State of New South Wales v Lawrence (No. 2)

1. [1]

   JOHNSON J: On 25 July 2019, I gave judgment with respect to a terrorism intelligence application made by the Attorney General for New South Wales (“Attorney General”) in proceedings under the Terrorism (High Risk Offenders) Act 2017 (“THRO Act”) between the Plaintiff, the State of New South Wales, and the Defendant, Tukiterangi (Tuki) Lawrence: State of New South Wales v Lawrence [2019] NSWSC 946.

2. [2]

   At [95] of that judgment, I noted that the Defendant had made an application that the Attorney General pay the Defendant’s costs of the hearing on 18 July 2019 which had been adjourned because of late steps taken by the Attorney General. As part of the consequential orders made on 25 July 2019, I gave directions for the filing and service of further submissions on the costs issue with the application to be determined on the papers.

Submissions

1. [3]

   The Defendant’s submissions of 22 July 2019 gave notice that a costs application was to be made. The Defendant read the affidavit of Rhiannon McMillan affirmed 22 July 2019 in support of that application.

2. [4]

   Submissions dated 29 July 2019 were filed and served on behalf of the Attorney General with reliance being placed upon the affidavit of Lisa Turner affirmed 29 July 2019 in that respect.

3. [5]

   The Defendant made written submissions in reply dated 30 July 2019 on the costs application.

4. [6]

   The Defendant seeks his costs thrown away as a result of what was said to be a significant change by the Attorney General in his case at the last minute for the purpose of the then scheduled hearing on 18 July 2019. Put shortly, it was submitted that substantial work had been undertaken on behalf of the Defendant to respond to the then broad terrorism intelligence application made by the Attorney General.

5. [7]

   The affidavit of Ms McMillan, a solicitor employed by Legal Aid NSW, outlined the procedural history of the matter from the time of service of the Attorney General’s Notice of Motion on 19 June 2019. Part of the Attorney General’s claim at that time related to a folder containing what were described as “Schedule 1 documents”. It was not until 9.50 am on 18 July 2019 that the legal representatives for the Defendant were informed that the terrorism intelligence application was not pressed with respect to the Schedule 1 documents. This left a much smaller group of documents (the Schedule 2 documents) which required consideration as part of the application. Further, additional affidavits were served on the Defendant by the Attorney General on the morning of 18 July 2019.

6. [8]

   As noted in State of New South Wales v Lawrence at [3], the Court was informed on 18 July 2019 that there had been substantial narrowing of the documents which the Attorney General sought to bring within the terms of s.59A THRO Act. Given that development, the proceedings were adjourned to 23 July 2019 with orders being made for provision of submissions and other material relevant to what was a revised and narrower application.

7. [9]

   The hearing proceeded on 23 July 2019 with judgment being given on 25 July 2019 as noted earlier.

8. [10]

   The Attorney General did not make submissions in opposition to the Defendant’s application for his costs thrown away in relation to the Schedule 1 documents.

9. [11]

   Insofar as the Defendant’s costs application sought an order that the Attorney General pay the entirety of the Defendant’s costs prior to the hearing on 18 July 2019, the Attorney General submitted that such an order should not be made. It was submitted that additional affidavits served on the Defendant on the morning of 18 July 2019 responded to matters raised in the Defendant’s written submissions which had been served by that time. It was submitted that the additional affidavits were necessary for the hearing and determination of the application with respect to the Schedule 2 documents, as to which the Attorney General was successful.

10. [12]

    The Attorney General submitted that costs incurred by the Defendant up until 18 July 2019 in relation to the Schedule 2 documents were properly characterised as being incurred as part of the preparation for the hearing on 23 July 2019.

11. [13]

    The Defendant’s written submissions in reply pressed for an order that the Attorney General pay the entirety of the Defendant’s costs incurred prior to the hearing of 18 July 2019. If the Court did not accept that submission, the Defendant submitted that the Court should order that the Attorney General pay 95% of the Defendant’s preparatory costs and all of the costs of the day of the hearing on 18 July 2019 itself.

Decision

1. [14]

   At the outset, I note that the Court is to disregard the fact that the Defendant is a legally assisted person for the purpose of exercising discretion as to costs: s.42 Legal Aid Commission Act 1979.

2. [15]

   Proceedings under the THRO Act are civil proceedings and, unless the THRO Act makes specific provision, they are to be conducted in accordance with the law relating to civil proceedings: s.50(1) THRO Act. Section 55 THRO Act provides that an order for costs may not be made against an eligible offender (such as the Defendant) in relation to proceedings under that Act. Apart from that limitation, the Court has power to order costs on a discretionary basis under s.98 Civil Procedure Act 2005.

3. [16]

   The Attorney General is not a party to the principal proceedings. Rather, the Attorney General made application under s.59A THRO Act at a relatively early stage of the principal proceedings. As noted in State of New South Wales v Lawrence at [7], this was the first application considered under s.59A THRO Act since amendments were made to that legislation in late 2018. The relative novelty of the application is to be borne in mind in considering the issue of costs. The fact that the application was narrowed to the Schedule 2 documents only appears to reflect a revised approach to a novel application.

4. [17]

   The general rule is that costs should follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005 (“UCPR”). The present costs application is made with respect to an interlocutory application in which the Attorney General was the applicant. Rule 42.7 UCPR has no role to play on this application as the Attorney General’s part in the proceedings is effectively over, subject to any further s.59A issue which may arise.

5. [18]

   It is the case that substantial work was undertaken on behalf of the Defendant with respect to a s.59A application which related to the Schedule 1 documents and the Schedule 2 documents. I accept the Defendant’s submission that a significant part of the work undertaken on behalf of the Defendant prior to 18 July 2019 related to the Schedule 1 documents, which comprised 1,731 pages. The Schedule 2 documents, as pressed on the s.59A application, comprised parts of seven documents only: State of New South Wales v Lawrence at [58]ff.

6. [19]

   At the same time, much of the preparation for the hearing on 18 July 2019 concerned broader issues of law and statutory construction which applied to the s.59A application generally. It would not be correct to order the Attorney General to pay the Defendant’s entire costs in preparation of the hearing on 18 July 2019. Nor, in my view, would it be correct to order that the Attorney General pay a proportion as high as 95% of those costs.

7. [20]

   Having considered all factors relevant to the discretionary exercise on this application, I am satisfied that the appropriate order is that the Attorney General should pay the Defendant’s costs thrown away as a result of the adjournment of the hearing of 18 July 2019. That order should extend to 50% of the Defendant’s preparatory costs for the purpose of that hearing and all of the costs of the day of the hearing itself.

8. [21]

   The Defendant is not entitled to costs with respect to steps taken after 18 July 2019 and the hearing on 23 July 2019, which gave rise to the judgment handed down on 25 July 2019. That hearing concerned the Schedule 2 documents as to which the Attorney General succeeded in obtaining orders as sought in the Further Amended Notice of Motion filed on 23 July 2019.

9. [22]

   Accordingly, I order the Attorney General to pay the Defendant’s costs thrown away as a result of the adjournment of the hearing on 18 July 2019, with those costs to include 50% of the Defendant’s preparatory costs for that hearing and all of the costs of 18 July 2019.