Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Landrey v Director of Public Prosecutions (NSW) (No 2) [2023] NSWCA 27 Hearing dates: On the papers Date of orders: 24 February 2023 Decision date: 24 February 2023 Before: Ward P; Simpson AJA; Basten AJA Decision: (1) Dismiss the motion filed by the first and second defendants on 3 November 2022. (2) Order that the first and second defendants pay the plaintiff's costs of the motion. Catchwords: CIVIL PROCEDURE – costs – variation of order – motion seeking to have the unsuccessful plaintiff pay costs of two defendants – defendants appearing in same interest and jointly represented – defendants both emanations of the State – one set of costs awarded Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(3A), 36.17 Category: Costs Parties: Geoffrey Vance Landrey (Plaintiff) Director of Public Prosecutions (NSW) (First Defendant) State of New South Wales (Second Defendant) Local Court of New South Wales (Third Defendant) Representation: Counsel: G D Wendler (Plaintiff) M G Sexton SC / J S Caldwell (First and Second Defendants) Solicitors: Whitfields Solicitors (Plaintiff) Karen Smith, Crown Solicitor (Defendants) File Number(s): 2022/00152434 Publication restriction: N/A [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: On 21 October 2022, the Court handed down judgment dismissing a summons filed by Mr Landrey in the Common Law Division and removed into this Court. The summons challenged the constitutional validity of provisions in the Criminal Procedure Act 1986 (NSW) governing the procedures and powers of the Local Court in conducting committal proceedings for offences to be prosecuted on indictment. The summons was dismissed and the applicant ordered to pay the costs of the Director of Public Prosecutions of and incidental to the summons: order (4). 2. On 3 November 2022, the Director and the State of New South Wales (the first and second defendants respectively) filed a notice of motion seeking a variation of the costs order so that it would require the applicant to pay the costs of both the State and the Director of and incidental to the summons. (The motion also sought an order for the costs of the motion.) Power to vary order 1. The submissions on the motion raise an issue as to the availability and the source of the Court's power to vary the order. The orders were entered on 21 October 2022. The Court's power to vary an order once entered turns on compliance with the requirements of r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). The notice of motion filed on 3 November 2022 complied with that requirement. It is not necessary to consider the submission that the Court has power to correct the order under the "slip rule" in r 36.17. Whether power should be exercised 1. As the solicitor for the applicants on the motion conceded, the question of costs was not addressed in submissions at the hearing. The final paragraph of the reasons of the Court stated: "73 It follows that the constitutional challenge to the validity of the scheme in its present form must be rejected. The applicant must pay the costs of the Director, being the active party in this Court." 1. It is evident from that statement that the Court did not disregard the fact that there were two respondents. Nor was there any suggestion that the State was not a proper party, given the constitutional challenge to the validity of a State law. Whether or not different emanations of the State separately incurred costs was immaterial, although it was assumed that that was the case. The defendants were jointly represented in the proceedings, as was to be expected. The intention of identifying the "active" party was to give effect to the conclusion that there should be only one set of costs payable by the plaintiff. 2. No reason has been put forward as to why there was error in requiring the plaintiff to pay only one set of costs. Had separate orders been thought appropriate, they could have been sought in written submissions, or at the oral hearing. That did not happen. There was no suggestion that the Director (being the first defendant and the party conducting the impugned proceeding in the Local Court) was not the party bearing the cost of running the proceeding. 3. In the absence of any basis for reopening the entered order, the application should be rejected and the notice of motion dismissed. Costs of motion 1. Each party sought costs of the motion, if successful. That is, both the State of New South Wales and the Director of Public Prosecutions sought their costs of the motion: as success on the motion would not have affected the position of the Director, the basis for his claim was obscure. In the event, no reason has been proffered as to why the applicants on the motion should not pay Mr Landrey's costs of the motion. That order should be made. Orders 1. The Court makes the following orders: 1. Dismiss the motion filed by the first and second defendants on 3 November 2022. 2. Order that the first and second defendants pay the plaintiff's costs of the motion. ********** 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: 24 February 2023