Zeltner v Deputy Registrar of the Supreme Court of the Act (No 2)

[2021] ACTSC 278

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Zeltner v Deputy Registrar of the Supreme Court of the ACT (No 2)

Citation:

[2021] ACTSC 278

Hearing Date:

21 October 2021

DecisionDate:

22 October 2021

Before:

Elkaim J

Decision:

See [21]

Catchwords:

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – costs in favour of an unsuccessful party – offer of compromise – discretion on costs

Legislation Cited

Court Procedure Rules 2006 (ACT) r 1012

Cases Cited:

DPP v Deeks (1994) 34 NSWLR 523; 74 A Crim R 85
Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757
Zeltner v Deputy Registrar of the Supreme Court of the ACT [2021] ACTSC 276

Parties:

Carmen Zeltner ( Plaintiff)

Deputy Registrar of the Supreme Court of the ACT ( First Defendant)

Callum Jones ( Second Defendant)

Representation:

Counsel

J Masters ( Plaintiff)

R Graham ( First Defendant)

J Davidson ( Second Defendant)

Solicitors

Marjason & Marjason ( Plaintiff)

The ACT Government Solicitor ( First Defendant)

The Australian Government Solicitor ( Second Defendant)

File Number:

SC 264 of 2021

ELKAIM J:

1. I handed down my decision in this matter yesterday (Zeltner v Deputy Registrar of the Supreme Court of the ACT [2021] ACTSC 276). The plaintiff was unsuccessful.

1. Following delivery of the judgment, the second defendant requested a cost order in its favour including an order for solicitor and client costs for a certain period of time. If successful, the second defendant suggested a fixed costs order be made.

1. The first defendant had submitted to the orders of the court and sought no costs orders in its favour.

1. The plaintiff not only disputed the second defendant’s entitlement to a ‘normal’ costs order but submitted that there should be a costs order in her favour.

1. The second defendant said it was entitled to the costs order that it sought for one or both of the following reasons:

(a)The plaintiff’s case was hopeless.

(b)An offer of compromise had been made under Part 2.10 of the Court Procedure Rules 2006 (ACT) and effect should be given to that offer in accordance with r 1012.

1. For purposes of the costs argument, the second defendant relied upon an affidavit of Mr Harrison Alexander Xavier Rogers, affirmed on 21 October 2021. Mr Rogers is a solicitor with the Australian Government Solicitor. He annexes correspondence between the parties, including a letter from the AGS to the plaintiff’s solicitors dated 3 September 2021 in which the offer of compromise is included.

1. The offer of compromise was to dismiss the originating application with no order as to costs. It was open for acceptance for 14 days.

1. The plaintiff’s position, as set out in both written and oral submissions, was to this effect:

(a)The plaintiff, as an accused person in a criminal trial, was always entitled to view the documents provided to the issuing officer in order to obtain the search warrants.

(b)The plaintiff persistently asked for these documents, including as recently as six days before the hearing, and they were never provided.

(c)The whole of the litigation in the Supreme Court could have been avoided by the simple provision of the documents by the second defendant.

(d)The plaintiff had no choice but to commence the proceedings in the Supreme Court because the Magistrates Court lacked the necessary jurisdiction. Had the jurisdiction existed, the plaintiff, even if unsuccessful, would not have suffered a costs order against her.

(e)The second defendant had not behaved as a model litigant, relying on technicalities, rather than conforming to the basic issue that the plaintiff should have been provided with the documents.

(f)There are cases, such as DPP v Deeks (1994) 34 NSWLR 523; 74 A Crim R 85, in which costs orders in favour of an unsuccessful party have been made.

1. I will deal with the submissions of the parties on a global basis.

1. I do not think the claim was hopeless. The nature of the relief sought was perhaps a little confused but the respective submissions of the parties indicated an understanding of the actual issues before the court, as set out at [14] of the principal decision. The question of whether or not the issuing officer should give reasons for the decision to issue a warrant raises a practical consideration which I think was fairly and appropriately ventilated.

1. The question just described, together with the issue of whether the documents should be retained, are not “technical” points which were improperly taken by the second defendant. I reject the suggestion that the second defendant did not behave as a model litigant.

1. A good deal of the plaintiff’s submissions on costs revolved around the assumed right of disclosure held by the plaintiff for the documents provided to the first defendant. But as seen in [14] this was not a question that was put to me for decision, nor did I decide that the right did or did not exist. Clearly this would have been a matter to have been ventilated had the plaintiff subpoenaed the documents (or issued a notice to produce) which, if resisted, would have placed the right to the documents squarely to be decided. I would also add here that notwithstanding the discussion during the hearing about this aspect, the plaintiff did not ‘succumb to the wind’ and make a call for the documents. This is not a criticism of counsel who clearly had a firm view concerning the respective obligation of which party ought to provide the documents before the court.

1. The point I am endeavouring to make is that the plaintiff’s submissions on costs, which rely on the right of disclosure, are not persuasive, or even influential, on the costs orders I make.

1. It is indeed unfortunate that the Magistrates Court does not have the jurisdiction which would have enabled it to decide this case. The plaintiff however decided to commence these proceedings and in doing so took the risks associated with litigation in any court. I think it important to note that this was not a matter where the plaintiff had some basis for being suspicious of the warrants so that she was compelled to come to the Supreme Court for relief. There has never been, in this matter, any suggestion whatsoever of any impropriety, or suspicion of impropriety, in respect of either the application for the warrants or the issuing of the warrants.

1. The matter of Deeks is distinguishable on many bases, including the question of whether a District Court judge (Moore DCJ) had the jurisdiction to make a costs order in what were ultimately found to be criminal proceedings. But notably, Kirby P (as his Honour then was) emphasised that the respondent, Ms Deeks, had been involved in four proceedings and she had “been put to very considerable inconvenience”. The subjective factors applicable to Ms Deeks do not exist here.

1. I am now brought back to the second defendant’s application for costs. The usual rule is that costs follow the event. Having dealt with the plaintiff’s submissions, which might have affected this basic principle, I can see no reason why a costs order in favour of the second defendant should not be made.

1. I think the position is different in respect of the application for costs pursuant to the offer of compromise. Levy DCJ, in Lee (a pseudonym) v Dhupar (No 2) [2020] NSWDC 757 gave this useful description of the approach to be taken:

34 An application for a special order for costs is a consequential aspect of the administration of the well-established legislative framework of the rules of practice and procedure: s 98 of the CP Act. The broad discretion conferred by that legislative provision is not fettered by, or based upon, any general default position that presumes the ordinary basis of costs to be the starting point for the consideration of an application for indemnity costs: UCPR r 42.1, r 42.2; Wright v Apthorpe [2020] NSWCA 300, at [3], [52]-[54], [70]-[71].

35The exercise of the general discretion for determining the appropriate order for costs in the face of competing considerations should reflect a broad evaluative judgment of what the justice of the case requires: Gray v Richards (No 2) [2014] HCA 47, at [2].

36The determination of an application for indemnity costs must proceed according to the unfettered discretion conferred by the Act and Rules. It must be exercised by reference to the relevant facts connected with or leading up to the litigation where, absent the existence of disentitling factors, the most important guiding principle is that the successful party is generally entitled to a compensatory order for costs. An order of that nature is not punitive but is instead intended to operate as an indemnity against the expense of litigation that should not, in justice, have been visited upon the applicant party: Northern Territory v Sangare [2019] HCA 25, at [24]-[25], following Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [66]-[67], [35], [134].

1. Offers of compromise, under the rules, are designed to assist in the early resolution of litigation and the consequent saving of time and costs. For this reason a departure from the effect of an offer of compromise should not be taken lightly.

1. Nevertheless, I do have a discretion to “order otherwise”, but of course must exercise that discretion according to the justice of the circumstances before me. While I have not, as discussed above, made any finding as to whether the documents prepared for the issuing of the warrants were disclosable, these proceedings may be viewed as the continuing attempt by the plaintiff to obtain the documents against continued refusal. Her perception, as oft repeated by counsel, was that she was entitled to the documents.

1. The plaintiff’s quest for the documents would have been better explored in the Magistrates Court. She had no choice but to proceed in this court where litigation is more expensive. I think that is enough for me to decline the request for a special order.

1. I make the following orders:

1)       No order as to costs as between the plaintiff and the first defendant.

2)       The plaintiff is to pay the second defendant’s costs of the proceedings on a party and party basis.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 22 October 2021