Hamzy v Commissioner of Corrective Services and the State of NSW (No.2)

1. [1]

   The plaintiff in this matter brought four separate sets of proceedings against the defendants in which he:

2. [2]

   Only the matters in (i) and (ii) proceeded to a contested hearing. I am now required to resolve the question of costs in respect of all four proceedings. I have had the benefit of written submissions from both parties in that regard.

3. [3]

   Section 98(1) of the Civil Procedure Act 2005 (NSW) confers a discretionary power on the Court in respect of costs in the following terms:

4. [4]

   The fundamental principle which guides the exercise of the discretion contained in s 98 is that costs should follow the event, and that the successful party is prima facie entitled to his or her costs by way of indemnity against the expense of litigation. [1]

The judicial review proceedings and the RDA proceedings

1. [5]

   Each of these proceedings brought by the plaintiff proceeded to a contested hearing. Both proceedings were dismissed. [2]

2. [6]

   The submissions filed on behalf of the plaintiff do not address the question of the costs in either of these proceedings. There is no reason why, the plaintiff having been unsuccessful, that he should not be ordered to pay the defendants’ costs of each proceeding on the usual basis.

The USB proceedings

1. [7]

   The USB proceedings were proceedings in which the plaintiff sought an order for the return of a USB drive which had been seized from his cell. I was informed at the commencement of the hearing of the judicial review proceedings and the RDA proceedings that the USB proceedings had been resolved on the basis of an agreement between the parties that the USB drive in question, which had remained in the custody of the Court, be returned to the plaintiff's representatives. At that point I made an order dismissing the proceedings and reserved the question of costs.

2. [8]

   The history of the USB proceedings reflects the fact that the terms in which they were brought were unnecessarily complicated, raised extraneous issues (including issues requiring notice to be given under s 78B of the Judiciary Act 1903 (Cth)) and caused the defendant to incur unnecessary costs. That said, the inescapable fact is that the proceedings were resolved on the basis of the USB which had been seized by the defendant being returned to the plaintiff.

3. [9]

   In all of these circumstances the appropriate order is that each party pay its own costs of the USB proceedings.

The BMP proceedings

1. [10]

   It is been submitted on behalf of the plaintiff that an order should be made for costs in his favour in these proceedings on the basis that if Parliament had not amended the Crimes (Administration of Sentences) Act 1999 (NSW) by the insertion of s 65A, the plaintiff would have succeeded in the proceedings. That, in my view, is an entirely speculative proposition.

2. [11]

   The majority of the costs in the BMP proceedings are essentially referable to the judicial review proceedings and the RDA proceedings. In those circumstances it is appropriate that each party pay their own costs of the BMP proceedings.

Orders

1. [12]

   For the reasons given I make the following orders:

   1. (1)

      In respect of proceedings 2016/276127, the plaintiff is to pay the defendants' costs as agreed or assessed.

   2. (2)

      In respect of proceedings 2016/276186, the plaintiff is to pay the defendants' costs as agreed or assessed.

   3. (3)

      In respect of proceedings 2018/41479, each party is to pay its own costs.

   4. (4)

      In respect of proceedings 2017/177196, each party is to pay its own costs.