El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 3)

[2015] NSWSC 1283

Supreme Court

New South Wales

Medium Neutral Citation:

El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 3) [2015] NSWSC 1283

Hearing dates:

Written submissions

Date of orders:

11 September 2015

Decision date:

11 September 2015

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1. In proceedings 2015/11558, the plaintiff is to pay the costs of the first defendant as agreed or assessed.

2. In proceedings 2015/188030, the plaintiff is to pay the costs of the first defendant as agreed or assessed.

Catchwords:

COSTS – Where plaintiff sought to challenge the right of the Commonwealth Director of Public Prosecutions to prosecute offences against State legislation – Where determination made that the plaintiff was not entitled to the statutory relief sought – Where plaintiff then commenced separate proceedings seeking declaratory relief – Where declaratory relief refused – Where plaintiff then sought a stay of proceedings in the Court of Appeal – Where application for stay refused – Whether the costs should follow the event – Whether discretion should be exercised against an award of costs on the basis that the proceedings formed part of the criminal process – Where there were factors supporting the making of costs orders – Orders made requiring the plaintiff to pay the first defendant’s costs in both proceedings

Legislation Cited:

Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1983 (Cth)
Supreme Court Act 1970

Cases Cited:

El-Ali v Commonwealth Director of Public Prosecutions [2015] NSWCA 255
El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW [2015] NSWSC 671
El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 2) [2015] NSWSC 1134
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
R v Dexter [2002] QCA 540; (2002) 136 A Crim R 276
R v Madden (1995) 85 A Crim R 367
Robinson v Woolworths Limited [2005] NSWCCA 426; (2005) 64 NSWLR 612

Category:

Costs

Parties:

Khoder El-Ali – Plaintiff

Representation:

Counsel:
Mr P Lange - Plaintiff
Mr P Neil SC – First Defendant
Submitting appearance – Second Defendant

Solicitors:
Hanna Legal - Plaintiff
Commonwealth Director of Public Prosecutions – First Defendant
Crown Solicitor for NSW – Second Defendant

File Number(s):

2015/188030

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By a summons filed on 13 January 2015 in proceedings 2015/11558 (“the first proceedings”) the plaintiff sought (inter alia) an order pursuant to s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”) that he be granted leave to appeal against a decision of a Magistrate in the Local Court refusing to discharge him in accordance with s. 61(1)(a) of the Criminal Procedure Act 1986 (NSW). Alternative relief was sought pursuant to the provisions of s. 69 of the Supreme Court Act 1970 (“the SCA”). In seeking such relief, the plaintiff had raised a question of the proper construction of s. 6(1)(m) of the Director of Public Prosecutions Act 1983 (Cth) (“the Act”).

2. I determined that neither form of relief sought by the plaintiff was available: El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW [2015] NSWSC 671. In view of that conclusion, it was not necessary for me to consider the issue of the proper construction of s. 6(1)(m) of the Act.

3. After my judgment in the first proceedings had been delivered, the plaintiff commenced proceedings 2015/188030 (‘the second proceedings”) seeking (inter alia) a declaration that the Commonwealth Director of Public Prosecutions (“CDPP”) had no power pursuant to the Act to carry on the committal proceedings against the plaintiff. Counsel for the plaintiff argued that such an absence of power was a consequence of what was said to be the proper construction of s. 6(1)(m) of the Act. On 19 August 2015 I delivered judgment dismissing the second proceedings: El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 2) [2015] NSWSC 1134. I concluded (inter alia) that the construction of s. 6(1)(m) advanced by counsel for the plaintiff was not open. In reaching that conclusion, I followed the decision of the Queensland Court of Appeal in R v Dexter [2002] QCA 540 where the Court, having considered the question of the construction of s. 6(1)(m), reached a conclusion which was fundamentally at odds with the argument advanced on behalf of the plaintiff.

4. After my judgment in the second proceedings had been delivered, the plaintiff filed a notice of motion in the Court of Appeal seeking a stay of the committal proceedings in the Local Court. Simpson JA dismissed that notice of motion: El-Ali v Commonwealth Director of Public Prosecutions [2015] NSWCA 255. In doing so, her Honour observed (at [14]) that the argument advanced by the plaintiff in relation to the construction of s. 6(1)(m) of the Act appeared to “lack any semblance of merit”.

5. At the conclusion of each of the first and second proceedings I gave the parties the opportunity to provide short written submissions as to costs. The CDPP seeks an order that the plaintiff pay its costs in both proceedings. The plaintiff opposes the making of such orders.

Submissions of the plaintiff

6. Counsel for the plaintiff accepted that I had power to award costs but submitted that the existence of such a power did not lead invariably to the conclusion that it should be exercised to make the orders which are now sought. Counsel acknowledged what he described as the “well known common law presumption” that costs ought follow the event. However he submitted that historically, in criminal proceedings, the principle was that the Crown neither paid nor received costs: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557 per Dawson J. It was submitted that both of the proceedings brought by the plaintiff were properly classified as part of the criminal process, such that no order for costs should be made.

7. It was further submitted that I should adopt the approach which has been followed by the Court of Criminal Appeal in proceedings brought pursuant to s. 5B of the Criminal Appeal Act 1912: see for example Robinson v Woolworths Limited [2005] NSWCCA 426; (2005) 64 NSWLR 612 per Basten JA at [58]. It was submitted that such approach was one which required the proper weight be afforded to the nature of the proceedings, whilst at the same time allowing for a costs order to be made in a case where special reasons warranted such a course being taken. It was submitted that in the present case there were no special reasons why any costs order should be made against the plaintiff and that the most appropriate way in which to dispose of the issue was simply to make no order as to costs.

Submissions of the CDPP

8. It was submitted on behalf of the CDPP that costs ought follow the event, absent the plaintiff being able to point to some factor(s) which warranted some other order being made. It was submitted that in all of the circumstances, the CDPP had a reasonable expectation that it be awarded its costs to compensate for the expense incurred as a consequence of the actions brought by the plaintiff.

9. It was pointed out that the plaintiff had conceded that the jurisdiction of the court to award costs extended to cases which stemmed from existing criminal proceedings. Whilst the CDPP took issue with the proposition that “special reasons” were required to be demonstrated before an award of costs could be made in its favour, it was submitted that such a threshold was met in the present case in any event.

10. It was submitted that the plaintiff had approached the proceedings in a fragmented way, in circumstances where it had been open to him to pursue the relevant issues in one single action. It was submitted that as a consequence of the plaintiff’s decision to proceed in the way in which he ultimately did, additional unnecessary costs and delay were occasioned through no fault of the CDPP. It was submitted that on this basis alone there was justification for the orders sought.

11. It was submitted that the substance of the plaintiff’s principal contention, namely that the CDPP was not empowered to prosecute offences against State legislation, had no merit, particularly in light of the decision in Dexter. It was further submitted that in bringing the two sets of proceedings, the plaintiff was seeking remedies which, even if granted, would have been of no practical utility. In particular, it was submitted that even if the plaintiff had been successful in obtaining one of the forms of relief sought, the practical effect would simply have been that one prosecuting authority (the Director of Public Prosecutions for NSW) would have been substituted for another (the CDPP).

12. In all of those circumstances, it was submitted that in each proceedings I should order that the plaintiff pay the costs of the first defendant, as agreed or assessed.

13. Finally, it should be noted that the CDPP raised for consideration the question of whether the circumstances of the present case warranted either an order for indemnity costs against the plaintiff or alternatively, an order that one or other (or perhaps both) of the plaintiff’s counsel and solicitor pay the CDPP’s costs personally. Ultimately however, the CDPP did not urge the making of either order.

Consideration

14. In my view, there are a number of factors which weigh in favour of an order for costs being made in favour of the CDPP in both proceedings.

15. To begin with, and fundamentally, each and every issue which was argued on behalf of the plaintiff in both proceedings was determined against him. That consideration supports an order for costs being made in favour of the CDPP: R v Madden (1995) 85 A Crim R 367 at 373 per Hunt CJ at CL.

16. Secondly, in the first proceedings I concluded (at [44]) that the Magistrate’s determination did not constitute an “order” for the purposes of s. 53(3)(a) of the Appeal and Review Act and that relief was not available under that section was not available. I further determined (at [50]) that the error asserted by the plaintiff on the part of the Magistrate, even if established, was not error of a kind which supported the granting of relief pursuant to s. 69 of the SCA. It follows from those findings that the first proceedings failed at a fundamental level.

17. Thirdly, I accept the submission made on behalf of the CDPP that the plaintiff’s fragmented approach caused unnecessary delay to be occasioned, and unnecessary costs to be incurred. If the plaintiff wished to seek declaratory and/or injunctive relief based upon what was said to be the proper construction of s. 6(1)(m) of the Act, a prayer for such relief could (and should) have been pleaded in the summons filed in the first proceedings. Approaching the matter in that way would have ensured that the entirety of the issues were determined to finality in the first instance. Such an approach would also have ensured that additional time and costs were not incurred.

18. Fourthly, the entirety of the first and second proceedings brought by the plaintiff lacked any practical utility. As I observed in my judgment in the first proceedings (at [36]) that even if it was determined that the CDPP had no power to prosecute the state offences alleged against the plaintiff, the Magistrate retained a discretion to adjourn the proceedings. The seriousness of the charges against the plaintiff are such that the Magistrate would have given careful consideration to the question of whether the proceedings ought be adjourned so as to allow the Director of Public Prosecutions for NSW to appear and take the matter over. Indeed, it is almost inconceivable that the Magistrate would not have adopted that approach, but would simply have discharged the plaintiff, in respect of a large number of serious offences, for want of a prosecutor.

19. Fifthly, and importantly, I raised this lack of utility in the first proceedings with counsel for the plaintiff. After counsel had articulated his general position, the following exchange took place (at T4 L8):

HIS HONOUR: But he can be prosecuted by the State?

LANGE: Presumably he may be. Maybe.

HIS HONOUR: Right.

20. Counsel’s response amounted, in effect, to a concession that even if the relief sought was granted the prosecution of the charges against the applicant could continue, albeit at the behest of a different prosecutorial authority. That does nothing more than highlight the fact that both proceedings lacked utility.

21. Finally, in determining the second proceedings I concluded that the decision in Dexter should be followed. In that case McMurdo P (with whom Jerrard JA agreed) had interpreted s. 6(1)(m) of the Act in a manner which was fundamentally contrary to the construction advanced on behalf of the plaintiff. Both parties agreed that her Honour’s construction of the section formed part of the ratio of the Court’s decision. Counsel for the plaintiff expressly accepted (at T14 L15) that the decision (in respect of which an application for special leave to appeal to the High Court was refused) was contrary to the position he sought to advance.

22. In my view, all of these factors overwhelmingly support the making of the orders sought by the CDPP.

ORDERS

23. For the reasons set out I make the following orders:

1. In proceedings 2015/11558, the plaintiff is to pay the costs of the first defendant as agreed or assessed.

2. In proceedings 2015/188030, the plaintiff is pay the costs of the first defendant as agreed or assessed.

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Decision last updated: 11 September 2015