State of New South Wales v Lynn (Costs)

[2021] NSWSC 143

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Lynn (Costs) [2021] NSWSC 143

Hearing dates:

On the papers

Decision date:

26 February 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The plaintiff is to pay half the costs of the defendant, as agreed or assessed, that were incurred between 21 October 2020 and 5 November 2020, including the hearing on that date.

Catchwords:

HIGH RISK OFFENDER – continuing detention order sought by plaintiff refused – extended supervision order of 18 months imposed – extended supervision order not opposed by defendant – position of defendant communicated to plaintiff before final hearing – question of costs in those circumstances

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

State of New South Wales v Lynn (Final) [2019] NSWSC 580

Lynn v State of New South Wales [2019] NSWCA 300

State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066

State of New South Wales v Lynn (Final) [2020] NSWSC 1584

State of New South Wales v Guider (No 3) [2020] NSWSC 209

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Category:

Costs

Parties:

State of New South Wales (Plaintiff)
Scott David Lynn (Defendant)

Representation:

Counsel:
J Emmett SC; R Sud (Plaintiff)
E Kerkyasharian (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid New South Wales (Defendant)

File Number(s):

2020/200144

Judgment

1. HIS HONOUR: This is an application for costs made by the defendant to a summons in which the plaintiff was partially successful in seeking orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

The background to the application

2. At the time of the application, the defendant was subject to a continuing detention order (“CDO”) that was made, coincidentally, by me on 17 May 2019: State of New South Wales v Lynn (Final) [2019] NSWSC 580. In that judgment, I concluded that the defendant had a history of violent offending and a poor prognosis in respect of reoffending if released back into the community. I noted the contents of a Risk Assessment Report to the effect that the applicant would benefit from successfully completing the Violent Offender Therapeutic Program (“VOTP”) in custody, as follows:

“42   … the authors considered the option of the defendant being detained for a sufficient period to complete the VOTP, although he had twice attempted the VOTP whilst in prison. The defendant commenced the VOTP in March 2010 and was removed in July 2010 for fighting. He recommenced in October that year, and was removed in December for poor performance, involving ‘a poverty of content in his self-disclosure and a lack of ownership of his history of violence’. The defendant is recorded as having explained that he took part in the program to satisfy ‘parole’ and that he did not consider he had ever been violent.

43   The authors stated:

‘As a general rule, completion of [the] VOTP would require a custodial sentence of at least 14 months, including time for referral and assessment. However, given Mr Lynn’s previous history with VOTP and his lack of cooperation with community supervision, a significantly longer period of time would be required for him to have a reasonable prospect of completing the program. Until, and unless, Mr Lynn develops thinking which enables him to follow society’s rules, and feel good about that, he will remain at high risk for future violent offending. He will also continue to be very difficult to manage under supervision and pose a risk to supervising staff.’

44   However, the authors were pessimistic about even this option changing the defendant’s thinking. They stated:

‘In the event that Mr Lynn is subject to a Continuing Detention Order, he would be able to complete the VOTP, although he may well refuse to do so. Even if he does complete the VOTP, given the intensity of his criminal thinking, I consider it unlikely that the VOTP will significantly alter that thinking. He would then require ongoing intensive supervision and maintenance treatment to reduce his risk of future reoffending.’”

3. Later in my judgment, in determining the length of the CDO, I said:

“80   In relation to a CDO, although Drs Parker and Furst are pessimistic as to whether the defendant would actively participate in a VOTP program and, if he did, that it would modify his behaviour, it seems to me that it is a worthy goal. In relation to the BOCSAR report’s conclusion that VOTP does not demonstrably lower a probability for violent re-offending, I also note that there was some evidence, albeit qualified, of significant decreases in new offences generally by violent offenders, as follows:

‘The results suggest that VOTP is associated with a significant decrease in the likelihood that a violent offender will commit a new offence or return to custody within 24 months of release from prison. OLS models estimate that an offender who commences VOTP is on average, between 7 and 9 percentage points less likely to re-offend or return to custody within 24 months free time after release. We find similar results when comparing those who completed VOTP with those who did not complete the program. VOTP completion is associated with reductions in the risk of general re-offending and general re-offending or returning to custody. However, we cannot be certain that these effects are causal as no significant estimates were obtained using the more robust 2SLS which more adequately deals with problems of endogeneity.’

81   This suggests that there is value in the VOTP, even if it is not to the extent that it is made out to be. Having regard to the forensic material, the critical issue for the defendant’s progress is to change his thinking. It appears that the defendant actively participating in the VOTP program is the best available option to achieve that.

82   Ms Cieplucha gave evidence that the length of the VOTP program is 8 to 10 months, but that because there is a long waiting list for offenders wanting to participate and assessments to be done, it can be many months before an offender gains entry to VOTP. However, she also said that if a relatively short CDO is made for the purpose of an offender participating in VOTP, the application process can be fast-tracked to fit into a 12 month CDO timeframe.

83   The term of the CDO sought by the applicant is a period of two years. It seems to me that the defendant will have an incentive to actively participate in a VOTP if there is a prospect of him being accepted into the program at the earliest opportunity and a likelihood of release back into the community when it is completed, provided he participates in a fully co-operative and active fashion. However, there are conflicting opinions as to how long that minimum period should be. Dr Parker thought that 14 months was the minimum time for that to occur, whereas Dr Furst thought at least 2 years and Dr Collins thought 3 years.

84   ...

85   I am of the opinion that there should be a CDO for a period of 15 months … an outcome that delivers a further period of custody from today of about 15 months would be, in my opinion, appropriate for the stated objective of enabling the defendant an opportunity to partake in and finish the VOTP program.”

4. The defendant appealed the judgment, which was heard by the Court of Appeal on 18 November 2019 and dismissed on 9 December 2019: Lynn v State of New South Wales [2019] NSWCA 300.

5. The defendant then indicated his preparedness to participate in the VOTP. He commenced the program on 4 February 2020 and completed it on 13 October 2020. Helen Dimitrios, a psychologist attached to the VOTP program, stated in a report filed on 27 October 2020 (“the Dimitrios report”):

“Given Mr Lynn’s [CDO] was to expire on 16/08/20, and the limitations on Interim Detention Orders, prioritisation was given to his completion of program material due to the uncertainty of any further orders and the possibility that he may be released to the community.”

6. The CDO was due to expire on 16 August 2020. The summons was filed on 6 July 2020. By way of final relief, the plaintiff sought a CDO for a period of 3 years and, in the alternative, that the defendant be subject to an extended supervision order (“ESO”) for a period of 5 years. Annexed to the summons was a schedule of 54 proposed conditions to the ESO.

7. On 14 August 2020, N Adams J made an interim detention order (“IDO”) for a period of 28 days, which was extended to cover the anticipated date of the final hearing of the application: State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066.

8. The material prepared for the application included a Risk Assessment Report, dated 2 June 2020. The author, forensic psychologist Dr Richard Parker, noted that the defendant had not completed the VOTP and that he was unlikely to complete it before the CDO expired. Dr Parker considered that even if the defendant did complete the program, his prognosis for refraining from reoffending would not be significantly improved. Dr Parker said:

“Even if [the defendant] does complete the VOTP, given the intensity of his criminal thinking, I consider it unlikely that the VOTP will significantly alter that thinking.”

9. Accordingly, Dr Parker supported the application for a further CDO so that the defendant would complete the program.

10. Reports were also prepared by forensic experts who were appointed pursuant to orders made by N Adams J. Dr Katie Seidler, forensic psychologist, in a report dated 21 September 2020, concluded that the defendant posed a moderate to high risk of future violent offending and that ESO conditions were unlikely to prevent him from reoffending. She recommended that a CDO be imposed to ensure that he completed the VOTP. Dr Andrew Ellis, psychiatrist, in a report dated 30 September 2020, was more positively disposed to the comparative benefits to the defendant and the community by the defendant being released into the community subject to an ESO rather than being subject to a further CDO.

11. On 20 October 2020, which was the fixed date for the final hearing, I was informed that the defendant had completed the VOTP program but that there had not yet been an assessment of his completed performance. The hearing was adjourned until 5 November 2020 to allow for the preparation and service of supplementary forensic reports by the plaintiff.

12. When the hearing resumed, supplementary reports by the Court-appointed experts were tendered, along with the Dimitrios report. Ms Dimitrios assessed the defendant as having made some limited progress in the VOTP and made detailed recommendations for further treatment, whether within prison or in the community. Essentially, the Dimitrios report reinforced the opinions of Dr Seidler and Dr Ellis. Dr Seidler did not specifically address the fact that the defendant’s completion of the VOTP had removed her earlier-expressed preference for a continuing CDO, but her reservations as to the defendant’s risk assessment remained centrally relevant to both alternative orders sought by the plaintiff.

13. I handed down judgment on 12 November 2020, refusing the order for a CDO and making orders for an ESO for a period of 18 months: State of New South Wales v Lynn (Final) [2020] NSWSC 1584.

14. The defendant made an application for costs immediately following judgment being delivered and a timetable was set for the filing of submissions by the parties.

15. The defendant tendered affidavit evidence to the effect that on 13 October 2020, the defendant’s solicitor wrote to the plaintiff advising that the defendant had completed the VOTP and would be prepared to consent to an ESO (of unspecified length). He sought consideration be given to amending the summons accordingly. Annexed to the letter was a document setting out the defendant’s position in relation to each of the plaintiff’s proposed conditions to the ESO. The defendant opposed 32 of the 54 proposed conditions, making alternative proposals in relation to some of those objected to. The letter was marked “without prejudice save as to costs”.

16. On 19 October 2020, at 6:23pm, the plaintiff sent an email to the defendant attaching a version of the ESO conditions that responded to the defendant’s concerns by withdrawing some conditions that were objected to and proposing alternative wording to some others. The document was a helpful basis for further negotiations between the parties and/or determinations by the Court, should the alternative order sought be made.

17. At the hearing on 20 October 2020, the plaintiff indicated that it would press the order for a CDO.

18. On 27 October 2020, the defendant wrote a letter to the plaintiff, marked “without prejudice save as to costs”, again requesting that the plaintiff not move on the order sought for a CDO. The defendant drew the plaintiff’s attention to aspects of the Dimitrios report that, in its submission, favoured the imposition of an ESO. The defendant’s letter did not propose a length of the ESO.

19. By email dated 4 November 2020, the plaintiff informed the defendant that it declined to discontinue its application for a CDO.

The parties’ submissions

20. The defendant submitted (and the plaintiff accepts) that, having regard to s 21 of the Act, proceedings pursuant to the Act are civil in nature and the ordinary position applies in relation to costs orders for civil proceedings, subject to s 23 of the Act. Section 23 provides that:

“An order for costs may not be made against an offender in relation to any proceedings under this Act (including proceedings on an appeal under this Act).”

21. Conformably with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), if the court does make an order for costs, it should “follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs”.

22. The defendant submitted that, in view of the history of the correspondence between the parties from and including 13 October 2020, an order for costs should be made, as agreed or assessed. In particular, the defendant submitted that:

“Had the plaintiff agreed with the proposal of 13 October 2020, no adjournment would have been necessary, and the discussion about conditions could have ensued.

…

On 27 October 2020, a second letter was written urging reconsideration of the position taken by the State. It was rejected on 4 November 2020.

Whilst there remained some dispute about the conditions at the hearing, there was basic acceptance, subject to some wording in some cases, to almost all of the conditions prior to the hearing.”

23. The plaintiff submitted that the appropriate costs order is that each party pay its own costs. The “event”, to adopt the terms of r 42.1 of the UCPR, “in this case was not an unqualified victory for the defendant in relation to the matters that remained in dispute at the final hearing”. In relation to the submissions of the parties as to the appropriate ESO conditions, 11 of the conditions imposed at the hearing were resisted by the defendant. Eight other conditions had not been consented to, until that final stage. Further, the plaintiff submitted, “[t]he State was successful on nearly every dispute between the parties as to conditions”. Accordingly, even if the plaintiff had not pressed its application for a CDO, a contested hearing would have been necessary, and would have involved some of the same issues, such as the nature and magnitude of the risk posed by the defendant.

24. The plaintiff submitted that, even if the parties were in agreement, it remained necessary for the Court to be independently satisfied of the appropriateness of the agreed orders, thus warranting a hearing. The plaintiff noted that in State of New South Wales v Guider (No 3) [2020] NSWSC 209, Button J said that this aspect of the scheme did not make it sui generis so as to justify a departure from the ordinary approach to costs, but submitted that, nevertheless, it remained a matter to be taken into account in the exercise of the Court’s discretion.

25. Further, at the time of the first hearing on 20 October 2020, the defendant had only recently completed the VOTP and the available interim reports were not favourable to the defendant’s progress.

26. The plaintiff submitted that the primary object of the Act expressed in s 3(1), which is to ensure the safety and protection of the community, is an important consideration in determining the appropriate costs order: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [48]-[49] and [143]. The plaintiff submitted:

“The Court should take care not to make orders that effectively penalise the State for maintaining an application in relation to this offender which was reasonably contended to be required for the safety and protection of the community.”

Consideration

27. The plaintiff’s application for a CDO, as of 20 October 2020, had significant merit. Although the defendant had completed the VOTP a week before, there was no assessment of his performance that was available to the parties and Dr Parker had expressed a view that even if he did, it would make little difference to his risk assessment.

28. The hearing on 5 November 2020 lasted until approximately 2:50pm. Some of the hearing time was occupied by issues that were equally relevant to both alternative orders that were sought, particularly the evidence concerning the risk of the defendant committing serious offences of violence. Most of the time after morning tea, until the close of the hearing at around 2:50pm, was spent on consideration of the proposed conditions of an ESO.

29. I am of the view that the case of Oshlack v Richmond River Council is of little assistance on the issue of costs in a high-risk offender hearing. It concerned an order by the primary judge dismissing an application for costs by a defendant who had successfully resisted an application brought by a member of the public, Oshlack, to restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”). The order was overturned in the Court of Appeal and then appealed by Oshlack (“the appellant”).

30. Section 69(2) of the Land and Environment Court Act 1979 (NSW) (“the Court Act”) (since repealed) provided as follows:

“69(2)   Subject to the rules and subject to any other Act:

(a)   costs are in the discretion of the Court;

(b)   the Court may determine by whom and to what extent costs are to be paid; and

(c)   the Court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis.”

31. The reasoning of the primary judge, as summarised in the judgment of Gaudron and Gummow JJ, was as follows:

“20 In exercising the discretion conferred by s 69(2) of the Court Act by a determination that there be no order as to costs, despite the dismissal of the appellant’s application for injunctive and declaratory relief, the primary judge took various matters into account. They included the following:

(i)   The ‘traditional rule’ that, despite the general discretion as to costs being ‘absolute and unfettered’, costs should follow the event of the litigation ‘grew up in an era of private litigation’. There is a need to distinguish applications to enforce ‘public law obligations’ which arise under environmental laws lest the relaxation of standing by s 123 have little significance.

(ii)   The characterisation of proceedings as ‘public interest litigation’ with the ‘prime motivation’ being the upholding of ‘the public interest and the rule of law’ may be a factor which contributes to a finding of ‘special circumstances’ but is not, of itself, enough to constitute special circumstances warranting departure from the ‘usual rule’; something more is required.

(iii)   The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation ‘other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna’.

(iv)   In the present case, ‘a significant number of members of the public’ shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a ‘public interest’ in the outcome of the litigation.

(v)   The basis of the challenge was arguable and had raised and resolved ‘significant issues’ as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had ‘implications’ for the Council, the developer and the public.

(vi)   It followed that there were ‘sufficient special circumstances to justify a departure from the ordinary rule as to costs’. (footnotes omitted)

32. As noted, the plaintiff relies upon what was said at [48]-[49] and [143] of Oshlack v Richmond River Council. At [49], Gaudron and Gummow JJ said:

“The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ [Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605]:

‘Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area.’

Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that ‘something more’ than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case.” (footnote omitted)

33. Kirby J said, at [143]:

“Once it is appreciated that compensation to the successful party is the reason why that party will ordinarily have a reasonable expectation of recovering its proper costs, the limits of the principle are clear. It says nothing about exceptional or special circumstances which warrant a departure from the general rule. Such departures have quite often arisen in the past, as I have demonstrated. Public interest litigation is just one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule. The possibility of such departure cannot be denied, given the breadth of the statutory language in which the discretion is expressed. In particular, the possibility, contemplated by s 69(2)(b) of the Land and Environment Court Act that the Court ‘may determine by whom and to what extent costs are to be paid’ envisages that, in particular circumstances, an order might be made in favour of a losing party and even to the full extent of that party’s costs. Whilst such orders would be extremely rare, they must be possible given the statutory grant of power. On the face of par (b), there is an express denial of a parliamentary intention that the only applicable rule should be one of compensating the litigious victor with its costs.”

34. It is apparent that these observations were in the context of the costs regime provided by s 69(2) of the Court Act, which allowed an unencumbered discretion as to the awarding of costs, whereas this application for costs is in the context of r 42.1 of the UCPR, which is expressed to be presumptive as to costs “following the event”.

35. Another point of distinction is that a costs order against the appellant in Oshlack v Richmond River Council would have been borne by him personally, whereas in this case it would be borne by the state. As Kirby J said, at [134](6):

“Given that statutory context and the clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of Parliament’s particular purposes.”

36. While an application by the Attorney-General made pursuant to the Act is guided by the objects in s 3, which are protective of the community in nature, it is also appropriate to have regard to the consequences of the orders sought being made, which is to deprive the defendant of his or her liberty, either absolutely or by the imposition of onerous conditions which, if breached, could warrant a return to custody and constitute a serious criminal offence. In those circumstances, an unsuccessful application sounding in a costs order, particularly if it is against the weight of the forensic expert evidence, is hardly inappropriate.

37. In this case, the plaintiff’s case for a CDO, up to and including the first hearing date, was a reasonable one. I am of the view that no order should be made in respect of costs incurred up to and including 20 October 2020, which has the effect that each party is responsible for its own costs for that period.

38. In relation to costs incurred between that date and (including) the hearing on 5 November 2020, it is appropriate that costs follow the event, with the proviso that part of the hearing time was necessary in order to determine the length and conditions of the ESO, but that the length of the ESO imposed was well short of that sought by the plaintiff.

Orders

39. I order as follows:

1. The plaintiff is to pay half the costs of the defendant, as agreed or assessed, that were incurred between 21 October 2020 and 5 November 2020, including the hearing on that date.

**********

Decision last updated: 26 February 2021