State of NSW v Guider (No 3)
[2020] NSWSC 209
•09 March 2020
Supreme Court
New South Wales
Medium Neutral Citation: State of NSW v Guider (No 3) [2020] NSWSC 209 Hearing dates: 09 March 2020 Decision date: 09 March 2020 Jurisdiction: Common Law Before: Button J Decision: (1) The plaintiff must pay the costs of the defendant of the proceedings pertaining to the final hearing including the costs of today.
Catchwords: HIGH RISK OFFENDER – continuing detention order sought by the plaintiff refused – extended supervision order of 5 years imposed – extended supervision order not opposed by defendant – position of defendant communicated to plaintiff before final hearing – question of costs in those circumstances – plaintiff to pay costs of the defendant relating to the final hearing Legislation Cited: High Risk Offenders Act 2006 (NSW) ss 21, 23
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: State of NSW v Guider [2019] NSWSC 646
State of NSW v Guider (No 2) [2019] NSWSC 1145Category: Costs Parties: M Guider (Defendant)
State of NSW (Plaintiff)Representation: Counsel:
Solicitors:
G Lewer (Defendant)
D Kell SC & J Davidson (Plaintiff)
O’Brien Solicitors (Defendant)
Crown Solicitor’s Office (Plaintiff)
File Number(s): 2019/53538
revised ex tempore Judgment
Introduction
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This is a dispute about costs after the conduct of proceedings pursuant to the High Risk Offenders Act 2006 (NSW) (the Act).
Background
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In a nutshell: what was sought in the substantive proceedings by the State as plaintiff was a continuing detention order (a CDO). What I ended up imposing at the conclusion of the final hearing was an extended supervision order (an ESO): see State of NSW v Guider (No 2) [2019] NSWSC 1145. Some months beforehand, after a preliminary hearing, I had imposed an interim detention order (an IDO): see State of NSW v Guider [2019] NSWSC 646.
Analysis
Clear consent position of defendant
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The position of Mr Michael Guider (the defendant) in my opinion was made clear through his lawyers eight days before the final hearing; namely, that an ESO would not be opposed; nor would its proposed duration of five years be opposed; nor would the proposed conditions (as they then were) be opposed, subject to a question of wording: see the affidavit of Elliot Rowe of 3 September 2019, annexed letter of 12 August 2019, at paragraph 1.
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It is true that, as often happens in my experience in hearings such as these, things were clarified as the day proceeded, and it was not until about 12.30 p.m. that the question of conditions of any ESO – which of course was ancillary at that stage, bearing in mind the primary relief sought by the plaintiff – was completely settled between the parties as to wording: see the email to my Associate that became exhibit B in these costs proceedings.
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But I think that, speaking globally in a way that I think is appropriate for a question of costs, this question must be approached on the basis that, for days before the final hearing, the legal team of the defendant had made it clear that the imposition of an ESO would not be opposed.
Statutory interpretation
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Section 21 of the Act makes it clear that, for many if not all purposes, proceedings pursuant to the Act are to be thought of as civil proceedings. Furthermore, Parliament has seen fit to set out a particular provision about costs; namely, s 23 of the Act. That provision makes it clear that, even if the plaintiff is completely successful in proceedings pursuant to the statute, costs cannot be ordered against a defendant.
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In other words, I think there is some significance in the fact that Parliament, although it has “turned its mind” to costs, has said nothing about the question of costs as against the plaintiff being any different, in the context of the Act, from the entirely orthodox position in civil matters generally.
Unique orders necessitating a hearing?
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It is true, as the plaintiff submits, that, speaking generally, one cannot consent to orders under the Act in the same way perhaps that one can consent to orders in other civil proceedings, which usually involve questions of money as opposed to liberty, or property as opposed to liberty.
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Having said that, I do not think that it is, with respect, quite right to say that consent orders in other civil settings are made automatically, or virtually automatically. I think that very often there is an imposition of judicial assessment, even with regard to consent orders in that context.
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In other words, I do not accept that this Act, to use the phrase of senior counsel for the plaintiff, is sui generis (“of its own kind” or unique) in that regard.
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I do accept, however, that this statue is at a particular “end of the spectrum” in that, by its nature, the orders that one makes under the Act are not ones that could just be made by consent in Chambers whereby, for example, a person might be detained in gaol for two years without reasons being given.
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The other aspect that makes me think that this Act is not of its own nature, but is rather part of the spectrum is that, in truth, some orders pursuant to it are indeed made in Chambers by consent, or virtually by consent. For example, the renewal of an ISO is often, I believe, effected in that way.
Practicalities of different kinds of hearings
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Separately, it is true, as the plaintiff submits, that there would have needed to have been a hearing, even with regard to the position of a lengthy ESO to which the defendant consented. But the CDO proceedings were hard fought, and highly detailed. They required cross-examination of a number of expert witnesses. They required deep reflection on my part, and a final judgment that, whilst hardly lengthy, was not concise.
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As a practical matter, as I said at [6] of my final judgment, if the joint position had been that there should be an ESO only, apart from the reading of lengthy and moving victim impact statements, I believe that the hearing would have been very short indeed. As [6] has shown, I would have regarded the joint position of the parties as soundly appropriate, if not inevitable, and I believe that my judgment would have been very concise.
Orthodox approach to costs in civil matters
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Speaking more generally, I think that the situation here is really just an example of civil proceedings with the following attributes. The plaintiff has sought the greater relief. The defendant has made it clear that the defendant consents to the lesser relief. There has been a hard fought hearing about the greater relief. Ultimately, the judge has ruled in favour of the defendant, by only granting the lesser relief.
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In other words, to the extent that Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) speaks of costs following the event, I believe that “the event” here was a litigious victory for the defendant. So that, as an application of the general rule that costs follow the event, I believe that if these proceedings were, for example, a notice of motion seeking some sort of interlocutory relief, I would order costs without difficulty for the defendant. To repeat respectfully: the defendant consented to the lesser relief, the plaintiff sought the greater, there was a hard fought dispute about the greater, and ultimately the defendant succeeded, in that the lesser relief was granted.
Apportionment of costs?
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In terms of apportionment, which is the fall-back position of the plaintiff, I respectfully do not believe that that is called for. I say that because, in any proceedings, one can analyse them for the purpose of costs and find minute matters that were, as it were, tiny skirmishes that went one way or another. But here speaking generally, the success of the defendant in me not being persuaded of the greater relief in the form of a CDO, and in me only ordering the lesser relief in the form of an ESO, was comprehensive.
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I also think that in disputes about costs there can be a “point of diminishing returns”, whereby it just becomes inapposite to seek a division based upon a minute analysis of how the proceedings were conducted. To repeat if I may: eight days before the date of the final hearing, there was a letter sent by the solicitor for the defendant to the solicitors for the plaintiff, making it quite clear that an ESO of five years on the proposed conditions (subject to wording) would not be opposed.
Explanation of practical effect of order
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I think it is important to make clear that, in truth, my order pursuant to this judgment will merely effect a redistribution of sums between two State instrumentalities. That is because it is perfectly clear that the defendant personally is not out of pocket whatsoever. Accordingly, the entirety of the costs ordered will simply be to recompense Legal Aid NSW. I emphasise that, the defendant not being “out of pocket”, there is not the slightest question of him being placed “in pocket” by this judgment. It is being made perfectly clear that the entirety of the costs will go to Legal Aid, as a matter of recompense.
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[Further submissions were received, whereby counsel for the defendant made it clear that she sought the costs of the costs hearing, but did not seek costs pertaining to the preliminary hearing. Senior counsel for the plaintiff indicated that the former could not be resisted.]
Orders
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In short, my order is:
The plaintiff must pay the costs of the defendant of the proceedings pertaining to the final hearing including the costs of today.
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Decision last updated: 09 March 2020
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