State of New South Wales v Matthew David Cornish

[2020] NSWSC 278

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Matthew David Cornish [2020] NSWSC 278
Hearing dates:	13 March 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	The Court grants leave to discontinue. That leave is conditioned upon two matters: 1. The plaintiff pay the defendant's costs of and incidental to the proceedings as agreed or taxed; 2. The plaintiff not proceed for orders under the Terrorism (High Risk Offenders) Act against the defendant without leave of the Court.
Catchwords:	HIGH RISK OFFENDERS – withdrawal of application – Court imposed requirement for leave to re-apply PRACTICE and PROCEDURE – withdrawal after notification that adjournment opposed – leave to withdraw granted on condition of costs and leave to re-apply
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017
Cases Cited:	State of New South Wales v Ceissman (2018) NSWSC 508 UBS AG v Tyne [2018] HCA 45; 92 ALJR 968
Category:	Procedural and other rulings
Parties:	State of New South Wales Matthew David Cornish
Representation:	C. Melis (Plaintiff) D. Buchanan SC (Defendant) S. Lawrence (Defendant)
File Number(s):	2019/392922

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is the first of many applications, this one by the plaintiff to discontinue proceedings. To discontinue proceedings at this point requires the leave of the Court, although it would be rare for the Court to force on a plaintiff. There are circumstances that might warrant the refusal of leave.

2. The application before the Court is an application under the Terrorism (High Risk Offenders) Act 2017 (the “Act”). The Act was analysed in the first application made under the Act by me in State of New South Wales v Ceissman (2018) NSWSC 508.

3. Largely, that judgment deals with the satisfaction of the Court and the necessary requirements for the making of an interim supervision order, or continuing an interim detention order, not with issues such as whether it is appropriate to strike out proceedings, for example, because they have no merit or do not otherwise satisfy provisions of the Act. I hasten to add, there is no application to strike out the proceedings.

4. The issue between the parties, for obvious reasons, is that the plaintiff seeks to discontinue the proceedings and the defendant seeks to protect, or counsel appearing on behalf of the defendant seeks to protect, the defendant from what might otherwise be a subsequent application that reiterates or “patches up”, to use the expression used by counsel, the difficulties associated with the application with which the Court is now dealing.

5. The Court notes that the application for discontinuance follows immediately upon a motion filed with the Court, or my associate, for an application for the adjournment of today's proceedings, which adjournment application was opposed by the defendant, without in any way commenting on the correctness or otherwise of the allegations that were made by plaintiff and defendant.

6. The defendant opposed the adjournment application on the basis that there were, in its view, significant shortcomings in the material that was before the Court on the application of the plaintiff, such that orders would not be made on the basis of the application, or the application would not proceed beyond today. The defendant sought to have that matter agitated today.

7. Prior to the communication that the defendant was opposing the adjournment application, there was correspondence between the parties, which is exhibit 1 on the discontinuance application, in which, inter alia, the plaintiff says that "The plaintiff is not likely to be in a position to run the preliminary hearing tomorrow."

8. The issue before the Court is not uncomplicated. Ordinarily in civil proceedings an application for discontinuance, if granted, does not give rise to any estoppel, Anshun or otherwise. Nor does it preclude a plaintiff from proceeding subsequently with a cause of action that is similar to or the same as the cause of action that has been discontinued.

9. A fortiori that may be the situation where the plaintiff is exercising a right granted by the legislature, and on one view perhaps, a duty required by the legislature, to ensure, inter alia, the safety of the community.

10. This Act, and the High Risk Offenders Acts on which it was based, or its drafting was based, are unusual statutes. Hitherto, so-called protective detention was anathema to the common law. These statutes provide for protective detention in circumstances where a person can be seen as posing a risk of a kind described by the Act.

11. The defendant seeks an order of the Court that the plaintiff not be at liberty to re-apply in relation to orders of this kind, on the basis of material that the plaintiff currently possesses and upon which this application could be based. Thus proposals that have come forward from the defendant and the plaintiff as to an appropriate basis upon which discontinuance would be granted have failed to obtain the agreement of the other party, on the basis of the degree to which any such further application would be limited or the requirement upon one or other party to satisfy the Court of what might otherwise be a significant bar.

12. The High Court recently, in relation to civil proceedings, in a case called UBS AG v Tyne [2018] HCA 45; 92 ALJR 968 dealt with subsequent applications after a discontinuance, and whether and in what circumstances such a subsequent application would amount to an abuse of process.

13. It is fair to say, leaving the facts of that case aside, that whether it amounts to abuse of process will depend very much on the situation that is before the court. It does not seem to me that I can, in advance, rule that some matter is or is not an abuse of process, or should or should not be allowed to proceed.

14. Further, it seems to me that to the extent that it can be said that the application for discontinuance, if there be a subsequent application, is a process which seems to avoid the Court dealing with the adjournment application, that would be a process that was frankly inconsistent with the duties imposed on the State of New South Wales as a model litigant.

15. Having addressed all of those issues, and made that as clear as I can without it precluding any further application, it seems to me the Court should do this. The Court will grant leave to discontinue. That leave will be conditioned upon two matters: first, the plaintiff pay the defendant's costs of and incidental to the proceedings as agreed or taxed; secondly, that the plaintiff not proceed for orders under the Terrorism (High Risk Offenders) Act against the defendant without leave of the Court.

16. I make it clear that the leave aspect is not confined to time nor to offence, but I am not suggesting or making comment on whether leave would or would not be granted if, for example, a further offence that is, based upon historical material was charged or in the circumstances where fresh material is available. That frankly must be a matter for the Court on any re-application.

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Amendments

23 March 2020 - [7] quote amended in accordance with the slip rule.