Knight v Commonwealth of Australia (No 4)

[2017] ACTSC 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Knight v Commonwealth of Australia (No 4)

Citation:

[2017] ACTSC 42

Hearing Date(s):

Decided on written submissions

DecisionDate:

24 February 2017

Before:

Mossop J

Decision:

Order 3 made on 13 January 2017 takes effect.

Catchwords:

PRACTICE AND PROCEDURE — COSTS — Usual rule as to costs — Self represented prisoner seeking extension of time in which to bring personal injury claim — application dismissed — whether departure from usual order as to costs warranted in the circumstances

Legislation Cited:

Court Procedure Rules 2006 (ACT) 

Cases Cited:

Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 1419

Knight v Commonwealth (No 3) [2017] ACTSC 3

Knight v Hastings (No 2) [2012] VSC 423

Knight v Secretary Department of Justice (Re Costs) [2004] VSC 29

Milne v Attorney-General (Tas) (1956) 95 CLR 460

Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 1170

Oshlack v Richmond River Council (1998) 193 CLR 72 at 97

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212

Parties:

Julian Knight (Plaintiff)

Commonwealth of Australia (First Defendant)

Craig Colis Thorp (Second Defendant)

Philip John Reed (Third Defendant)

Solicitors

Self-represented (Plaintiff)

Australian Government Solicitor (Defendants)

File Number(s):

SC 176 of 2014

MOSSOP J:

Introduction

1. The plaintiff’s application for an extension of time in which to bring proceedings against the defendants was dismissed on 13 January 2017: Knight v Commonwealth (No 3) [2017] ACTSC 3. As part of that decision I ordered that the plaintiff pay the defendant’s costs. At the time the judgment was pronounced I made orders permitting the plaintiff to be further heard in relation to the costs order if the wished to. In the event that he wished to be heard, the costs order that I made (order 3) did not take effect until further order of the Court. The plaintiff notified my associate that he wished to be heard in relation to costs. The plaintiff has now made submissions in relation to costs and the defendants have replied to those submissions.

Submissions

1. The plaintiff accepted that as a general rule a wholly successful defendant should receive an order for costs unless good reason is shown to the contrary: Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. He submitted, however, that in the present case the justice of the case warranted a departure from the normal rule. He put forward a number of matters which he submitted amounted to special circumstances or sufficient reason for departing from the normal rule. The circumstances that he identified in his written submissions were:

(a) The plaintiff was unrepresented having been denied a grant of legal assistance from ACT Legal Aid and pro bono assistance from the ACT Law Society’s Pro Bono Clearing House.

(b) The plaintiff is in lawful custody interstate and has been so since 9 August 1987.

(c) The plaintiff is impecunious, has no assets and is unlikely to ever have any assets.

(d) The plaintiff’s application was brought and prosecuted in good faith.

(e) The plaintiff’s complaints that formed the cause of action in the instant proceedings were not prosecuted by ACT Police despite a signed Statement by the plaintiff.

(f) The Defence Abuse Response Task Force found that the plaintiff’s complaints constituted plausible allegations of abuse and that the plaintiff’s allegations had been mismanaged by Defence, but the plaintiff was denied any Reparation Payment due to the directions of the Minister for Defence and Minister for Justice.

(g) The plaintiff’s action was, in the light of the failure of the ACT Police to prosecute and the DART’s refusal to make a Reparation Payment, the only avenue open to the plaintiff of obtaining reparation for documented abuse.

(h) The plaintiff was prepared to settle proceedings and made an offer of settlement prior to the hearing of the application.

1. In relation to paragraph (c) the plaintiff accepted that an unsuccessful party’s inability to meet a costs order is not by itself sufficient to warrant a departure from the normal rule as to costs: Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 but submitted that permanent impecuniosity of the unsuccessful party rendered the making of a costs order futile: Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 1419.

1. The defendant has made submissions directed to each of the matters put forward by the plaintiff.

Consideration

1. Rule 1721 of the Court Procedure Rules 2006 (ACT) provides that the costs of proceedings or of an application in proceedings are in the discretion of the Court.  The plaintiff has correctly identified that there must be sufficient reason to depart from the usual order as to costs, namely, that costs follow the event.

1. For the reasons which follow I do not consider that the matters put forward by the plaintiff warrant a departure from the usual rule.

1. (a) Unrepresented plaintiff: The plaintiff is correct in identifying that he was unrepresented.  There is no evidence in relation to his application for or denial of legal assistance by ACT Legal Aid or of pro bono assistance from the ACT Law Society Pro Bono Clearing House.   There is no evidence as to what if any advice the plaintiff received prior to commencing proceedings.  The mere fact that the plaintiff was unrepresented is not a factor which weighs against the application of the usual rule.

1. (b) Plaintiff in custody: The fact that the plaintiff is presently incarcerated and has been since 9 August 1987 is not a fact which tells against the application of the usual rule.  There is no general principle that costs orders should not be made against prisoners: Knight v Secretary Department of Justice (Re Costs) [2004] VSC 29 at [17]; Knight v Hastings (No 2) [2012] VSC 423 at [14].

1. (c) Impecuniosity: The plaintiff’s impecuniosity and likely future impecuniosity is not a factor which necessarily tells against the application of the usual rule.  It is certainly a factor which may influence whether or not the successful defendants seek to enforce the judgment now or at some time in the future.  However in Yilan v Minister for Immigration and Ethnic Affairs [1999] FCA 1212 a Full Court of the Federal Court said: “As to the inability to meet a costs order this has never been sufficient reason to deny a successful party his or her costs, special reasons apart: Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 1170”; see also Knight v Hastings (No 2) [2012] VSC 423 at [17]. In Zamora a Full Court of the Federal Court recognised that notwithstanding the making of a costs order the Minister may determine as a matter of discretion whether or not to take steps to enforce the order.  The decision in Islam, relied upon by the plaintiff does not support departing from the usual rule.  Rather, it recognises, consistently with Zamora that it is for the beneficiary of the costs order to determine whether it should be enforced.

1. (d) Good faith: As pointed out in the principal judgment the defendants argued that the application itself was an abuse of process.  Although I was not satisfied that the claim was an abuse of process I did accept that one of the reasons that the plaintiff was pursuing the matter was in order to further his plan for a transfer from the Victorian prison system to that of the Australian Capital Territory.  I do not consider that the existence of good faith is a matter which would take the case outside the usual rule.  If the case was brought in “bad faith” or amounted to an abuse of process then that would clearly be a strong factor in favour of an order for costs or an order for costs on a better than usual basis.  However the absence of those circumstances does not of itself provide a basis for departure from the usual rule: Knight v Hastings (No 2) [2012] VSC 423 at [6].

1. (e), (f), (g) Police and DART: The various submissions about the prosecution of charges alleged to arise out of the events the subject of the plaintiff’s claim and the manner in which the Defence Abuse Response Taskforce application has been dealt with are not factors which would warrant a departure from the usual rule.  It is usually the case that a claimant has no source of remedy or vindication other than through the bringing of proceedings.  The fact that the plaintiff may have had some hope that the police might, if able, take action upon his complaint or that he may be the beneficiary of an ex-gratia scheme of compensation are matters which are only unusual because they existed in the first place rather than because they have been denied to the plaintiff.

1. Settlement offer: The existence of a settlement offer is a matter which clearly could be relevant to the question of costs. However the plaintiff has not achieved an outcome as favourable or more favourable than he offered. The terms of the offer was set out in the principal judgment at [220]. It is clear that the offer was designed to further not the purpose of recovering compensation but instead the collateral purpose of promoting the prospects of a transfer from the Victorian prison system to that of the Australian Capital Territory. It is not a matter which favours departure from the usual rule.

1. As I have indicated each of the factors identified by the plaintiff is not a factor favouring a departure from the usual rule.  Considering them as a whole they do not satisfy me that there should be a departure from the usual rule.  On the contrary I am positively satisfied that this is a case where the usual rule is the appropriate outcome in relation to costs.

Order

1. The order of the Court is

1. Order 3 made on 13 January 2017 takes effect.

I certify that the preceding [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 24 February 2017