Polley v Johnson (No 2)

[2014] NSWSC 1301

Supreme Court

New South Wales

Medium Neutral Citation:

Polley v Johnson and anor (No 2) [2014] NSWSC 1301

Hearing dates:

Written submissions - 5 September 2014

Decision date:

23 September 2014

Before:

Bellew J

Decision:

The plaintiff is to pay to the Commissioner of Police for NSW, the costs of and incidental to the claim for public interest immunity made in the proceedings on 13 March 2014, as agreed or assessed.

The plaintiff is to pay the first defendant's costs of the proceedings, as agreed or assessed, such costs to include the first defendant's costs of, and incidental to, the notice of motion filed on 6 March 2014.

Catchwords:

COSTS - whether costs should follow the event - whether costs order reflecting the outcome of interlocutory application should be made separately from an order in respect of the costs of the proceedings as a whole.

Legislation Cited:

Legal Aid Commission Act 1979
Uniform Civil Procedure Rules 2005

Cases Cited:

Polley v Johnson and anor [2014] NSWSC 1191

Texts Cited:

Ritchie's Uniform Civil Procedure NSW

Category:

Costs

Parties:

Michelle Elizabeth Polley - Plaintiff
Belinda Johnson - First Defendant
Holly Wraith Smith - Second defendant

Representation:

Counsel:
Mr P Skinner - Plaintiff
Ms M England - First Defendant
Solicitors:
Legal Aid New South Wales - Plaintiff
I V Knight - Crown Solicitor for New South Wales - First defendant

File Number(s):

2012 / 271413

Publication restriction:

Nil

Judgment

1. On 29 August 2014 I delivered my principal judgment in these proceedings in which I dismissed the plaintiff's summons: Polley v Johnson and anor [2014] NSWSC 1191.

1. At the time of delivering judgment I gave the parties an opportunity to provide short written submissions in relation to the issue of the appropriate orders as to costs.

1. This judgment deals with that issue.

The proceedings

1. In order to properly understand the position of the first defendant in relation to the question of costs, it is necessary to make reference to two particular aspects of the proceedings.

1. Firstly, as set out in my principal judgment (at [7]-[9]) I was required to determine a motion filed by the first defendant on 6 March 2014 seeking to set aside an application made by the plaintiff for an intercourt transfer pursuant to Part 33 Rule 13 of the Uniform Civil Procedure Rules 2005 ("the Rules"). For the reasons stated at [10]-[12] of my principal judgment I made the order sought by the first defendant in that notice of motion.

1. Secondly, in the course of the proceedings on 13 March 2014, and specifically in the cross-examination of the first defendant by counsel then appearing for the plaintiff, a question was asked (T57 L43) which gave rise to objection from counsel for the first defendant. That objection was accompanied by an indication from counsel that a claim for public interest immunity claim would be made by the Commissioner of the NSW Police (for whom counsel also appeared) in relation to the subject matter of the question asked.

1. At the conclusion of the cross-examination, counsel confirmed (at T66 L28 and following) that such a claim would be made and read, in support of that claim, two affidavits of Peter Edward Dein sworn 22 November 2012, one of which was an open affidavit and the other a confidential affidavit. Counsel also tendered confidential exhibits PED 1 and PED 2.

1. Both of those affidavits had been prepared in support of a previous claim for public interest immunity which I had been asked to determine. Having had the opportunity of reading the affidavits again, I expressed a tentative view (T70 L15-20) that they did not squarely address the claim which had arisen in the circumstances I have outlined. I indicated that I would be prepared to provide the Commissioner of Police with an opportunity to provide further affidavit evidence.

1. At the conclusion of the proceedings on 13 March, counsel indicated (commencing at T81 L22) that she wished to avail herself of the opportunity to obtain further evidence, but also said that there may be a delay in obtaining any further affidavit material. At that stage counsel indicated that she would undertake further inquiries so as to be able to indicate when the evidence was likely to become available.

1. At the conclusion of the evidence on the following day, the proceedings were further adjourned until 8 April 2014. It was envisaged that by that time, the necessary evidence in support of the claim would be available so that the issue could be determined. When the proceedings resumed on 8 April 2014, Mr Skinner of counsel announced his appearance for the plaintiff and informed me (inter alia) that the public interest immunity claim was now conceded by the plaintiff.

Submissions of the parties

1. Against the background I have outlined the first defendant seeks the following orders as to costs:

(i)   an order that the plaintiff pay the first defendant's costs of the notice of motion to set aside the plaintiff's intercourt transfer request, as agreed or assessed; and

(ii)   an order that the plaintiff otherwise pay the first defendant's costs of the proceedings, as agreed or assessed.

1. The Commissioner of Police for NSW seeks the following order as to costs:

(i)   an order that the plaintiff pay to the Commissioner of the NSW Police, as the intervener in relation to the claim for public interest immunity which had been listed for determination on 8 April 2014, the costs of and incidental to that claim, as agreed or assessed.

1. Four submissions were advanced in support of the making of these orders.

1. Firstly, it was pointed out that the first defendant was successful in the proceedings as a whole (including the notice of motion) and that the Commissioner's claim for public interest immunity had been conceded. It was submitted that in these circumstances, there was no reason why the ordinary rule that costs follow the event should not apply.

1. Secondly, it was submitted on behalf of the first defendant that costs had been incurred in dealing with a number of issues which originally formed part of the plaintiff's case but which were later abandoned. It was submitted this further supported the proposition that costs should be ordered in favour of the first defendant in respect of the proceedings as a whole

1. Thirdly, it was submitted that the Commissioner of Police had incurred significant costs in association with the preparation of affidavit material in support of the claim for public interest immunity. It was submitted that as a consequence of the plaintiff's belated concession, made shortly before the commencement of the proceedings on 8 April 2014, the costs of preparing further evidence in support of the claim had been thrown away.

1. Finally, and in support of the submission that I should make three separate orders as previously outlined, counsel for the first defendant submitted that separate orders would maximise the first defendant's prospects of costs recovery from the plaintiff, having regard to the provisions of the Legal Aid Commission Act 1979 ("the LAC Act"). Why this was so was not made completely clear.

1. Counsel for the plaintiff did not argue against the general proposition that costs should follow the event. However, he submitted that there was no cogent reason for taking the "three-fold" approach which had been urged on behalf of the first defendant. On the assumption I was minded to follow the general rule set out in rule 42.1 of the Uniform Civil Procedure Rules 2005 it was submitted that one single costs order should be made.

Consideration

1. The plaintiff's effective concession that costs should follow the event was, in my view, one which was properly made. There is no reason why that course should not be taken. The only issue concerns the form in which any order(s) for costs should be made.

1. Because the Commissioner of Police was not a party to the principal proceedings, the making of a separate order in his favour in respect of the costs of the foreshadowed public interest immunity claim is appropriate.

1. However, I am unable to identify any proper basis for the making of separate costs orders in relation to the proceedings on the one hand, and the notice of motion on the other. The costs of the second would necessarily be subsumed in the first.

1. Moreover, the precise reason(s) why separate orders would maximise the first defendant's prospects of costs recovery under the LAC Act has not been made clear. In any event, advancing that circumstance in support of the making of separate orders tends to run contrary to the provisions of s. 42 of the LAC Act, the effect of which is that a court must make the same costs order as would be appropriate if the person bound by its terms was not legally assisted: Ritchie's Uniform Civil Procedure NSW at [42.1.90].

1. The terms of the orders that I propose will make it clear that the costs of the proceedings shall include the costs of the notice of motion.

Orders

1. For these reasons I make the following orders:

(1) The plaintiff is to pay to the Commissioner of Police for NSW, the costs of and incidental to the claim for public interest immunity made in the proceedings on 13 March 2014, as agreed or assessed.

(2) The plaintiff is to pay the first defendant's costs of the proceedings, as agreed or assessed, such costs to include the first defendant's costs of and incidental to the notice of motion filed on 6 March 2014.

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Decision last updated: 23 September 2014