Manna v State of New South Wales (No 2)

1. [1]

   On 30 September 2021, I delivered judgment in proceedings brought by Adriano Manna seeking revocation of an extended supervision order (“ESO”) and, in the alternative, variations to the conditions of that order: Manna v State of New South Wales [2021] NSWSC 1220. Mr Manna failed to have the ESO revoked but succeeded in having substantial variations made to its conditions. These reasons relate to the appropriate orders as to costs and should be read in conjunction with my earlier judgment and with the judgment of Walton J making the ESO in its original form: State of New South Wales v Manna [2017] NSWSC 463.

2. [2]

   The fourth order made on 30 September 2021 (Order 4) was provisional and in the following terms:

3. [3]

   The fifth order (Order 5) was a direction that the parties file written submissions of not more than 4 pages on the issue of costs by Thursday 7 October 2021 if agreement could not be reached. Both parties availed themselves of the opportunity to make submissions.

The State’s submissions

1. [4]

   The State conceded that the costs order proposed in Order 4 was appropriate. Counsel initially provided the following submissions:

The defendant’s submissions

1. [5]

   Senior Counsel for the applicant submitted the costs orders proposed were neither just nor reasonable and made the following submissions:

2. [6]

   Two related misconceptions in Senior Counsel’s submissions must be corrected. First, at no stage in the judgment, or at the hearing, did I describe his conduct as “egregious”. I commented on certain inefficiencies in the conduct of the case. This included, at [35], the failure of Senior Counsel to read the written submissions of the State, which included several compromises and concessions, in advance of the hearing. It also referred at [2] to the “somewhat chaotic manner” in which the case was presented. I also made reference, at [5] and [35], to the fact that the second day of the hearing was lost through no fault of those representing the State and in circumstances where the State was ready to proceed. This issue had no real bearing on the provisional costs order, but merely explained why that order was restricted to the two days the Court actually sat.

3. [7]

   The second misconception in Senior Counsel’s written submissions is the suggestion that Order 4 was calculated to disadvantage Mr Manna as a result of the conduct of his lawyers or the “efficiency of [Senior] Counsel’s work in the courtroom”. On the contrary, the proposed costs order was provisional and invited submissions from the parties.

The State’s submissions in reply

1. [8]

   In view of the content of Mr Manna’s submissions, which were provided on Friday 8 October 2021, after an extension of time was granted, I invited further submissions from the State. Counsel wrote as follows:

Consideration and determination

1. [9]

   Litigation under the Crimes (High Risk Offenders) Act 2006 (NSW) is considered “for many, if not all” purposes to be in the nature of civil proceedings: State of NSW v Guider (No 3) [2020] NSWSC 209. Section 21 provides:

2. [10]

   Section 23 provides that an order for costs “may not be made against an offender in relation to any proceedings under this Act”.

3. [11]

   The Court has a wide discretion as to the award of costs in civil proceedings: Civil Procedure Act 2005 (NSW), s 98(1). Generally, costs will “follow the event” but that general rule is subject to the power of the Court to make some other “order as to the whole or part of the costs”: Uniform Civil Procedure Rules 2005, r 42.1.

4. [12]

   The “event” can be a slippery concept, as it is in the present case. The “event” is not limited to the final overall outcome which in this case is mixed in any event. It can include individual issues in the proceedings: cf Williams v Stanley Jones & Co Ltd [1926] 2 KB 37, Jelbarts Pty Ltd v McDonald [1919] VLR 478. In exercising its discretion, the Court can apportion the costs where there is a mixed outcome, depending on the success of the parties on particular issues: see, for example, Richards v Gray No 2 [2014] NSWCA 83, Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, Capogreco v Rogerson [2016] NSWCA 61. However, in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 at [6], the High Court said there are “good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like”.

5. [13]

   In the present case, the “event” is not easy to define. Mr Manna failed in his application to have the ESO revoked but succeeded in having substantial variations made to the ESO. The most significant variations were the deletion of the conditions requiring electronic monitoring and for Mr Manna to provide schedules of movements. The State opposed those variations.

6. [14]

   Other variations were consented to by the State. I disregard Mr Manna’s submission that “[a]t no time was there any approach made by the Respondent to settle the matter prior to the hearing”. That is an extraordinary submission in circumstances where counsel for the State filed and served written submissions in advance of the hearing consenting to a number of variations and where those submissions had not been read by his opponent before the case began. Further, the jurisdiction under the relevant legislation is not one in which the parties can “settle”, although if experienced counsel agree that particular orders are appropriate, it is likely to reduce the length of the hearing. Finally, Mr Manna persisted in seeking revocation in the face of the State’s consent to some of the variations and, while he is critical of the State’s failure to approach him “to settle the matter”, there is nothing before the Court suggesting his lawyers initiated any discussions.

7. [15]

   Other variations sought by Mr Manna were opposed by the State and I declined to make them.

8. [16]

   This is not a mathematically driven exercise. It is the exercise of discretion based on an evaluation of the justice of the case and the mixed success of the parties.

9. [17]

   Having reconsidered the matter, I am satisfied that the State should bear a greater burden of the costs than I initially proposed. I accept that a considerable amount of the preparation and Court time would have been occupied by the disputed issue concerning the conditions relating to electronic monitoring and schedule of movements. On the other hand, Mr Manna persisted in his application for revocation of the order when that application was without merit at the time it was made.

10. [18]

    I propose to order that the State pay 50% of the applicant’s costs.

Orders

1. [19]

   For the foregoing reasons, I make the following orders:

   1. (1)

      Revoke order 4 in the judgment known as Manna v State of New South Wales [2021] NSWSC 1220.

   2. (2)

      In lieu thereof, order that the respondent (State of New South Wales) is to pay 50% of the applicant’s (Adriano Giuseppe Manna) legal costs as agreed or assessed and based on reasonable preparation and a two-day hearing.