BP v State of New South Wales (No 2)

[2019] NSWCA 230

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	BP v State of New South Wales (No 2) [2019] NSWCA 230
Hearing dates:	On the papers
Date of orders:	20 September 2019
Decision date:	20 September 2019
Before:	Meagher JA; Payne JA; McCallum JA
Decision:	No order as to costs
Catchwords:	COSTS – appeal – appeal determined without a determination on the merits – further prosecution of the appeal had become futile – both parties acted reasonably – no order as to costs
Cases Cited:	BP v State of New South Wales [2019] NSWCA 223 Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) (2016) 93 NSWLR 704; [2016] NSWCA 375 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
Category:	Costs
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 10 September 2019, this Court delivered its principal judgment: BP v State of New South Wales [2019] NSWCA 223. In what follows, familiarity with that judgment is assumed.

2. In the principal judgment the Court identified a tentative view that there should be no order as to costs of the proceedings. The parties were granted leave to make submissions on that topic. On 11 September 2019, the parties provided short written submissions. The respondent was content that there be no order as to costs of the appeal. The appellant sought an order for costs for preparation after 26 August 2019 and the costs of the hearing on 29 August 2019.

3. The appellant relied upon an affidavit of Rhiannon McMillan affirmed on 11 September 2019. That affidavit explained that Dr Seidler’s report, which was MFI 1 on the appeal, was received by the parties on 26 August 2019. The appellant submitted that it should be awarded costs for the preparation of the appeal undertaken between 26 and 29 August 2019 on the basis that the original evidence available to the respondent from Mr Ardasinski and Ms Terry, together with the report of Dr Seidler, provided cogent evidence of three separate experts who were unable to find any underlying ideological, social or political motivation for the appellant’s conduct.

4. In addition, on 28 August 2019, Ms McMillan had a telephone conversation with a solicitor for the respondent in which she said words to the effect of “Would you please seek instructions on whether the State would be prepared, in view of Dr Seidler’s report, to agree to the appeal being allowed, consent to the orders sought and discontinuing the proceedings? If you agree, we may not seek costs.” The appellant submitted that had the respondent accepted the proposal made on 28 August 2019 to discontinue the proceedings, the costs of the hearing on 29 August 2019 could have been avoided.

Consideration

5. As explained in the principal judgment, this is a case of the kind described in Nicholsv NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 which has been determined otherwise than on the merits as the further prosecution of the appeal had become futile after the operative orders made in the Common Law Division were revoked.

6. To take up the appellant’s submission that the Court examine the reports of Mr Ardasinski and Ms Terry, together with the report of Dr Seidler, to determine whether there was any underlying ideological, social or political motivation for the appellant’s conduct, would be to determine the merits of the appeal. It is tolerably clear that as at 29 August 2019 the respondent was awaiting the report of Dr Eagle before determining what course to take in the underlying proceedings. The respondent acted promptly after receiving that report to bring the case in the Common Law Division to an end. In all the circumstances each party acted reasonably.

7. The “offer” made by the appellant on 28 August 2019 was tentative and not, in its terms, capable of acceptance by the respondent. It is not relevant to the costs determination here.

8. The proper exercise of the costs discretion where both parties have acted reasonably in such a case will usually mean that the court will make no order as to costs of the proceedings: see in particular Nichols at [30] and Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6 making clear that this was a case where further prosecution of the appeal had become futile.

9. This is not a case where it is necessary and appropriate to discern a “clear winner” in the litigation: cfHunter Development Corporation v Save Our Rail NSW Incorporated (No 2) (2016) 93 NSWLR 704; [2016] NSWCA 375 at [79]. As we have said, the evidence establishes that the respondent here was awaiting the psychiatric report from Dr Eagle before deciding what course to take in the underlying proceedings. The proceedings were determined shortly after that report was received. The respondent has been shown to have acted reasonably in the conduct of the aborted litigation.

10. In accordance with principle, this Court should not attempt to determine the merits of the appeal in circumstances where further prosecution of the appeal had become futile. Accordingly, the Court makes no order as to costs.

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Decision last updated: 20 September 2019