Lewis v Chief Executive Department of Justice and Community Safety (No 2)
[2014] ACTSC 196
•14 August 2014
STEVEN JAMES LEWIS v CHIEF EXECUTIVE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY AND ORS (NO 2)
[2014] ACTSC 196 (14 August 2014)
PROCEDURE – Costs – Plaintiff’s claim only partially successful – Costs are a judicial discretion – Costs will ordinarily follow the event – Exceptions to the rule that costs will ordinarily follow the event – Apportionment of costs – “Head count” of issues in proceedings not appropriate – Usually desirable to apportion costs by fixing a percentage of the costs – Apportionment cannot be done with mathematical precision – Calderbank letter not relevant to the consideration of costs in this instance – Plaintiff should be awarded costs on the issues where he was successful – That the same decision will be made by the decision-maker does not render judicial review futile – Ordinary rule as to costs do not apply in this instance – Costs apportioned
Australian Constitution
Crimes (Sentence Administration) Act 2005 (ACT), ss 59, 69, 75, 79
Sentence Administration Act
Court Procedures Rules 2006 (ACT), rr 1705, 1721, 5405(1)(b), Div 2.17.5
Professor G E Dal Pont, Law of Costs (2nd ed, 2009, LexisNexis Butterworths: Sydney)
Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237
John v Federal Commissioner for Taxation (1989) 166 CLR 417
Australian Competition and Consumer Commission v Australian Safeway Stores (No 2) [2003] FCAFC 163
Australia and New Zealand Banking Group Ltd v Manny (No 5) [2013] ACTSC 244
BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557
Calderbank v Calderbank [1976] Fam 93
Cretazzo v Lombardi (1975) 13 SASR 4
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Elite Protective Personnel v Salmon (No 2) [2007] NSWCA 373
Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145
Hillman v Box (No 4) [2014] ACTSC 107
Hillman v Box (No 5) [2014] ACTSC 150
Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748
Jacka v Australian Capital Territory [2009] HCATrans 151
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Lewis v Chief Executive Department of Justice and Community Safety and Anor (2013) 280 FLR 118
Marrickville Council v Minister for Environment, Sport and Territories (1996) 45 ALD 39
Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81
Orrong Strategies Pty Ltd v Village Roadshow (No 2) [2007] VSC 205
Oshlack v Richmond River Council (1998) 193 CLR 72
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577
Quirk v Bawden (1992) 112 ACTR 1
Ruddock v Vadarlis (No 2) (2002) 115 FCR 229
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213
No. SC 354 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 14 August 2014
IN THE SUPREME COURT OF THE )
) No. SC 354 OF 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:STEVEN JAMES LEWIS
Plaintiff
AND:CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
First Defendant
AND:SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY
Second Defendant
ORDER
Judge: Refshauge J
Date: 14 August 2014
Place: Canberra
THE COURT ORDERS THAT:
The defendants pay thirty-five percent of the costs of Steven James Lewis on a party and party basis.
The date to which the period during which Steven James Lewis may appeal against the orders made on 1 October 2013 is extended under r 5405(1)(b) of the Court Procedures Rules 2006 (ACT) to 11 September 2014.
The plaintiff, Steven James Lewis, was, on 24 January 2008, sentenced for an offence of recklessly or intentionally inflicting actual bodily harm. The sentence was a term of imprisonment for twelve months and the court set the whole of the period of imprisonment to be served by periodic detention.
Mr Lewis failed to attend at the Periodic Detention Centre on a number of occasions and, on 8 July 2008, the Sentence Administration Board (the Board) cancelled his periodic detention. As a result, Mr Lewis was arrested and, on 5 January 2009, commenced serving the balance of the sentence of imprisonment calculated in accordance with s 79 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act).
Mr Lewis challenged the decision of the Sentence Administration Board and on 1 October 2013, I set the decision aside. See Lewis v Chief Executive Department of Justice and Community Safety and Anor (2013) 280 FLR 118.
In doing so, I invited the parties to make submissions as to any consequential orders that were required and also as to costs.
On 17 January 2014, I heard submissions from the parties and reserved my decision.
Both parties sought orders as to costs but, apart from an order under r 5405(1)(b) of the Court Procedures Rules 2006 (ACT), no other consequential orders were sought.
The proceedings
The proceedings were conducted effectively in two parts; the first part challenged the decision of the Board on administrative law grounds and the second part challenged the decision of the Board on constitutional law grounds.
There were a number of challenges to aspects of the decision-making process of the Board under the administrative law challenges. I upheld one of those grounds and dismissed the others.
I dismissed the challenge on the constitutional law grounds.
The two parts of the hearing were quite separate; they were conducted at separate times and, indeed, Mr Lewis was represented by different counsel for each of the two parts of the hearing.
Thus, whilst Mr Lewis was successful in having the decision of the Board set aside, a significantly large part of the challenge that he made was unsuccessful.
It is in this context that the decision as to costs must be made.
Principles as to costs
The awarding of costs in litigation is in broad terms an entirely discretionary matter. The discretion must, of course, be exercised judicially and the result should be fair, having regard to the particular facts and circumstances of the proceedings.
The width of the discretion and the need to reach a fair result also means that the Court has a significant degree of flexibility in reaching its decision and the way in which it is to be resolved and implemented.
These principles have been set out in the Court Procedures Rules where r 1721 provides
1721 Costs – general rule
(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
(2)The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
Some options for flexibility have been set out in the Court Procedures Rules where r 1705 provides
1705 Costs – for issue or part of proceeding
(1)The court may make an order for costs in relation to a particular issue in, or a particular part of, a proceeding.
(2)For subrule (1), the court may declare what percentage of the costs of the proceeding is attributable to the issue or part of the proceeding to which the order relates.
Ordinarily, costs will follow the event, as McHugh J pointed out in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97; [67]. That order is, as his Honour said, “the usual order as to costs”. There are valid and appropriate reasons for that: the successful party has been required to seek the Court’s assistance in order to achieve the outcome it has secured and so should be indemnified for the costs required to do so.
Exceptions to the rule, however, may be classified into various categories.
Thus, a successful party whose conduct extends the litigation unnecessarily or unreasonably may be deprived of its costs caused by such conduct.
The outcome of the proceedings may also be relevant, such as where, as described by McHugh J in Oshlack v Richmond River Council at 98; [70], “in reality, the successful party lost the litigation and the unsuccessful party won”. This may even result in the successful party being ordered to pay the costs of the unsuccessful party.
A less drastic form of such order may be appropriate where the proceedings were affected, such as by being lengthened or made more complex, through the successful party raising separate or additional issues on which issues it was not successful. This is the situation for which r 1705 of the Court Procedures Rules is designed.
The courts have also given due regard to the conservation of the resources available to litigants utilising the courts by encouraging them to resolve the dispute between themselves, thus encouraging the making of reasonable offers of compromise and penalising by various forms of costs orders the failure of the offerer to accept when it would have been reasonable to do so. See Calderbank v Calderbank [1976] Fam 93. I have made comment on some of the relevant principles about costs orders based on this approach in Hillman v Box (No 5) [2014] ACTSC 150.
Apportionment as to costs
In this case, whether the costs of separate issues or some appropriate method of apportionment in respect of them is, it was submitted by the defendants, necessary requires the court to consider such an apportionment approach.
In Australia and New Zealand Banking Group Ltd v Manny (No 5) [2013] ACTSC 244, I considered the question of whether and how such an apportionment should be made. It is clear that such considerations must be viewed from the perspective of a successful litigant and not approached with too clinical an attitude to the proceedings. Thus, it can be accepted that, particularly in cases of complexity, it is unlikely that one party will be successful on all the issues it raises. It is not the function of the Court to apply the detailed and mathematical approach that the community would expect the Australian Taxation Office to apply to the assessment of income tax returns and claims for deduction, rebates and exemptions. The task of the court is not an exercise in the assessment of a bill of costs as provided for under Div 2.17.5 of the Court Procedures Rules.
It may be that, where an issue has been inappropriately or unreasonably raised by the successful party and, in addition, can be identified separately and is distinct in the case a special costs order should be made. See BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [18]-[27].
Thus, while a court “generally does not attempt to differentiate between the issue on which [a party] was successful ... [it may do so where] the particular issue or group of issues is clearly dominant or separable”, as pointed out in Elite Protective Personnel v Salmon (No 2) [2007] NSWCA 373 at [6]. Even where the issues are separable, it would seem to me that, unless they played either a dominant part in the proceedings or extended the hearing or the preparation for it appreciably, it would not usually be in the public interest to make separate costs provisions for such issues. It is not appropriate for the court to comb through the proceedings to separate out issues on which the successful party has not been successful so as, in some way, to moderate the usual order for costs. After all, a successful plaintiff has to come to court to achieve the outcome it did, as a successful defendant is forced to defend the proceedings by participating in the proceedings as it did. Fundamentally, then, the proceedings were necessary and the indemnity that costs provide for them is appropriate because of that.
As Habersberger J pointed out, in Orrong Strategies Pty Ltd v Village Roadshow (No 2) [2007] VSC 205 at [14], issue by issue
is only appropriate in the clearest of cases, where the successful party has wholly failed on a separate and discrete issue or issues.
Thus, it is not appropriate to take a “head count” of the issues in the proceedings, on the basis of the pleadings or the actual conduct of the proceedings themselves, and balance the success or failure of the successful party on that count; the identification of the issue as a separate, discrete issue and its contribution to the evidence adduced or required to be prepared and the effect on the length of the hearing and interlocutory proceedings may result in an appropriate order under r 1705 of the Court Procedures Rules being made. See Hughes v Western Australian Cricket Association (1986) 8 ATPR 40-748 at 48,136; [11]-[14].
A measure of the need to keep a broad approach to the issue may be reflected in the point made in Hughes v Western Australian Cricket Association at [15] that it is usually desirable for the court to apportion the costs by fixing a percentage of the costs rather than leaving the matter to the court office assessing the costs. See Hillman v Box (No 4) [2014] ACTSC 107 at [411]-[412].
As Professor G E Dal Pont pointed out in his valuable text Law of Costs (2nd ed, 2009, LexisNexis Butterworths: Sydney) at p 211; [8.5]
Although imprecise, an intelligently made apportionment of costs may generate an outcome no less fair than an issue-by-issue taxation of costs.
It seems to me that this is an accurate and appropriate comment, though I am not sure that the author’s reference to authority, namely Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272, can be taken to have quite said this. Nevertheless, what the Full Court (Gummow, French and Hill JJ) there said, namely “[m]athematical precision is illusory [in apportionment]” must be right and is supportive to an extent of Professor Dal Pont’s conclusion.
It is not only the case that a successful party may be deprived of its costs in the case of separate issues affecting the usual order as to costs, but the successful party may also be required to pay the costs of the unsuccessful party in an appropriate case. See Ruddock v Vadarlis (No 2) (2002) 115 FCR 229 at 234; [11]; Australian Competition and Consumer Commission v Australian Safeway Stores (No 2) [2003] FCAFC 163 at [6]-[9].
Offer of settlement
I have recently set out at some length the principles in relation to offers of settlement flowing from the decisions in Calderbank v Calderbank and Quirk v Bawden (1992) 112 ACTR 1 in Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145 at [24]-[40]. I do not need to repeat them here. I adopt them and will apply them.
Inutility of the proceedings
The defendants also argued that even though the decision of the Board has been set aside, it will inevitably make the same decision again and, thus, Mr Lewis has not actually achieved what he set out to achieve, namely to avoid being required to serve the balance of his sentence in full-time custody as a consequence of his breaches of periodic detention.
This is because, as a result of my finding, which upheld the validity of the challenged provisions of the Sentence Administration Act, Mr Lewis will, according to the defendants, inevitably be required to serve the balance of his sentence in full-time custody.
This results from his failure to serve in excess of eight detention periods. Under s 69(3) of the Sentence Administration Act, the Board may approve Mr Lewis not performing periods of periodic detention, though the periods so approved extend the period of periodic detention by one period for every such approved period. That sub-section, however, only permits the Board to approve up to eight such periods. Due to this limitation and its power, it could not, by exercising that power, avoid the statutory requirement in s 69(2) of the Sentence Administration Act to cancel the periodic detention Mr Lewis was required to serve; the only other option would be to refer Mr Lewis back to the sentencing court under s 75(5) of the Sentence Administration Act.
That latter provision, however, depends upon the Board finding that Mr Lewis is unable to serve the balance of his periodic detention, having regard to his health or any exceptional circumstances affecting him. It can then refer Mr Lewis back to the sentencing court for re-sentence.
It is arguable that this provision does not apply where s 69 applies, but I am not certain that this is necessarily so. I am also not satisfied that Mr Lewis could not show that he should be referred back to the sentencing court. Thus, the outcome of my decision is, while probable, by no means certain.
In any event, it has not been a principle of law that even where the decision-maker will make a decision in the same terms, following a judicial review of the challenged decision, the decision that has been made in breach of administrative law principles should not be set aside. As Wilcox J said in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 at 597-8
I suppose it is often the case that, a decision having been set aside on judicial review, the decision-maker, after reconsideration, makes a second decision of like effect. But that does not make the order for review futile. There is a substantial public interest in statutory decision-makers making their decisions in accordance with, rather than in disregard of, the law. And there is always the possibility that reconsideration will lead to a different result. The possibility is particularly strong where an aspect of the reconsideration is the articulation of reasons. The discipline of expressing intellectually satisfying reasons not infrequently causes decision-makers to depart from opinions impressionistically formed.
Indeed, it has been said that the court should not assume an outcome: Marrickville Council v Minister for Environment, Sport and Territories (1996) 45 ALD 39 at 45.
In my view, this is not a ground for denying Mr Lewis any costs.
The defendants’ offer
The defendants made an offer on 17 June 2009 in the following terms:
I am instructed to offer a settlement in proceedings SC 353 of 2009 and SC 354 of 2009 on the basis that the plaintiff discontinues the proceedings on terms that:
(a)there be no orders as to costs; and
(b)that the plaintiff not bring proceedings against the defendants or either one of them relating to the matters set out in the amended originating application in SC09/353 or in the statement of claim in SC09/354.
The latter was expressed to be written in accordance with the principles in Calderbank v Calderbank. It does seem to me to fit within those principles.
It was, however, expressed to be open until 4:00 pm six days after the date on which it was written. It was sent by facsimile transmission which suggests, there being no contrary evidence, that it was sent on the date it bears.
This is a relatively short period for which such offers are open. See Hillman v Box (No 5) at [40]-[43]. It seems to me that this was too short a time, especially having regard to the complexity of the issues and, indeed, the number of challenges being made.
It was rejected by Mr Lewis’ lawyers, especially on the ground that the principles in Calderbank v Calderbank did not apply to these proceedings. I am not convinced that this is so.
In any event, the proceedings in SC 354 of 2009 have not been concluded and so it cannot be said that Mr Lewis has not achieved a more or less successful outcome than the offer made in the letter.
I do not think that the letter of offer is relevant to my consideration.
Number of issues on which Mr Lewis failed in the administrative law challenge
It is correct that Mr Lewis only succeeded on one issue in the part of the proceedings that challenged the decision of the Board on the administrative law grounds. That was, however, an important issue of process, namely his appearance before the Board.
The inclusion of another ground, that of the proper delegation to an authorised officer who commenced the proceedings before the Board, was caused by incorrect information initially provided by the lawyers for the defendants. While I found against Mr Lewis on this ground, it was a quite technical issue which it seems to me that Mr Lewis was reasonably entitled, in the light of the incorrect information provided, to have ventilated. Thus, I do not consider this issue was unreasonably raised: Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 at 84.
I do not think that the limited success in the various challenges raised in the administrative law part of the proceedings is reflective of a limitation of the recovery of costs because of the fact that a number of issues which were not upheld were raised.
There is a need, too, to avoid the chilling effect of causing a party to avoid raising issues, which it may be quite reasonable to raise and which are at least arguable, because of the risk that, if the arguments do not succeed, they will be penalised in costs. The effect on proper litigation would be quite undesirable were this to be the result. See Cretazzo v Lombardi (1975) 13 SASR 4 at 16.
In my view there is no reason why Mr Lewis should not have his costs of the administrative law part of the proceedings and I will so order.
Costs of the constitutional law challenge
The part of the litigation which dealt with the question of whether the challenged sections of the Sentence Administration Act were invalid as inconsistent with the Australian Constitution was, however, quite discrete; separate counsel appeared for Mr Lewis, it occupied a different time of hearing and the issues were quite discrete. Mr Lewis failed in the arguments he proferred in this part of the proceeding. There is no doubt in my mind that Mr Lewis should not have his costs for this part of the proceedings. The real question is whether the cost should simply be apportioned for that purpose or whether the defendants should have their costs of this part of the litigation.
The principles have been addressed by Toohey J in Hughes v Western Australian Cricket Association Inc. His Honour referred to the discretion available to a judge deciding on costs and continued (at 48,136):
The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.
1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar(1893) 1 QB 564.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi(1975) 13 SASR 4 at 12.
There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy.
In that decision, his Honour considered that the applicant, having failed on some issues, should not only not have his costs of those issues, but should provide compensation for the costs of the respondent of that part of the proceedings. His Honour, however, achieved this by making an apportionment, ultimately awarding the applicant seventy-five percent of his costs. This approach was approved by the Full Court of the Federal Court in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd at 271-2 with a reference to Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213.
The defendants, however, submitted that, in the light of the response of Heydon J in the High Court in the related matter of Jacka v Australian Capital Territory [2009] HCATrans 151, the argument on the constitutional issue was doomed to fail. Thus, the appropriate order must be that Mr Lewis pay the defendants’ costs of that portion of the proceedings.
That is an attractive argument. The issues were discrete, the hearing was temporally compartmentalised and the ability to identify the preparation for this part of the hearing likely to be readily identifiable.
The challenge to the constitutionality of the provisions, however, was not quite as clear-cut as may have appeared and I had to give much careful thought to them. For example, while the issue of the applicability of Chapter III of the Constitution was apparently resolved by the authorities to which Heydon J referred and which, of course, bound a first-instance judge of this Court, that did not answer the issues argued on the hearing founded on the doctrine expounded in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
Further, it seems to me that I should recognise that, if Mr Lewis were to wish to mount a challenge to the authorities referred to by Heydon J, he had to commence his proceedings in this Court and initially challenge them there, while recognising that I would be bound by them, but thereby preserving his right to take them as far in the judicial hierarchy as he was permitted to go, which may permit them to be challenged in the High Court, where they could be reconsidered if the High Court thought fit: Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 243-4; John v Federal Commissioner for Taxation (1989) 166 CLR 417 at 438-40.
That does not relieve a litigant of the inevitable consequences of raising such an argument. On the contrary, the usual consequences should flow. It does, however, mean that the court should be slow to find that there was some culpable unreasonableness in so doing. In this case, the whole constitutional position of the Territories is in a state of flux and it is not as if the argument is so hopeless that, even in the High Court, it has no reasonable chance of success.
It seems to me, however, that Mr Lewis cannot avoid being penalised in costs in respect of this argument. The question is how that is to be done. It is seductively attractive to order that he pay the costs of the defendants of this part of the case. That was not the approach taken by Toohey J in Hughes v Western Australian Cricket Association Inc. His Honour, despite finding that Mr Hughes should bear the respondents costs of some issues, considered that the appropriate method of achieving this was to apportion the costs.
This has the benefit to both parties of reducing the cost of assessing the costs and avoiding arguments of how much was attributable to which part of the proceedings. It also permits recognition that Mr Lewis had achieved a successful outcome overall, though recognising, at the same time, his failures on significant issues.
The defendants suggested that sixty percent of the case was devoted to the constitutional issues. I cannot agree. There were few, if any, issues of facts in the part of the case directed to those issues and the written material was much less. The hearing took one day (though two had been set aside for it) while the hearing of the administrative law issues took two days, for which there was much evidentiary material.
It seems to me that a proper approach would be to apportion the costs, notionally reducing them for the costs that Mr Lewis should bear of the defendants’ costs of the constitutional issues.
I consider that to order that Mr Lewis recover thirty-five percent of his costs would achieve that result.
Public Interest
Mr Lewis sought to argue that, despite the lack of success on the constitutional issues, he was, in taking the proceedings, acting in the public interest and that special rules applied which justified him instituting the proceedings. The extent of judicial power in the Territory is, he submitted, an important matter of public interest.
It was also submitted that he was an unaided litigant seeking to preserve his liberty against the wishes of the State. He appears to have been denied legal aid because the relevant authorities took the view that he fell between two stools: the ACT authorities considered the matter was a question of Commonwealth law and the Commonwealth authorities thought that it was a question of Territory law.
There is, however, no general and accepted exemption from the ordinary costs rule for so-called “public interest litigation”, as Kirby J pointed out in Oshlack v Richmond River Council at 123; [134].
Professor Dal Pont has summarised the relevant matters that the courts have taken into account when considering that in litigation that may be described as public interest litigation may justify an order other than the usual order.
In Law of Costs at 264; [9.3], he listed the relevant factors as follows:
·the extent to which the plaintiff and defendant were successful in the action;
·where the plaintiff is an individual, whether he or she had any personal, private or financial gain to make from the litigation;
·where the plaintiff is an association, whether its objects have a public character, and whether the litigation was pursued in accordance with those objects and for the purpose of fulfilling them;
·whether there was widespread public interest in the litigation and its outcome, or the case was otherwise designed to effectuate important public policies;
·whether, had the plaintiff succeeded, numerous people would have benefited from the action, whether through a clarification of the law or otherwise;
·whether the plaintiff would have had sufficient economic incentive to file suit even had the action involved only narrow issues lacking general importance.
(Footnotes omitted)
In this case, Mr Lewis sought his own liberty, though that was, of course, a necessary vehicle for raising the issue. Nevertheless, he had a considerable personal stake in the outcome of the proceedings and, indeed, took other proceedings to recover damages.
I am not sure that the outcome of the proceedings, had they been successful, would have provided a great benefit to other people for, while the regime of addressing breaches of orders for periodic detention would have to change, that may not alter the outcome in cases, for the Court may well have, under a new regime, been similarly constrained as was the Board.
Finally, Mr Lewis had an interest over and above the public interest and, even on the administrative law issues, had a personal interest in pursuing the proceedings.
I am not satisfied that this was a case where the ordinary rules as to costs as I have set them out and applied them above should not apply.
Conclusion
In my view the proper exercise of the discretion in this matter is to order that the defendants pay thirty-five percent of the costs of Mr Lewis and I will so order.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 14 August 2014
Counsel for the Plaintiff: Mr J Purnell SC
Solicitor for the Plaintiff: Ken Cush & Associates
Counsel for the Respondent: Mr P Garrisson SC, Solicitor-General for the ACT
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 17 January 2014
Date of judgment: 14 August 2014
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