State of New South Wales v Church (Costs) [2021] NSWSC 1407

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Church (Costs) [2021] NSWSC 1407 Hearing dates: 27 August 2021 Date of orders: 2 November 2021 Decision date: 02 November 2021 Jurisdiction: Common Law Before: Bellew J Decision: The plaintiff is to pay the defendant's costs of the proceedings, including the costs of the preliminary hearing, as agreed or assessed. Catchwords: HIGH RISK OFFENDER – Costs – Whether the defendant should have the benefit of an order for the costs of the proceedings including the costs of the preliminary hearing – Where the plaintiff brought proceedings pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) seeking an Interim Supervision Order and an Extended Supervision Order – Where the defendant was made the subject of an Interim Supervision Order following a preliminary hearing – Where that order was made largely upon a documentary risk assessment in which the defendant declined to participate – Where the Court made an order for psychiatric and psychological assessments of the defendant and the provision of expert reports detailing the results of those assessments – Where those assessments were conducted with the defendant's co-operation – Where the proceedings were ultimately dismissed following a final hearing taking into account those assessments – Where the defendant sought an order for his costs of the proceedings – Where the plaintiff accepted that it should pay the defendant's costs associated with the final hearing but argued against a costs order in respect of the preliminary hearing – Exercise of discretion – Consideration of relevant statutory provisions – Onus on the plaintiff to establish that the Court should exercise its discretion to depart from the general rule that costs follow the event – Where proceedings brought in the public interest – Extent to which the defendant's failure to co-operate in the initial assessment should disentitle him to an order for costs in his favour – Scheme of the Act – Majority of preparatory work undertaken for the purposes of the preliminary hearing – Where it would operate unfairly to the defendant if he were not given the benefit of an order for the costs of the proceedings – Where the defendant had offered to resolve the matter on the basis that no costs would be sought if the proceedings were discontinued – Where the plaintiff rejected that proposal – Order made requiring the plaintiff to pay the defendant's costs of the proceedings including the costs of the preliminary hearing Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Aid Commission Act 1979 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Ruddock and ors v Vardalis and ors (2001) 188 ALR 143; [2011] FCA 1865 State of New South Wales v Church (Final) [2021] NSWSC 713 State of New South Wales v Church (Preliminary) [2021] NSWSC 246 State of New South Wales v Guider (No 3) [2020] NSWSC 209 State of New South Wales v Lawrence (No 2) [2019] NSWSC 1018 State of New South Wales v Lynn (Costs) [2021] NSWSC 143 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Uniform Civil Procedure Rules 2005 (NSW) Waterman v Gerling (Costs) [2005] NSWSC 1111 Category: Costs Parties: State of New South Wales – Plaintiff/Respondent on Motion Cody Nigel William Church – Defendant/Applicant on Motion Representation: Counsel: A Casselden SC and C Palmer – Plaintiff/Respondent on Motion J Stratton SC and M Castle – Defendant/Applicant on Motion