State of New South Wales v Lynn (Costs)

1. [1]

   HIS HONOUR: This is an application for costs made by the defendant to a summons in which the plaintiff was partially successful in seeking orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

The background to the application

1. [2]

   At the time of the application, the defendant was subject to a continuing detention order (“CDO”) that was made, coincidentally, by me on 17 May 2019: State of New South Wales v Lynn (Final) [2019] NSWSC 580. In that judgment, I concluded that the defendant had a history of violent offending and a poor prognosis in respect of reoffending if released back into the community. I noted the contents of a Risk Assessment Report to the effect that the applicant would benefit from successfully completing the Violent Offender Therapeutic Program (“VOTP”) in custody, as follows:

2. [3]

   Later in my judgment, in determining the length of the CDO, I said:

3. [4]

   The defendant appealed the judgment, which was heard by the Court of Appeal on 18 November 2019 and dismissed on 9 December 2019: Lynn v State of New South Wales [2019] NSWCA 300.

4. [5]

   The defendant then indicated his preparedness to participate in the VOTP. He commenced the program on 4 February 2020 and completed it on 13 October 2020. Helen Dimitrios, a psychologist attached to the VOTP program, stated in a report filed on 27 October 2020 (“the Dimitrios report”):

5. [6]

   The CDO was due to expire on 16 August 2020. The summons was filed on 6 July 2020. By way of final relief, the plaintiff sought a CDO for a period of 3 years and, in the alternative, that the defendant be subject to an extended supervision order (“ESO”) for a period of 5 years. Annexed to the summons was a schedule of 54 proposed conditions to the ESO.

6. [7]

   On 14 August 2020, N Adams J made an interim detention order (“IDO”) for a period of 28 days, which was extended to cover the anticipated date of the final hearing of the application: State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066.

7. [8]

   The material prepared for the application included a Risk Assessment Report, dated 2 June 2020. The author, forensic psychologist Dr Richard Parker, noted that the defendant had not completed the VOTP and that he was unlikely to complete it before the CDO expired. Dr Parker considered that even if the defendant did complete the program, his prognosis for refraining from reoffending would not be significantly improved. Dr Parker said:

8. [9]

   Accordingly, Dr Parker supported the application for a further CDO so that the defendant would complete the program.

9. [10]

   Reports were also prepared by forensic experts who were appointed pursuant to orders made by N Adams J. Dr Katie Seidler, forensic psychologist, in a report dated 21 September 2020, concluded that the defendant posed a moderate to high risk of future violent offending and that ESO conditions were unlikely to prevent him from reoffending. She recommended that a CDO be imposed to ensure that he completed the VOTP. Dr Andrew Ellis, psychiatrist, in a report dated 30 September 2020, was more positively disposed to the comparative benefits to the defendant and the community by the defendant being released into the community subject to an ESO rather than being subject to a further CDO.

10. [11]

    On 20 October 2020, which was the fixed date for the final hearing, I was informed that the defendant had completed the VOTP program but that there had not yet been an assessment of his completed performance. The hearing was adjourned until 5 November 2020 to allow for the preparation and service of supplementary forensic reports by the plaintiff.

11. [12]

    When the hearing resumed, supplementary reports by the Court-appointed experts were tendered, along with the Dimitrios report. Ms Dimitrios assessed the defendant as having made some limited progress in the VOTP and made detailed recommendations for further treatment, whether within prison or in the community. Essentially, the Dimitrios report reinforced the opinions of Dr Seidler and Dr Ellis. Dr Seidler did not specifically address the fact that the defendant’s completion of the VOTP had removed her earlier-expressed preference for a continuing CDO, but her reservations as to the defendant’s risk assessment remained centrally relevant to both alternative orders sought by the plaintiff.

12. [13]

    I handed down judgment on 12 November 2020, refusing the order for a CDO and making orders for an ESO for a period of 18 months: State of New South Wales v Lynn (Final) [2020] NSWSC 1584.

13. [14]

    The defendant made an application for costs immediately following judgment being delivered and a timetable was set for the filing of submissions by the parties.

14. [15]

    The defendant tendered affidavit evidence to the effect that on 13 October 2020, the defendant’s solicitor wrote to the plaintiff advising that the defendant had completed the VOTP and would be prepared to consent to an ESO (of unspecified length). He sought consideration be given to amending the summons accordingly. Annexed to the letter was a document setting out the defendant’s position in relation to each of the plaintiff’s proposed conditions to the ESO. The defendant opposed 32 of the 54 proposed conditions, making alternative proposals in relation to some of those objected to. The letter was marked “without prejudice save as to costs”.

15. [16]

    On 19 October 2020, at 6:23pm, the plaintiff sent an email to the defendant attaching a version of the ESO conditions that responded to the defendant’s concerns by withdrawing some conditions that were objected to and proposing alternative wording to some others. The document was a helpful basis for further negotiations between the parties and/or determinations by the Court, should the alternative order sought be made.

16. [17]

    At the hearing on 20 October 2020, the plaintiff indicated that it would press the order for a CDO.

17. [18]

    On 27 October 2020, the defendant wrote a letter to the plaintiff, marked “without prejudice save as to costs”, again requesting that the plaintiff not move on the order sought for a CDO. The defendant drew the plaintiff’s attention to aspects of the Dimitrios report that, in its submission, favoured the imposition of an ESO. The defendant’s letter did not propose a length of the ESO.

18. [19]

    By email dated 4 November 2020, the plaintiff informed the defendant that it declined to discontinue its application for a CDO.

The parties’ submissions

1. [20]

   The defendant submitted (and the plaintiff accepts) that, having regard to s 21 of the Act, proceedings pursuant to the Act are civil in nature and the ordinary position applies in relation to costs orders for civil proceedings, subject to s 23 of the Act. Section 23 provides that:

2. [21]

   Conformably with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), if the court does make an order for costs, it should “follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs”.

3. [22]

   The defendant submitted that, in view of the history of the correspondence between the parties from and including 13 October 2020, an order for costs should be made, as agreed or assessed. In particular, the defendant submitted that:

4. [23]

   The plaintiff submitted that the appropriate costs order is that each party pay its own costs. The “event”, to adopt the terms of r 42.1 of the UCPR, “in this case was not an unqualified victory for the defendant in relation to the matters that remained in dispute at the final hearing”. In relation to the submissions of the parties as to the appropriate ESO conditions, 11 of the conditions imposed at the hearing were resisted by the defendant. Eight other conditions had not been consented to, until that final stage. Further, the plaintiff submitted, “[t]he State was successful on nearly every dispute between the parties as to conditions”. Accordingly, even if the plaintiff had not pressed its application for a CDO, a contested hearing would have been necessary, and would have involved some of the same issues, such as the nature and magnitude of the risk posed by the defendant.

5. [24]

   The plaintiff submitted that, even if the parties were in agreement, it remained necessary for the Court to be independently satisfied of the appropriateness of the agreed orders, thus warranting a hearing. The plaintiff noted that in State of New South Wales v Guider (No 3) [2020] NSWSC 209, Button J said that this aspect of the scheme did not make it sui generis so as to justify a departure from the ordinary approach to costs, but submitted that, nevertheless, it remained a matter to be taken into account in the exercise of the Court’s discretion.

6. [25]

   Further, at the time of the first hearing on 20 October 2020, the defendant had only recently completed the VOTP and the available interim reports were not favourable to the defendant’s progress.

7. [26]

   The plaintiff submitted that the primary object of the Act expressed in s 3(1), which is to ensure the safety and protection of the community, is an important consideration in determining the appropriate costs order: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [48]-[49] and [143]. The plaintiff submitted:

Consideration

1. [27]

   The plaintiff’s application for a CDO, as of 20 October 2020, had significant merit. Although the defendant had completed the VOTP a week before, there was no assessment of his performance that was available to the parties and Dr Parker had expressed a view that even if he did, it would make little difference to his risk assessment.

2. [28]

   The hearing on 5 November 2020 lasted until approximately 2:50pm. Some of the hearing time was occupied by issues that were equally relevant to both alternative orders that were sought, particularly the evidence concerning the risk of the defendant committing serious offences of violence. Most of the time after morning tea, until the close of the hearing at around 2:50pm, was spent on consideration of the proposed conditions of an ESO.

3. [29]

   I am of the view that the case of Oshlack v Richmond River Council is of little assistance on the issue of costs in a high-risk offender hearing. It concerned an order by the primary judge dismissing an application for costs by a defendant who had successfully resisted an application brought by a member of the public, Oshlack, to restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”). The order was overturned in the Court of Appeal and then appealed by Oshlack (“the appellant”).

4. [30]

   Section 69(2) of the Land and Environment Court Act 1979 (NSW) (“the Court Act”) (since repealed) provided as follows:

5. [31]

   The reasoning of the primary judge, as summarised in the judgment of Gaudron and Gummow JJ, was as follows:

6. [32]

   As noted, the plaintiff relies upon what was said at [48]-[49] and [143] of Oshlack v Richmond River Council. At [49], Gaudron and Gummow JJ said:

7. [33]

   Kirby J said, at [143]:

8. [34]

   It is apparent that these observations were in the context of the costs regime provided by s 69(2) of the Court Act, which allowed an unencumbered discretion as to the awarding of costs, whereas this application for costs is in the context of r 42.1 of the UCPR, which is expressed to be presumptive as to costs “following the event”.

9. [35]

   Another point of distinction is that a costs order against the appellant in Oshlack v Richmond River Council would have been borne by him personally, whereas in this case it would be borne by the state. As Kirby J said, at [134](6):

10. [36]

    While an application by the Attorney-General made pursuant to the Act is guided by the objects in s 3, which are protective of the community in nature, it is also appropriate to have regard to the consequences of the orders sought being made, which is to deprive the defendant of his or her liberty, either absolutely or by the imposition of onerous conditions which, if breached, could warrant a return to custody and constitute a serious criminal offence. In those circumstances, an unsuccessful application sounding in a costs order, particularly if it is against the weight of the forensic expert evidence, is hardly inappropriate.

11. [37]

    In this case, the plaintiff’s case for a CDO, up to and including the first hearing date, was a reasonable one. I am of the view that no order should be made in respect of costs incurred up to and including 20 October 2020, which has the effect that each party is responsible for its own costs for that period.

12. [38]

    In relation to costs incurred between that date and (including) the hearing on 5 November 2020, it is appropriate that costs follow the event, with the proviso that part of the hearing time was necessary in order to determine the length and conditions of the ESO, but that the length of the ESO imposed was well short of that sought by the plaintiff.

Orders

1. [39]

   I order as follows: