Zakaria (as Tutor for SA) v New South Wales Crime Commission (No 2)

[2016] NSWSC 1136

Supreme Court

New South Wales

Medium Neutral Citation:	Zakaria (as Tutor for SA) v New South Wales Crime Commission (No 2) [2016] NSWSC 1136
Hearing dates:	2 February 2016, 26 April 2016 and written submissions.
Date of orders:	17 August 2016
Decision date:	17 August 2016
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1)   Application for a different order for costs dismissed; (2)   Order three (3) of the orders issued on 26 April 2016 vacated.
Catchwords:	COSTS – Administrative Law – summons dismissed with costs – plaintiff argues for no costs on basis of general issue of importance and “misconduct” of defendant – neither argument made out – no good reason to exercise discretion in a manner other than ordinary course – costs should follow the event.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Cabal v United States of Mexico (No 6) [2000] FCA 651; (2000) 174 ALR 747 Perrett v Commissioner for Superannuation (1991) 23 ALD 257
Category:	Costs
Parties:	Dawood Zakaria (as Tutor for SA) (Plaintiff) New South Wales Crime Commission (First Defendant) Peter Hastings in his capacity as Commissioner of the New South Wales Crime Commission (Second Defendant)
Representation:	Counsel: S Lawrence (Plaintiff) A Shearer (Defendants)   Solicitors: Blair Criminal Lawyers (Plaintiff) Crown Solicitor’s Office (Defendants)
File Number(s):	2015/209617

Judgment

1. HIS HONOUR: These proceedings challenged a summons to give evidence issued by the New South Wales Crime Commission (“the Commission”) on the grounds of procedural fairness. The matter was heard on 2 February 2016 and judgment and reasons for judgment issued on 26 April 2016. The judgment reserved to the parties any application for a different or special order for costs. These reasons for judgment (and the judgment) deal with an application by the Plaintiff that, in the highly unusual circumstances of this case, there should be no order for costs.

2. The power of the Court to deal with costs is a broad one codified in s 98 of the Civil Procedure Act 2005. The general rule is that costs follow the event. This is not a punishment, but compensation for the requirement to enforce or defend the party’s costs.

3. The proceedings before the Court were by way of application for orders in the nature of prerogative relief, certiorari, and ancillary orders associated with jurisdictional error by the Commission. Ordinarily, such matters are matters on which costs are sought and obtained.

4. In this matter, the plaintiff submits, relying upon the judgment in Perrett v Commissioner for Superannuation (1991) 23 ALD 257, that no costs should be awarded. In that case, the issue with which the Tribunal was there concerned was an issue on which various courts had differed and which had presented difficulties of interpretation.

5. Further, the plaintiff relies on the principle set out by the late Goldberg J in Cabal v United States of Mexico (No 6) [2000] FCA 651; (2000) 174 ALR 747, in which the Federal Court said:

“[22]    Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained.”

6. In relation to the discretionary factors, the plaintiff relies upon the comments in the substantive judgment, at [51] and [52], relating to the UN Convention on the Rights of the Child that has been ratified by Australia.

7. The difficulty with the reliance upon that passage is that firstly, the Court did not determine that a summons to give evidence was “an action concerning a child”, which is the relevant precondition for the application of the UN Convention. Secondly, the “best interests of the child” would be and is a “primary consideration” in any consideration by the Commission of any objection taken to any evidence given. The plaintiff has not succeeded in an assertion that the Commission would do otherwise. It is true that the first defendant did not concede the applicability of the UN Convention. Nor should it. The Court has significant difficulty with arriving at a conclusion that it applied to a summons to give evidence.

8. On the other hand, the first defendant did make clear that the plaintiff’s legal representative could show no reason why the plaintiff would be denied the opportunity to make submissions that the plaintiff should not be required to answer questions relating to the relationship between he and the person who was the subject of investigation or that such submissions could not be put at the outset of the hearing.

9. The fact, if it be the fact, that the Commission did not concede issues that were not directly advanced by the plaintiff in its summons, is hardly the basis upon which the ordinary rule that costs should follow the event should be displaced.

10. I accept that it is always difficult for an individual to challenge government. This is particularly so when the agency of the government has coercive powers as does the Commission.

11. Nevertheless, the issue between the parties in these proceedings was whether the Commission was bound to afford the plaintiff a hearing as to whether a summons should issue. The real issue that the plaintiff wished to agitate was whether the plaintiff could be required to give evidence against a person with whom he was close. That issue should have been the subject of submissions to the Commission at the time that the summons was returnable.

12. The Commission may have dealt with the decision it was required to make in a number of ways. One of them was to grant the objection and dismiss the summons or allow the plaintiff to be questioned only on a limited number of issues of fact.

13. If, despite the submission having been put, the Commission decided against the objection, that would have been an exercise of its discretion and challengeable for an error of law on the face of the record or jurisdictional error. If the Commission refused to hear the objection that would have been jurisdictional error as a denial of procedural fairness. In the latter two cases, urgent relief could have been sought from this Court.

14. The plaintiff did not allow those obvious steps to occur but, rather, sought to pre-empt any exercise of discretion by the Commission by a preliminary attack on the issue of the summons on grounds that were (and were found to be) unsuccessful and premature and, in that prematurity, almost unarguable.

15. In my view, no grounds have been shown to displace the ordinary rule that costs should follow the event and I dismiss the subsequent application for a different order for costs. I make it clear that I am not suggesting in the foregoing sentence that an onus is placed on the defendant in this application. The costs of this subsequent application are and will be covered by the order that the plaintiff pay the first defendant’s costs of and incidental to the proceedings, as agreed or assessed.

16. The Court makes the following orders:

1. Application for a different order for costs dismissed;

2. Order three (3) of the orders issued on 26 April 2016 vacated.

**********

Decision last updated: 18 August 2016