Supreme Court New South Wales Medium Neutral Citation: Manna v State of New South Wales (No 2) [2021] NSWSC 1384 Hearing dates: Written submissions dated 7, 8 and 15 October 2021 Date of orders: 28 October 2021 Decision date: 28 October 2021 Jurisdiction: Common Law Before: Hamill J Decision: (1) Revoke order 4 in the judgment known as Manna v State of New South Wales [2021] NSWSC 1220. (2) In lieu thereof, order that the respondent (State of New South Wales) is to pay 50% of the applicant's (Adriano Giuseppe Manna's) legal costs as agreed or assessed and based on reasonable preparation and a two-day hearing. Catchwords: CIVIL LAW – high risk violent offender – extended supervision order – application for revocation and variation – where application met with mixed success – appropriate orders as to costs Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 13, 21, 23 Civil Procedure Act 2005 (NSW) s 98 Civil Procedure Act 2005 (NSW) s 98(1) Uniform Civil Procedure Rules 2005 r 42.1 Cases Cited: Jelbarts Pty Ltd v McDonald [1919] VLR 478 Manna v State of New South Wales [2021] NSWSC 1220 State of New South Wales v Manna [2017] NSWSC 463 State of NSW v Guider (No 3) [2020] NSWSC 209 Williams v Stanley Jones & Co Ltd [1926] 2 KB 37 Category: Principal judgment Parties: Adriano Giuseppe Manna (Applicant) State of New South Wales (Respondent) Representation: Counsel: E Ozen SC (Applicant) A Mykkeltvedt (Respondent) Solicitors: Abbas Jacobs Lawyers (Applicant) Crown Solicitors Office (Respondent) File Number(s): 2016/00350556 Publication restriction: Nil Judgment 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. The fourth order made on 30 September 2021 (Order 4) was provisional and in the following terms: "Subject to the parties making written submissions or reaching agreement on the issue of costs, the respondent (State of New South Wales) is to pay 25% of the applicant's (Adriano Giuseppe Manna's) legal costs as agreed or assessed and based on reasonable preparation and a two-day hearing." 1. 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. The State conceded that the costs order proposed in Order 4 was appropriate. Counsel initially provided the following submissions: "INTRODUCTORY 1. These submissions are prepared on behalf of the State of NSW (the respondent) in response to the Court's request for short written submissions in respect of the appropriateness of the Court's proposed costs order. 2. The Court's proposed order is that the respondent pay 25% of the applicant's costs, as agreed or assessed. The respondent accepts that such an order would be an appropriate exercise of the Court's discretion. RELEVANT PRINCIPLES 3. Pursuant to s. 21 of the Crimes (High Risk Offenders) Act 2006, the proceedings are civil proceedings and are to be conducted according to the law applicable to such matters. 4. Section 98 of the Civil Procedure Act 2005 gives the Court a wide discretion in relation to costs orders, providing, inter alia, that the Court has "full power to determine by whom, to whom and to what extent costs are to be paid." The ordinary rule as to costs is recorded in r. 42.1 of the Uniform Civil Procedure Rules 2005, which provides that costs 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". THE COURT'S DETERMINATION 5. The primary position of the applicant was that the Extended Supervision Order (ESO) made on 24 April 2017 should be revoked." 6. The respondent successfully resisted the revocation application, which the Court has indicated "did not have much merit, or was at least precipitous". 7. Having made that determination, it fell to the Court to consider the alternative relief sought by the applicant, being the variation of the ESO. 8. In that connection, the applicant sought the variation of the following conditions: a. conditions regarding electronic monitoring and schedule of movements (Conditions 4 – 10); b. conditions regarding accommodation and curfew (Conditions 11 – 15); c. conditions regarding employment (conditions 20 – 23); d. conditions regarding drugs, alcohol and non-association (conditions 24 – 29); and e. conditions regarding search and seizure (conditions 36 – 40). 9. The applicant successfully obtained a variation of the electronic monitoring and schedule of movements conditions, such that those conditions were deleted, subject to provision for reinstatement in the event of a breach of the ESO. A variation of that type was opposed by the respondent. 10. Otherwise, a number of the other conditions were varied in ways that aligned either partly or wholly with the compromise position proposed by the respondent. In particular: a. condition 21 was varied in line with the respondent's proposal; b. the application to vary condition 28 was refused, having regard to the amended direction issued by the respondent in relation to non-association; c. the variations added as conditions 37(c) and (d) aligned with the concession made by the respondent. 11. The accommodation and curfew conditions were not varied. THE APPROPRIATE APPROACH 12. Having regard to the Court's conclusions, as summarised above, it is accepted that the approach to costs proposed by the Court would be an appropriate exercise of the Court's discretion as to costs. 13. It is submitted that no greater apportionment of costs would be appropriate in the case; the respondent successfully resisted the primary application for revocation, which – as noted above – the Court has described as lacking in merit. 14. Additionally, had the application been confined to one for variation, it is likely that the matter would have taken a significantly different course. 15. In particular, much of the lengthy cross-examination of Kelli Grabham appears to have been directed to establishing that the administration of the ESO was so oppressive that the Court should revoke the ESO. The Court did not accept that the ESO had operated in such a manner, noting that "the majority of decisions made were reasonable and understandable". Had revocation not been sought, it is likely that the matter could have been resolved significantly more expeditiously. ORDERS SOUGHT 16. For the reasons set out above, the State accepts that, in line with the indication given by the Court in its judgment, it would be appropriate to order that the State pay 25% of the applicant's legal costs as agreed or assessed." (Footnotes omitted.) The defendant's submissions 1. Senior Counsel for the applicant submitted the costs orders proposed were neither just nor reasonable and made the following submissions: "1. The Applicant, having made an application for revocation or variation of the ESO made against him, was met with the Respondent's case. This consisted of, amongst other things, the affidavit of Ms Grabham. 2. The Respondent, as its primary position, opposed either the recission, or any alteration of the ESO then in place. A large bundle of materials was prepared on behalf of the Respondent and served on the Applicant. Part of this material was the affidavit of Mr Grabham. Ms Grabham's affidavit asserted certain conclusions in support of why it was said that it was necessary that the ESO, in its current form, should continue. Her testimony was to the effect that she had come to the conclusions outlined in her affidavit regarding each of the categories of the conditions of the ESO after having reviewed the matter, in particular the OIMS casenotes. 3. As was more than once stated by her during cross-examination on the first day, those casenotes ran to some 1400 pages. Ms Grabham asserted she had not read all of them, nor was she familiar with them such as to be able to answer questions in cross examination without further opportunity to review those same notes. 4. In order to make good any challenge to the efficacy of the orders in their current form, or at all, it was necessary to review those casenotes on behalf of the Applicant. This was a very time consuming task. Many of the Court's findings, particularly at [16], were only open to be made after the evidence going to those matters was placed before the court. Ms Grabham had to be cross examined on those discrete areas. It was only possible to do this after having read the entirety of Mr Manna's ESO file, including the casenotes. On behalf of the Applicant, it is submitted that the Court's proposed costs order is not a fair and reasonable assessment for the following reasons: I. Whilst the Applicant's primary position was rejected, significant variations were made to the ESO. Each of these was, as the primary position of the Respondent made clear, opposed. The time taken to establish the unreasonableness of those conditions would have been necessary whether the Applicant sought variation of the ESO as an alternative, or as the only relief sought. II. Regardless of any finding with respect to the reasonableness or otherwise of the cross-examination, the preparation work was necessary. It is not fair and reasonable to discount to 25% the costs associated with that preparation on the basis of an assessment of the efficiency of Counsel's work in the courtroom. III. The costs that accrued as a result of the work done by the Applicant's solicitors ought not be discounted at all. They bear no responsibility for the forensic decisions made by counsel during the hearing of the matter. IV. On several occasions on the first day of cross-examination, Ms Grabham answered questions about specific areas going to various categories of the ESO by saying that she would need to go back and review the OIMS casneotes. Further that since there were so many (1400 pages), she considered it unreasonable for the Applicant to ask her about specific notes, even when they were before her. Regardless of the Court's view as to the approach taken by counsel, Ms Grabham, and the Respondent, were, given her answers, properly given the opportunity to review the casenotes more closely, and indeed, invited to put additional casenotes before the Court. This would have necessitated a second day in court regardless of any forensic decision made on the Applicant's behalf. V. It was the Respodent's (sic) choice to have Ms Grabham as the only person whose testimony was to be relied upon. It may well be that if a particular case officer or officers had been called, that their direct knowledge of the case may have shortened the proceedings. This is not the fault of the Applicant, or his counsel. VI. In any event, even if the Court were to conclude that the second day of hearing was entirely the fault of the Applicant's counsel, the appropriate order would be to award costs to the Applicant, but only for the reasonable preparation of the matter, and one day's counsel's costs in court. The costs of the solicitor, as stated above, ought not be reduced at all. VII. The Applicant notes that even though its primary position was that the ESO be rescinded, the application had, as an alternative, prayed for variations to the ESO. At no time was there any approach made by the Respondent to settle the matter prior to the hearing, or after the first day of hearing 5. In conclusion, it is submitted that in the present matter, there is no reason why costs ought not follow the event. Even if counsel's handling of the matter at hearing was as egregious as suggested, the costs award of 25% of the actual costs is neither fair, nor reasonable." 1. 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. 2. 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. 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: "INTRODUCTORY 1. These submissions are prepared on behalf of the State of NSW (the respondent) in response to the Court's request for further short written submissions in reply to the applicant's submissions of 8 October 2021 (AS). They supplement the respondent's submissions filed on 7 October 2021 (costs submissions). 2. Subsequent to the Court's determination in Manna v State of New South Wales [2021] NSWSC 1220 (ESO Decision), the parties entered into good faith negotiations with a view to resolving the question of costs. The respondent made an offer to pay the applicant's costs in the amount of $20,000 (see correspondence at Annexure A to these submissions), which represented 28.4% of the applicant's solicitor-client costs (which are of course larger than would likely be allowed on any assessment). The applicant rejected this offer and made a counter-offer of $30,000. The parties were ultimately unable to agree in relation to either the appropriate portion of the applicant's costs to be paid, or as to their quantum (see correspondence at Annexure B). POSITION TAKEN BY THE STATE AT HEARING 3. It is not correct to say that the State opposed any variation of the ESO (cf AS [2], [4](i)). The matter was brought on for hearing quickly following the case management orders of 20 July 2021. Those orders listed the matter for hearing on 2 August 2021 and provided for the filing of submissions and evidence by both parties in the intervening two weeks. The respondent was not called upon to provide a separate response to the amended summons; its position was as set out in its written submissions of 29 July 2021 which, as noted in the costs submissions, opposed revocation and set out a number of proposed variations to conditions. 4. In this respect, it is to be recalled that Ms Grabham was a witness called by the respondent, not an embodiment of it. The respondent's position was put in its submissions, not Ms Grabham's evidence (cf AS [2]). THE APPROPRIATE COSTS ORDER 5. The respondent successfully opposed the primary relief sought by the applicant, that being the revocation of the ESO. By virtue of s. 23 of the Crimes (High Risk Offenders) Act 2006 (the Act), the respondent is not permitted to seek its costs of that aspect of the proceedings. 6. It is, however, appropriate that significant weight be ascribed to that aspect of the ESO Decision in making a determination as to costs; were it not for s. 23 of the Act, it may have been open to the respondent to contend that, in light of the outcome of the revocation application and the concessions made in respect of some of the conditions, the appropriate costs order was one in the respondent's favour. 7. That being so, an order that the respondent pay 25% of the applicant's costs would not be the result of a process of "discounting" by reference to "forensic decisions made by counsel" (AS [4](iii)). Rather it would be an appropriate exercise of the Court's discretion as to costs, having regard to the respondent's success on the primary issue, the fact of the respondent's concessions in respect of particular conditions, the operation of s. 23 of the Act, and the Court's assessment of the reasons the proceeding exceeded the time estimate. 8. As concerns the latter aspect, the respondent repeats the observation at [15] of the costs submissions that had revocation not been sought, the cross-examination of Ms Grabham could have been significantly curtailed. 9. Finally, it is necessary to note that any costs ordered against the respondent should be assessed on the ordinary basis; there is nothing to suggest that an order for indemnity costs would be appropriate (cf the suggestion at AS[4](iii) that the applicant's solicitor's costs should not be discounted at all)." Consideration and determination 1. 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: 21 NATURE OF PROCEEDINGS Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. 1. Section 23 provides that an order for costs "may not be made against an offender in relation to any proceedings under this Act". 2. 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. 3. 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". 4. 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. 5. 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. 6. Other variations sought by Mr Manna were opposed by the State and I declined to make them. 7. 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. 8. 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. 9. I propose to order that the State pay 50% of the applicant's costs. Orders 1. For the foregoing reasons, I make the following orders: 1. Revoke order 4 in the judgment known as Manna v State of New South Wales [2021] NSWSC 1220. 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. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2021