McMillan v Director-General of Communities NSW

[2009] NSWSC 1440

CITATION:	McMILLAN & ANOR v DIRECTOR-GENERAL OF COMMUNITIES NSW [2009] NSWSC 1440
HEARING DATE(S):	15 and 16 October 2009
JUDGMENT DATE :	18 December 2009
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
DECISION:	(1) Order 4 made by the Court (Harrison J) on 10 August 2009, as varied by order 1 made on 13 August 2009, be vacated. (2) The summons filed on 10 August 2009 is dismissed. (3) The plaintiffs are to pay the defendant’s costs of the proceedings on the ordinary basis.
CATCHWORDS:	PROCEDURE - whether declaration should be granted - where the making of a declaration would have no utility - costs - where plaintiffs succeeded on one issue - whether the defendant had surrendered - general rule - costs follow the event
LEGISLATION CITED:	Broadcasting Services Act 1992 (Cth) Liquor Act 2007 Migration Act 1958 (Cth)
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 373 McMillan v Director General of Communities NSW [2009] NSWSC 1236 One.Tel Limited v Commissioner of Taxation (2000) 101 FCR 548 Oshlack v Richmond River Council (1998) 193 CLR 72 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Re Refugee Review Tribunal; Ex parte Aala (2000 204 CLR 82
PARTIES:	Nathan McMILLAN & ANOR v DIERCTOR-GENERAL OF COMMUNITIES NSW
FILE NUMBER(S):	SC No 30069 of 2009
COUNSEL:	P: M Allars D: J Griffiths SC/M Nagy
SOLICITORS:	P: Bruce Stewart Dimarco D: Crown Solicitors Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HALL J

FRIDAY 18 DECEMBER 2009

No 30069 of 2009

NATHAN McMILLAN & ANOR v DIRECTOR-GENERAL OF COMMUNITIES NSW

JUDGMENT
(On costs)

1 HIS HONOUR: On 18 November 2009 judgment was delivered: McMillan v Director General of Communities NSW [2009] NSWSC 1236. On that date, I directed the parties to provide short minutes of order to give effect to the reasons for judgment and to provide an opportunity for the parties to make submissions on costs. Written submissions as to the orders to be made and costs were received.

2 The proceedings concerned two complaints made respectively by the Commissioner of Police and Manly Council each pursuant to s.79(1) of the Liquor Act 2007 to the Director General of Liquor and Gaming that the quiet and good order of the neighbourhood of certain licensed premises in Manly were being unduly disturbed. The Steyne Hotel and Shore Club Hotel were two hotels named in the Police Complaint. The plaintiffs are the licensees of those two hotels. The then Director General, Mr Albert Gardner, decided to convene a conference pursuant to s.80 of the Liquor Act.

3 The plaintiffs challenged the validity of the Police and Council Complaints, and the decision made by the Director General to convene, and to later extend the conference. Relief was also sought in respect of trading figures of the Steyne Hotel disclosed by the Director to other licensees of hotels referred to in the Police Complaint.

4 The plaintiffs sought the following relief in the Summons filed 10 August 2009:-

“RELIEF CLAIMED

The plaintiff claims:

1. A declaration that the documents comprised of an undated letter from Superintendent David Darcy received on 29 May 2009 by the Defendant (the "Defendant" throughout these grounds includes the Defendant's delegates, and the Director of Liquor and Gaming, who on 27 July 2009 was succeeded by the Director-General of Communities NSW), a minute prepared by Sergeant B Roeder dated 14 April 2009 and a statutory declaration signed by Superintendent Darcy on 14 April 2009 (“ the Police Application ”), is not a valid complaint for the purposes of s.79 of the Liquor Act 2007 (NSW) (“ the Act ”).
2. A declaration that the documents comprised of a letter dated 8 May 2009 from Henry Wong, General Manager of Manly Council (“ the Council ”), to the Defendant, a letter dated 17 July 2009 from Lisbeth Lawson to the Defendant and a statutory declaration signed by Henry Wong on 8 May 2009 (“ the Council Application ”), is not a valid complaint for the purposes of s.79 of the Act.
3. A declaration that the Defendant's decision, contained in:


(a) a letter dated 13 July 2009 from the Defendant to the First Plaintiff, the licensee of the Steyne Hotel Manly, and

(b) a letter dated 13 July 2009 from the Defendant to the Second Plaintiff, the licensee of the Shore Club Hotel,

to convene a conference pursuant to s 80 of the Act to be held on 28 August 2009 (“ the Conference ”) to hear submissions relating to the Police Application and the Council Application (“ the Conference Decision ”) was made in excess of the Defendant's jurisdiction.

4. In the alternative to clause 3(b), a declaration that the Defendant’s decision conveyed to the Second Plaintiff by letter dated 4 August 2009, to extend the Conference to include the licensed premises at the Shore Club Hotel, Manly (“ the Extension Decision ”), was made in excess of the Defendant's jurisdiction.

5. Further in the alternative to clause 3(b), a declaration that in making the Extension Decision the Defendant denied the Second Plaintiff procedural fairness.

6. A declaration that the conduct by the Defendant of the Conference pursuant to s.0 of the Act is infected by apprehended bias.

7. An order in the nature of prohibition prohibiting the further implementation of the Conference Decision, the Extension Decision, the conduct by the Defendant of the Conference, or the exercise of power under s.81 of the Act, on the ground of jurisdictional error.

8. An order pursuant to s.65 of the Supreme Court Act 1970 (NSW) that the Defendant perform his duty under s.17(1) of the Casino, Liquor and Gaming Control Authority Act 2007 (NSW) ("the Casino Act) by taking steps to recover documents which contain the First Plaintiff's trading figures, which were (a) provided to the Defendant by the First Plaintiff under s.21 of the Casino Act, and (b) subsequently, in breach of s.7(1), provided by the Defendant to the other licensees with the Police Application.
9. Costs.

AND BY WAY OF INTERLOCUTORY ORDERS

10. An injunction restraining the Defendant from acting in breach of s.17 of the Casino Act by taking any further steps directly or indirectly to divulge to another person information which consists in trading figures of the First Plaintiff, obtained by him as evidence provided in support of the Police Application.

11. An injunction to restrain the Defendant from:


(a) holding in public any part of the Conference which concerns matters which are the subject of pending criminal proceedings against the Plaintiffs;

(b) asking the Plaintiffs questions at the Conference, whether in public or confidential private session, which concern matters which are the subject of pending criminal proceedings against the Plaintiffs; or
(c) making a determination under s.81 of the Act until pending criminal proceedings against the Plaintiffs have been concluded.

12. An injunction restraining the Defendant from taking any further steps to conduct the Conference on 28 August 2009, or to conduct any conference at a later date based on the Police Application or the Council Application .”

5 I made the following findings in respect of the grounds of relief sought in the Summons:-

(1) The Police Complaint was a valid complaint (paragraph [118]).

(2) The Council Complaint was defective in substance in failing to identify any licensed premises by an appropriate description (paragraphs [119]-[120]). However, the defect in Council Complaint did not have any practical outcome (paragraph [120]).

(3) As the Police Complaint was valid, it was open to the Director or his delegate to convene a conference under s.80(1) of the Liquor Act (paragraph [125]).

(4) The extension decision did not involve a denial of procedural fairness (paragraph [151]).

(5) There was no basis upon which it could be said a reasonable apprehension of bias could arise from the provision of legal services provided by Mr Freeman (paragraph [198]).

(6) Mr Gardner’s and Mr Freeman’s involvement in the investigations, inquiries and processes leading to the charges was not incompatible with the performance of the Director’s statutory responsibilities (paragraph [190]).

(7) It was not established that any of the communications disclosed by Mr Rogerson supported the claim that the plaintiffs had been denied procedural fairness (paragraph [207]).

(8) The plaintiffs were not denied procedural fairness insofar as the complaints failed to contain allegations and particularise the precise factual matters said to form the basis for the complaints (paragraph [211]).

(9) There was no denial of procedural fairness in respect of the conduct of the conference (paragraphs [218]-[219]).

(10) Any risk of interference in the administration of justice was effectively removed by the assurance given in Mr Freeman’s letter of 4 August 2009 (paragraph [246]).

(11) The disclosure of the trading figures could be properly considered as ancillary to the performance of the Director’s statutory functions and within the exception to the prohibition on disclosure (paragraph [273]).

The plaintiffs’ submissions

6 The plaintiffs submitted that relief ought to be granted in terms of Prayer 2 of the Summons. It was contended that the terms of the order were to be framed in the following manner, as provided in Order 1 of the plaintiffs’ short minutes of order:-

“ The Court declares that the documents comprised of a letter dated 8 May 2009 from Henry Wong, General Manager of Manly Council, to the predecessor of the Defendant, the Director of Liquor and Gaming, a letter dated 17 July 2009 from Lisbeth Lawson to the Defendant and a statutory declaration signed by Henry Wong on 8 May 2009, is not a valid complaint for the purposes of s.79 of the Liquor Act 2007 (NSW)”

7 The reason for granting a declaration in the terms of order 1 was that it has “utility” as described in the decisions of Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Re Refugee Review Tribunal; Ex parte Aala (2000 204 CLR 82. In the plaintiffs’ submission, such an order would determine a matter which is not hypothetical but which is a legal controversy as to whether the Council Complaint fell within s.79(1) of the Liquor Act: see Ainsworth (supra) at 582.1-582.4, 596.5-596.8. Declaratory relief in this respect would have the consequence of preventing the parties from treating the Council Complaint as a valid complaint in the disturbance proceedings: see Aala (supra) at [57]-[58].

8 In support of the proposed Order 1, reliance was placed upon the decision in Project Blue SkyInc v Australian Broadcasting Authority (1998) 194 CLR 355. In that case, the ABA determined a standard, which required Australian material to be at least 50% of all programming. The Australian Content Standard was inconsistent with the Trade Agreement and Protocol between Australia and New Zealand. However, the High Court held that breach of a condition which regulates the exercise of a statutory power is not necessarily invalid and of no effect (at 388). On the proper construction of the provision in that case, the Court held that an act done in breach of the provision was not invalid (at 393).

9 However, the provision did impose a legal duty upon the ABA and caused an act done in breach of it to be unlawful. Accordingly, a person with sufficient interest was entitled to sue for a declaration that the ABA had acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action (at 393). The Court made a declaration that the Standard was unlawfully made.

10 Based on the reasoning adopted in that case, Ms Allars of counsel on behalf of the plaintiffs submitted that her clients were entitled to a declaration that the Council Complaint was not a complaint within s.79(1) of the Liquor Act.

11 In respect of any proposed undertaking by the defendant, the plaintiffs submitted that that was not a proper basis for withholding the declaratory relief sought by the plaintiffs.

The defendant’s submissions

12 The defendant submitted that no declaration should be made as sought in Prayer 2 of the plaintiffs’ Summons. On the basis that the Police Complaint was valid and related to the plaintiffs’ licensed premises, the defendant pointed to the finding made to the effect that the invalidity of the Council Complaint had no “practical outcome” upon the Director’s entitlement to convene a conference (see paragraph [120]). Accordingly, the defendant submitted that there would be no practical utility in a declaration as no substantive remedy was required.

13 In view of the finding that the Council Complaint was not a complaint within the meaning of s.79(1) of the Liquor Act, the defendant stated in its written submissions that it would undertake to write to all persons invited to participate in the conference advising them that:-

(1) The defendant will not consider or take further action in relation to the complaint by Manly Council notified by letters dated 8 May 2009 and 17 July 2009.

(2) The defendant intends not to have regard to the material served in support of the complaint by Manly Council unless the defendant receives a complaint from Manly Council within s.79(1) of the Liquor Act that refers to that material.

14 The defendant submitted that the appropriate orders to be made having regard to the judgment delivered in the proceedings on 18 November 2009 were as follows (Annexure – orders contended for by defendant):-

“ 1. Order 4 made on 10 August 2009 as varied by Order 1 on 13 August 2009 be vacated.
2. The Summons be dismissed.


3. The plaintiffs pay the defendant’s cost of the proceedings .”

Consideration – appropriate order

15 In Project Blue Sky (supra), whilst the High Court held that the relevant act under consideration in that case was not invalid it nonetheless made a declaration that the act of the ABA in contravention of s.160 was unlawful. Section 160 of the Broadcasting Services Act 1992 (Cth) was a significant provision. It provided the conceptual framework in which certain functions (under s.158 of the Act) were to be carried out (at 384 per McHugh, Gummow, Kirby and Hayne JJ). It was held to be “the dominant provision” in its relationship to s.122 of the Act.

16 A breach of such a provision was, accordingly, a matter of particular significance which could carry consequences. The Court held, as noted above at 393, that a person with sufficient interest was entitled to sue for a declaration that the ABA had acted in breach of the Act.

17 The fact that the Council “complaint” was not a valid one is in a very different category. No breach or unlawfulness, of course, could attach to the Council’s actions in making a defective complaint. The present case is also quite unlike the circumstances in Ainsworth (supra) where the High Court made a declaration to the effect that the former Criminal Justice Commission failed to observe the requirements of procedural fairness in producing its report. Although the report did not affect the appellants’ legal rights and liabilities, it had and could continue to have adverse practical consequences to their reputations.

18 The fact that the Council’s “complaint” did not conform to the statutory provisions for the making of complaints under s.79 was not an act that carried with it either legal significance (as with actions involving unlawful conduct) or practical consequences. The making of a declaration in relation to the Council’s complaint would have no utility. Accordingly, I do not consider that a declaration should be made as sought in paragraph 2 of the summons filed on 10 August 2009.

Submissions on Costs

Partial success

19 The plaintiffs submitted that they enjoyed success in obtaining part of the relief sought, namely, in relation to Prayer 2 and Ground 2 of the Summons.

20 The defendant submitted there was no basis for departing from the ordinary rule that costs follow the event. The issues raised by the plaintiffs in their Summons were numerous (11 grounds), and they failed on all but one issue. Although the Council Complaint was held to be defective, it did not have any practical outcome because the Police Complaint was held to be valid and the conference decision not made in excess of power.

21 The Court was required to determine the validity of the Police Complaint on the same principles as those that were applicable to determining the Council Complaint. In this way, the defendant submitted that the dispute concerning the validity of the Council Complaint was not discrete, dominant or clearly separable from the issues in respect of the Police Complaint. On that basis, it was contended that apportionment of costs between the Council Complaint issue and the remaining issues in the proceedings was inappropriate.

22 In addition, the defendant contended that other factors balanced against the plaintiffs’ limited success in respect of the Council Complaint demonstrate that it would be unfair for any order for costs to be made in the plaintiffs’ favour. Those factors include delay caused by the plaintiffs in respect of the Police Complaint and any action that could be taken by the defendant in respect of that complaint. Further, unfounded accusations of bias were directed toward Mr Freeman which were serious in nature, having regard to his position within the Office of Liquor, Gaming and Racing.

“Surrender” by the defendant

23 Communications between the plaintiffs and Mr Freeman during July and August 2009 establish that it was Mr Freeman’s intention to conduct the conference as the delegate of the Director-General of Communities NSW (see Tab AJ, Exhibit RD1 to the affidavit of Robert Doran sworn 6 August 2009). The hearing was listed for 15 October 2009. By letter dated 9 October 2009, Ms Mills advised that she proposed to preside at the conference. One of the reasons for rejecting Ground 4 (appearance of bias in the conference) was that Ms Mills stated in her letter of 9 October 2009 that she would be the relevant decision-maker, not Mr Freeman (paragraph [191]).

24 On 13 October 2009, the Director wrote to the licensees of the premises, the subject of the conference, and advised that she would keep the procedure of the conference under review in order to ensure that a fair hearing was afforded. A finding was made that the assurance contained in the Director’s letter of 13 October 2009 “undermined” the plaintiffs’ position in relation to Ground 6 (the conduct of the conference gave rise to an appearance of bias) (see paragraph [218]).

25 Ms Mills became Director-General on 27 July 2009. She did not inform the plaintiffs that she intended to withdraw, or had withdrawn, Mr Freeman’s delegation to preside at the conference or that she intended to conduct the conference until her letter dated 9 October 2009. No assurance as to procedural fairness was made until 13 October 2009. The plaintiffs submitted that had they received this information prior to 10 August 2009 when they commenced proceedings, they would have been in a position to consider the effect upon Grounds 4 and 6 of the Summons.

26 The plaintiffs accordingly contended that the Director-General’s letters of 9 and 13 October 209 constituted a surrender by the defendant on the issues of apprehended bias and procedural fairness at the hearing. The decisions in Oshlack v Richmond RiverCouncil (1998) 193 CLR 72; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 and One.Tel Limited v Commissioner of Taxation (2000) 101 FCR 548 were relied upon in this respect. Ms Allars submitted on behalf of the plaintiffs that on 9 and 13 October 2009, the Director-General effectively surrendered the litigation in respect of Grounds 4 and 6.

27 On that basis, it was contended that it would be inappropriate for the Court to order the plaintiffs to pay the entirety of the defendant’s costs in respect of those grounds.

28 In the Defendant’s Reply Submission, the defendant referred to the fact that notwithstanding that Ms Mills determined that she herself would convene the conference, the following finding was made in respect of Ground 4 (at [190]):-

“ I do not consider, in the particular circumstances of the present case, that Mr Gardner’s or Mr Freeman’s involvement in the investigations, inquiries and processes leading to the charges…have been shown to be incompatible with the performance of the Director’s statutory responsibilities arising under Division 3 .”

29 On that basis, the defendant contended that the plaintiffs would have failed on Ground 4 absent Ms Mills’ letter of 9 October 2009 as I found that none of the three bases relied upon in respect of Ground 4 were established (at [200]).

30 Similarly, the defendant submitted that although the Director’s letter of 13 October 2009 “undermined” the plaintiffs’ position in relation to Ground 6, it cannot be said that Ground 6 was determined purely or solely on that basis. The plaintiffs failed to establish any denial of procedural fairness as set out in Ground 6, and the defendant made reference in particular to the following findings in that respect:-

(1) That there was no requirement to provide particulars (at [210] – [211]).

(2) That the plaintiffs had adequate time to prepare for the conference (at [216]).

(3) That the plaintiffs had been invited to make written and oral submissions (at [217]).

Consideration – costs

Partial success

31 In Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 373, the Court of Appeal summarised the relevant authorities in relation to the appropriate costs order where a party has had partial success:-

“6. Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed : Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

7. As the appellants submit, the commencing position is that costs follow the event so that a successful party is entitled to costs. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument : Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 (at [24]) ...” (emphasis added)

32 I do not consider that it is appropriate to apportion the costs based on the plaintiffs’ success in respect of Prayer 2 of the Summons. Firstly, the defendant succeeded in defending all but one ground contained in the Summons. Secondly, the issue was not dominant either, being one of a multiplicity of grounds, and one which involved the same application of principles as those applicable to determining the validity of the Police Complaint. It could not be said that the matters upon which the defendant was unsuccessful took up a significant part of the trial either by evidence or submissions. Thirdly, the invalidity of the Council Complaint had no practical effect upon the outcome of the proceedings as the Police Complaint and the Conference Decision were held to be valid.

Surrender

33 The question of surrender was addressed by McHugh J in Ex parte Lai Qin (supra), in which an applicant for a protection visa under the Migration Act 1958 (Cth) commenced proceedings in the High Court for prerogative relief. Before the application was heard, the Minister exercised his discretion under the Act and granted a protection visa. His Honour stated at 624-625:-

“ In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation…
…
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings .”

34 However, McHugh J also observed that, in some cases, a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried (at 625).

35 In One.Tel (supra), Burchett J considered the authorities on the issue of surrender. His Honour observed at [6]:-

“ [6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs .”

36 The applicants in One.Tel (supra) sought to challenge the validity of certain notices, and to have them set aside. The respondent, after initially defending those notices, encountered an evidentiary difficulty, and acknowledged that they were to be set aside. Considering the question of reasonableness, his Honour found that the respondent’s earlier stance must have been unreasonable, at least once the true position had been ascertained. Yet that stance was maintained by opposition to the applicant's motion to amend, and by service of the notice to admit facts. It was only abandoned after the applicants defeated the attempt to obtain admissions. Accordingly, his Honour concluded that the respondent should be ordered to pay the costs of the applicants.

37 As discussed above, the plaintiffs submitted that the Director-General’s letters of 9 and 13 October 2009 constituted a surrender by the defendant on the issues of apprehended bias and procedural fairness at the hearing as provided in Grounds 4 and 6 of the Summons. The defendant submitted that the letters did not amount to surrender in respect of Grounds 4 and 6 as these communications did not constitute the only factor in determining the merits of these grounds.

38 Ground 4 of the Summons had three bases (at [152]):-

(1) Persons in the position of accuser also acted as decision-maker. In these proceedings, those persons were Mr Gardner and Mr Freeman.

(2) Pre-judgment, by the formation of concluded views on matters central to the s.80 conference on the part of Mr Gardner and Mr Freeman.

(3) Mr Freeman had a direct relationship and contact with Mr Robert Doran, the licensee of the Steyne Hotel, who was his client.

39 In considering Ground 4, regard was had to the powers and roles of the Director in relation to the performance of his or her functions under the Liquor Act. The Director’s statutory powers and functions under the Act included the assessment of disturbance complaints and, if considered appropriate, the convening and chairing of a conference held under Division 3. As stated above at paragraph [25], I did not consider that it was established that Mr Gardner’s or Mr Freeman’s involvement in the investigations, inquiries and processes leading to the charges was incompatible with the performance of the Director’s statutory responsibilities (see paragraph [190] of the judgment).

40 The effect of the letter dated 9 October 2009 which advised that Ms Mills was to preside at the conference was examined at paragraph [189] of the judgment:-

“ The short answer to what might be referred to as the ‘accuser/decision- maker’ point is that there is no basis for impugning Mr Gardner’s role in relation to the performance of his statutory functions in the circumstances of the present case where it has not been suggested that he will be involved in determining whether or not action should be taken under s.81 against the plaintiff licensees.”

41 The only decision that could affect substantive rights on a disturbance complaint is one taken under s.81. On the basis that Mr Freeman was to preside at the conference, the statutory scheme envisaged the exercise of that function and other functions of the Director under the Act, including investigating complaints. No reasonable apprehension of bias would have been apparent were Mr Freeman to conduct the conference. The letter of 9 October 2009 did not, in my opinion, contain either an express or implied admission that a reasonable observer would consider Mr Freeman to be biased or that there could be an apprehension of bias. It was not a surrender in respect of Ground 4.

42 In respect of Ground 6, no denial of procedural fairness was established insofar as the complaints failed to contain allegations and particularise the precise factual matters said to form the basis for the complaints (paragraph [211]). It was also accepted that the plaintiffs had been provided with in excess of six weeks to prepare for the conference. As the conference had been postponed, the plaintiffs had the benefit of additional time to examine the materials served in support of the Police Complaint. Accordingly, the adequate time was allowed to the plaintiffs to deal with the material in relation to the complaints.

43 The evidence indicated that the procedures in relation to the conduct of the conference were of a flexible nature (at [218]). The broad discretion vested in the Director regarding procedural aspects of the conference was noted in this respect. The letter sent by the Director on 13 October 2009 advised that she would keep the procedure of the conference under review in order to ensure that a fair hearing was afforded. Such an assurance undermined the plaintiffs’ position in relation to Ground 6. It was not, however, determinative of the issue in respect of Ground 6.

44 I do not consider that I should treat the letters sent to the plaintiffs on 9 and 13 October 2009 as amounting to either a capitulation or surrender. In my view, both parties have acted reasonably in commencing and defending proceedings and their conduct continued to be reasonable until the litigation was completed. It is clear from my reasoning in the judgment delivered on 18 November 2009 that the letters were only one matter which I took into account in determining whether Grounds 4 and 6 were established to the requisite standard.

45 I, accordingly, have concluded that this is not a case in which there is a basis for an apportionment of costs. The defendant was the successful party and the ordinary costs rule should be applied. Accordingly, the plaintiffs are to pay the defendant’s costs of the proceedings.

Orders

46 I make the following orders:-

(1) Order 4 made by the Court (Harrison J) on 10 August 2009, as varied by order 1 made on 13 August 2009, be vacated.

(2) The summons filed on 10 August 2009 is dismissed.

(3) The plaintiffs are to pay the defendant’s costs of the proceedings on the ordinary basis.

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