Hamzy v Commissioner of Corrective Services and the State of NSW (No.2)

[2020] NSWSC 564

Supreme Court

New South Wales

Medium Neutral Citation:

Hamzy v Commissioner of Corrective Services and the State of NSW (No.2) [2020] NSWSC 564

Hearing dates:

Written Submissions

Date of orders:

15 May 2020

Decision date:

15 May 2020

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   In respect of proceedings 2016/276127, the plaintiff is to pay the defendants' costs as agreed or assessed.

 

(2)   In respect of proceedings 2016/276186, the plaintiff is to pay the defendants' costs as agreed or assessed.

 

(3)   In respect of proceedings 2018/41479, each party is to pay its own costs.

 (4)   In respect of proceedings 2017/177196, each party is to pay its own costs

Catchwords:

COSTS – Discretion to award costs – Where two of four sets of proceedings proceeded to contested hearing – Where plaintiff was unsuccessful in that hearing – Whether costs should follow the event – No basis for altering the general rule that the defendants as the successful parties should have an order for costs in their favour – Each party to pay its own costs in other proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Commonwealth of Australia Constitution Act
Crimes (Administration of Sentences) Act 1999 (NSW)
Judiciary Act 1903 (Cth)
Racial Discrimination Act 1975 (Cth)

Cases Cited:

Hamzy v Commissioner of Corrective Services and The State of New South Wales [2020] NSWSC 414
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Category:

Costs

Parties:

Bassam Hamzy – Plaintiff
Commissioner of Corrective Services – First Defendant
State of NSW – Second Defendant

Representation:

Counsel:
M Finnane QC – Plaintiff
J Emmett and J Edwards – First and Second Defendants

  Solicitors:
Zali Burrows Lawyers – Plaintiff
Crown Solicitor for NSW – First and Second Defendants

File Number(s):

2016/2761272016/2761862017/1771962018/41479

Publication restriction:

Nil

Judgment

1. The plaintiff in this matter brought four separate sets of proceedings against the defendants in which he:

1. sought orders requiring the defendant to do, or to refrain from doing, various things in relation to his custodial management (the judicial review proceedings);

2. challenged the requirement imposed by the defendant that communications to which he (the plaintiff) is a party in custody be conducted in English, on the basis that such a requirement is unlawful by virtue of ss 9(1) and/or 10(1) of the Racial Discrimination Act 1975 (Cth) (the RDA), or alternatively inconsistent with those provisions and thus inoperative, to the extent of the inconsistency, by virtue of s 109 of the Commonwealth of Australia Constitution Act (the Constitution) (the RDA proceedings);

3. sought an order for the return of a USB drive seized from his cell (the USB proceedings); and

4. challenged decisions made by the defendant pursuant to a Behavioural Management Plan which operates in the HRMCC (the BMP proceedings).

2. Only the matters in (i) and (ii) proceeded to a contested hearing. I am now required to resolve the question of costs in respect of all four proceedings. I have had the benefit of written submissions from both parties in that regard.

3. Section 98(1) of the Civil Procedure Act 2005 (NSW) confers a discretionary power on the Court in respect of costs in the following terms:

Courts powers as to costs

(1) Subject to rules of court and to this or any other Act--

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to--

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

(5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996 .

(6) In this section, "costs"include--

(a) the costs of the administration of any estate or trust, and

(b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and

(c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed.

4. The fundamental principle which guides the exercise of the discretion contained in s 98 is that costs should follow the event, and that the successful party is prima facie entitled to his or her costs by way of indemnity against the expense of litigation. [1]

   1. Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25].

The judicial review proceedings and the RDA proceedings

5. Each of these proceedings brought by the plaintiff proceeded to a contested hearing. Both proceedings were dismissed. [2]

   2. Hamzy v Commissioner of Corrective Services and the State of New South Wales [2020] NSWSC 414.

6. The submissions filed on behalf of the plaintiff do not address the question of the costs in either of these proceedings. There is no reason why, the plaintiff having been unsuccessful, that he should not be ordered to pay the defendants’ costs of each proceeding on the usual basis.

The USB proceedings

7. The USB proceedings were proceedings in which the plaintiff sought an order for the return of a USB drive which had been seized from his cell. I was informed at the commencement of the hearing of the judicial review proceedings and the RDA proceedings that the USB proceedings had been resolved on the basis of an agreement between the parties that the USB drive in question, which had remained in the custody of the Court, be returned to the plaintiff's representatives. At that point I made an order dismissing the proceedings and reserved the question of costs.

8. The history of the USB proceedings reflects the fact that the terms in which they were brought were unnecessarily complicated, raised extraneous issues (including issues requiring notice to be given under s 78B of the Judiciary Act 1903 (Cth)) and caused the defendant to incur unnecessary costs. That said, the inescapable fact is that the proceedings were resolved on the basis of the USB which had been seized by the defendant being returned to the plaintiff.

9. In all of these circumstances the appropriate order is that each party pay its own costs of the USB proceedings.

The BMP proceedings

10. It is been submitted on behalf of the plaintiff that an order should be made for costs in his favour in these proceedings on the basis that if Parliament had not amended the Crimes (Administration of Sentences) Act 1999 (NSW) by the insertion of s 65A, the plaintiff would have succeeded in the proceedings. That, in my view, is an entirely speculative proposition.

11. The majority of the costs in the BMP proceedings are essentially referable to the judicial review proceedings and the RDA proceedings. In those circumstances it is appropriate that each party pay their own costs of the BMP proceedings.

Orders

12. For the reasons given I make the following orders:

1. In respect of proceedings 2016/276127, the plaintiff is to pay the defendants' costs as agreed or assessed.

2. In respect of proceedings 2016/276186, the plaintiff is to pay the defendants' costs as agreed or assessed.

3. In respect of proceedings 2018/41479, each party is to pay its own costs.

4. In respect of proceedings 2017/177196, each party is to pay its own costs.

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Endnotes

Decision last updated: 15 May 2020