Brown v Australian Capital Territory (No 2)

[2020] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Brown v Australian Capital Territory (No 2)

Citation:

[2020] ACTSC 109

DecisionDate:

4 May 2020

Before:

Murrell CJ

Decision:

Plaintiff to pay defendants’ costs.

Catchwords:

PROCEDURE – COSTS – Whether plaintiff to pay defendants’ costs – Whether there are sufficient public interest reasons to depart from usual costs order

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1721

Human Rights Act 2004 (ACT) s 18(7)

Cases Cited:

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Strano v Australian Capital Territory (No 2) [2016] ACTSC 206; 310 FLR 475
The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; 98 ALD 651

Thompson v The Queen (1989) 169 CLR 1

Parties:

Daniel Wayne Brown (Plaintiff)

Australian Capital Territory (First Defendant)

Magistrates Court of the Australian Capital Territory (Second Defendant)

Representation:

Tony Cullinan Lawyers (Plaintiff)

ACT Government Solicitor (First and Second Defendant)

File Number(s):

SC 109 of 2019

MURRELL CJ:

1. On 3 April 2020, I gave judgment for the defendants in proceedings in which the plaintiff had claimed compensation for breach of s 18(7) of the Human Rights Act 2004 (ACT) (HRA) and damages for false imprisonment. The plaintiff had been arrested and detained in the Australian Capital Territory for an offence that police understood had been committed in the Jervis Bay Territory. In fact, the offence had been committed in New South Wales.

1. Both claims failed because I found that the plaintiff had been lawfully arrested and detained.

1. The plaintiff contended that the Court should exercise its discretion to order that each party pay their own costs. The defendants submitted that costs should follow the event.

1. Pursuant to r 1721 of the Court Procedures Rules 2006 (ACT), costs are in the discretion of the Court. However, the usual order is that costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [67]. Where a matter involves the public interest, that circumstance may justify a court departing from the usual order: Oshlack at [71]. It is a question of whether it can be said that there are sufficient public interest reasons connected with the litigation to warrant a departure from the usual course that a wholly successful defendant will ordinarily be awarded its costs: The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; 98 ALD 651 at [30].

1. In this case, the plaintiff submitted that the proceedings involved a review of administrative action in a human rights context; they were directed at securing a vindication of the plaintiff’s rights, including an important human right. The claim for compensation was an aspect of the larger claim for vindication. The plaintiff’s detention had been unfair, although not unlawful within the meaning of s 18(7) of the HRA. The claim should be viewed as a proper exercise of a public law right that should not be the subject of a costs disincentive.

1. In Strano v Australian Capital Territory (No 2) [2016] ACTSC 206; 310 FLR 475, in which the plaintiff made an unsuccessful claim for compensation under s 18(7) of the HRA, the plaintiff was ordered to pay the Territory’s costs. Penfold J was unconvinced by the defendant’s submission that, as the plaintiff had sought damages, the case could not be characterised as a test case. Nevertheless, her Honour rejected the plaintiff’s assertion that the claim was a test case, noting that a test case was usually one the resolution of which would determine a question in a way that benefited many other people.

1. The present case was not a test case. Nor did it raise a matter of significant public interest. The decision turned on the finding that the plaintiff’s arrest and detention was lawful, which was based on law that was clearly established by Thompson v The Queen (1989) 169 CLR 1. It is not to the point that the plaintiff’s detention may have been “unfair” in a general sense. The defendants were entitled to expect that, as is usual, their complete success would result in an order for costs in their favour.

1. I order that the plaintiff pay the defendants’ costs.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: