BP v State of New South Wales

1. [1]

   THE COURT: On 31 July 2019, the appellant sought leave to appeal out of time from decisions of Wright J in the Supreme Court in State of New South Wales v BP (Preliminary) [2019] NSWSC 699 and State of New South Wales v BP (No. 2) [2019] NSWSC 806. The appeal was heard in this Court on 29 August 2019 and the decision reserved. In the course of the hearing that leave was granted by the presiding judge.

2. [2]

   For the reasons that follow leave to appeal out of time should be revoked and the proceedings dismissed.

Relevant facts

1. [3]

   On 14 June 2019, Wright J made the following relevant orders under the Terrorism (High Risk Offenders) Act 2017 (NSW):

2. [4]

   On 28 June 2019, Wright J imposed an interim supervision order in these terms:

3. [5]

   On 29 August 2019, this Court heard the appeal from Wright J’s orders. By reason of the delay in commencing the appeal, the first psychological report ordered by Wright J, which was prepared by Dr K Seidler, had already become available and became MFI 1 on the appeal. That report appeared to be inconsistent with the respondent’s case. The Court was informed that the second psychiatric report which had been ordered, from Dr K Eagle, was due to be received by the respondent in the near future. The Court granted leave to the respondent to notify it of any change in the respondent’s position in relation to the underlying proceeding as a result of receiving Dr Eagle’s psychiatric report.

4. [6]

   On 30 August 2019, Bellew J renewed the interim supervision order:

5. [7]

   On 3 September 2019, the Court received an email stating:

6. [8]

   Later on 3 September 2019, Bellew J made the following orders:

7. [9]

   On 4 September 2019, the Court communicated to the parties in the following terms:

8. [10]

   The respondent consented to the orders identified in that email. On 5 September 2019, the appellant replied:

9. [11]

   In relation to the appellant’s principal point, that he wishes to challenge the “finding” of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; [1968] HCA 91 per Barwick CJ and Kitto J:

10. [12]

    The same point has been made on many occasions in this Court. See, for example, TriCare (Hastings) Limited v Allen [2015] NSWCA 344:

11. [13]

    In relation to the orders made by Wright J on 14 June 2019:

    1. (1)

       Order 1 is a pseudonym order from which there was no appeal; and

    2. (2)

       Order 2 is now spent.

12. [14]

    The orders made by Wright J on 28 June 2019 and renewed on 30 August 2019 have been revoked.

13. [15]

    There is no longer any operative order of the Court which may be the subject of an appeal. There is no occasion for this Court to determine a challenge to the reasons given by Wright J for making orders which have no continuing operative effect.

14. [16]

    In relation to the appellant’s second suggested reason that this Court determine the appeal despite the change in circumstances, damage to the appellant’s reputation, the appellant was granted a pseudonym “BP” by Wright J and that pseudonym order remains in force. The operative order subjecting the appellant to a deprivation of liberty has been revoked. There is no arguable damage to BP’s reputation in those circumstances and no occasion, in any event, to determine a challenge to the reasons given by Wright J for making orders which have no continuing operative effect.

15. [17]

    For these reasons the Court makes the following orders:

    1. (1)

       Leave to appeal out of time revoked.

    2. (2)

       Proceedings dismissed.

16. [18]

    There remains the question of costs. As to the costs of the proceedings below, they should be determined by a judge of the Common Law Division, as the parties contemplate.

17. [19]

    As to the appellant’s application for an order for costs in this Court, the proceedings have now been resolved without a hearing on the merits. The relevant principles in such a case were summarised recently in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84, applying Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 as follows:

18. [20]

    On the face of it, this is not a case where this Court should make a costs order in favour of the appellant. Both parties appear to have acted reasonably in resolving the underlying proceeding, and it cannot be concluded from the fact that the State has discontinued its claims for final relief that it was not justified in seeking and obtaining the interim orders at issue in the appeal. That different questions arise in relation to such interim and final orders was clearly recognised by this Court in State of New South Wales v Naaman (No 2) [2018] NSWCA 328:

19. [21]

    On the information presently available to the Court it cannot be concluded that the respondent has capitulated in relation to the interim regime it originally sought. Rather, having received a psychological report and a psychiatric report which appear to be inconsistent with the respondent’s original claim, the respondent has quite properly consented to the revocation of the interim supervision order. In accordance with principle, this Court should not embark on a hearing of the merits of the appeal for the purpose only of addressing the question of costs.

20. [22]

    On the basis of the material before us we would make no order as to costs of the appeal. However, as the parties have not been heard on this question, if either of them proposes an order other than the order the Court is presently minded to make, leave is granted to each to file written submissions by email to the Associate to Payne JA not exceeding three pages by 4pm on Wednesday 11 September 2019. The Court would then determine the costs question on the papers.