Odeh v New South Wales Police Service (No 2)

[2019] NSWSC 422

Supreme Court

New South Wales

Medium Neutral Citation:	Odeh v New South Wales Police Service (No 2) [2019] NSWSC 422
Hearing dates:	On the papers
Decision date:	16 April 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Plaintiff to pay the defendant’s costs
Catchwords:	COSTS – where misconceived summons for declaratory relief dismissed – order for plaintiff to pay defendant’s costs confirmed – order to grant plaintiff 4 months to bring an application rejected
Cases Cited:	Odeh v State of New South Wales [2019] NSWSC 342
Category:	Costs
Parties:	Husam Ali Oden (Plaintiff) New South Wales Police Service (Defendant)
Representation:	Counsel: Mr P Menzies (Plaintiff) Ms S Chrysanthou (Defendant)   Solicitors: Hall Partners Crown Solicitors
File Number(s):	2019/73694

Judgment

1. HIS HONOUR: On 1 April 2019 I dismissed a summons that had been filed in this Court on 7 March 2019. I had heard argument on the matter when sitting as duty judge on 29 March 2019. I made the following order as to costs:

Unless application is made and notified to my associate within 7 days for an alternative order, the plaintiff is to pay the defendant's costs.

2. In the normal course, an order that the plaintiff pay the defendant's costs would follow the primary order dismissing the summons but I made the order in those terms as a matter of procedural fairness because I had not been provided at the hearing with any submissions on the question of costs.

3. My associate subsequently received an email from the plaintiff's solicitor, Mr Trevor Hall, in which he sought the following orders:

(i) Extend the time for filing of submissions as to costs by the Plaintiff, by 1 day (to today);

(ii) Confirm the orders of the Court that the Plaintiff is to pay the Defendant's costs;

(iii) For the reasons explained in the short note, grant the Plaintiff 4 months in which to bring any application should there be a basis to vary it.

4. The first order was sought on the basis that my reasons were published on 2 April. I have no difficulty in granting the one day extension.

5. The second order is difficult to understand, given the third order that is sought.

6. The basis for seeking the third order is said to be that the plaintiff may be in a better position to make submissions on the question of the costs of the unsuccessful proceeding in this Court after the criminal trial proceedings in the District Court are concluded. Mr Hall maintains that there was nothing improper in the plaintiff seeking relief in this Court in terms of the summons filed on 7 March 2019 in circumstances where "this Court (being the superior court) was also seized of the matter". That is a reference to proceedings that were the subject of a reserved judgment of Rothman J (since handed down: Odeh v State of New South Wales [2019] NSWSC 342).

7. The relief sought in the proceedings before Rothman J, in part, concerned facts relating to the pending criminal proceedings in the District Court. They did not raise for determination the same issues as the summons with which I was concerned.

8. It followed, as Mr Hall submitted, that "there was nothing improper in the circumstances in inviting this Court to exercise its jurisdiction" by way of the summons filed on 7 March 2019.

9. I have not attempted to refer to all of the submissions made by Mr Hall, but I have had regard to them.

10. The defendant has opposed order 3 sought by the plaintiff. Both parties are content for the matter to be dealt with on the papers.

11. I dismissed the summons essentially because it was an entirely misconceived and ill-advised attempt to invoke a discretionary intervention by this Court where there was the obvious availability of moving the District Court for the same relief. It was, quite frankly, a waste of time and money. Nothing that might occur in the proceedings in the District Court will change that.

12. I am not persuaded that there is any good reason why the order that the plaintiff pay the defendant's costs should not be confirmed.

13. I confirm the order that the plaintiff is to pay the defendant's costs.

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Decision last updated: 16 April 2019