certainly’ have succeeded. That was because the appeal which was listed for hearing on the same days, brought by Ku-ring-gai Council on identical grounds, was upheld. Further, it submitted that the Minister had been unreasonable in her conduct of the proceedings.

[7] It should be accepted that both these characterisations, if made good, may provide a basis for awarding costs against a party who has capitulated, as was recognised by Burchett J in One Tel Ltd v Commissioner of Taxation, in a passage cited with approval by Davies AJA (Mason P and Meagher JA agreeing) in Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack. If the appellant made good its claim that, without addressing the merits, this Court could be satisfied that it would have succeeded in any event, it would also be appropriate to set aside the costs order made in the Land and Environment Court and allow the appellant its costs of the trial …

…

[11] The second basis upon which the appellant relied was the ‘unreasonable conduct’ of the Minister …

…

[14] In short, while the appellant obtained the result it sought in the litigation as a result of a political decision by the Government, the resistance by the Minister to the proceedings in the Land and Environment Court was not shown to be unreasonable. It follows that the bases upon which the appellant sought to have its costs, in the absence of a determination of the appeal on the merits, must be rejected.” (Footnotes omitted)

[30] If both parties to a proceeding which has been settled without a hearing on the merits 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.”

20. On the face of it, this is not a case where this Court should make a costs order in favour of the appellant. Both parties appear to have acted reasonably in resolving the underlying proceeding, and it cannot be concluded from the fact that the State has discontinued its claims for final relief that it was not justified in seeking and obtaining the interim orders at issue in the appeal. That different questions arise in relation to such interim and final orders was clearly recognised by this Court in State of New South Wales v Naaman(No 2) [2018] NSWCA 328:

“[17] Broadly speaking, the Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order. There is no necessary inconsistency between the interim orders made in August and September 2018 and the dismissal of the State’s application for an extended supervision order following a final hearing by the primary judge.”

21. On the information presently available to the Court it cannot be concluded that the respondent has capitulated in relation to the interim regime it originally sought. Rather, having received a psychological report and a psychiatric report which appear to be inconsistent with the respondent’s original claim, the respondent has quite properly consented to the revocation of the interim supervision order. In accordance with principle, this Court should not embark on a hearing of the merits of the appeal for the purpose only of addressing the question of costs.

22. On the basis of the material before us we would make no order as to costs of the appeal. However, as the parties have not been heard on this question, if either of them proposes an order other than the order the Court is presently minded to make, leave is granted to each to file written submissions by email to the Associate to Payne JA not exceeding three pages by 4pm on Wednesday 11 September 2019. The Court would then determine the costs question on the papers.

**********

Endnote

Decision last updated: 10 September 2019