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

In El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 3), the plaintiff sought to challenge the right of the Commonwealth Director of Public Prosecutions to prosecute offences under State legislation. The plaintiff's initial proceedings were dismissed, prompting the plaintiff to seek declaratory relief in a separate action. The relief was also refused, and the plaintiff then applied to stay the proceedings in the Court of Appeal. This application was also dismissed. The plaintiff's costs in both proceedings became a matter of dispute.

The primary legal issue was whether costs should follow the event and whether the court should exercise its discretion against awarding costs to the defendant, given that the proceedings were part of the criminal process. The court considered factors such as the nature of the proceedings, the conduct of the parties, and the outcome of the cases in deciding the appropriate costs order.

The court found that despite the criminal nature of the proceedings, the plaintiff's actions were vexatious, and the proceedings were not in the public interest. The court exercised its discretion to award costs to the defendant in both sets of proceedings, given the plaintiff's unsuccessful attempts to challenge the prosecution and the lack of merit in the claims. The court recognised that the proceedings were vexatious and not in the public interest, and therefore, the plaintiff was ordered to pay the defendant's costs in both the initial and subsequent proceedings.

The court's decision emphasised the importance of discretion in awarding costs, particularly in cases involving vexatious litigation. The court found that the plaintiff's actions were not in the public interest and were vexatious, leading to the imposition of costs on the plaintiff in both sets of proceedings. This case serves as a reminder that courts will exercise their discretion to manage costs effectively, particularly in cases that lack merit and are seen as vexatious.