Kable v DPP [1999] NSWSC 95

New South Wales Supreme Court CITATION : Kable v DPP [1999] NSWSC 95 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 11667/9; 12469/95; 12775/95 HEARING DATE(S) : 10/2/99 JUDGMENT DATE : 19 February 1999

PARTIES : GREGORY WAYNE KABLE v DIRECTOR OF PUBLIC PROSECUTIONS JUDGMENT OF : Sully J

COUNSEL : M. Leeming DPP A. Neil-Smith Kable SOLICITORS : Crown Solicitor DPP Brezniak Neil-Smith & Co CATCHWORDS : DECISION : Notices of Motion dismissed with Costs

8

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

19 February 1999

11667/95 - GREGORY WAYNE KABLE v DIRECTOR OF PUBLIC PROSECUTIONS 12469/95 - GREGORY WAYNE KABLE v DIRECTOR OF PUBLIC PROSECUTIONS 12775/95 - GREGORY WAYNE KABLE v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

1 HIS HONOUR: On 15 July 1998 Mr. Gregory Wayne Kable, ["the applicant], filed three Notices of Motion, one in each of the three sets of proceedings, the file numbers of which are noted above. Each Notice of Motion is in identical terms and seeks the following relief: "1. That leave be granted for the plaintiff to re-open the proceedings. 2. That the defendant should pay to the plaintiff the costs of the action: and 3. Such further order/s as the Court thinks fit." 2 The Director of Public Prosecutions is respondent to each Notice of Motion. 3 The background against which the Notices of Motion fall to be determined is most conveniently explained in the form of a chronology. I adopt for that purpose the chronology forming part of the written submissions put in by learned counsel for the respondent. 4 The following general chronology is common to all three of the present Notices of Motion: 6 December 1994 - Community Protection Act assented to January 1995 - Various interim orders made 23 February 1995 - Levine J orders Mr. Kable to remain in custody until 22 August 1995 9 May 1995 - Court of Appeal (1995) 36 NSWLR 374 dismisses appeal from decision of Levine J 12 September 1996 - High Court (1996) 189 CLR 51 allows appeal from decision of Court of Appeal. 5 The following chronology is particular to the proceedings numbered 11667/95: 11 May 1995 - Summons filed by Mr. Kable seeking revocation of orders made 23 February 1995 6 June 1995 - Amended summons filed by Mr. Kable 22, 23, 29, 30 June, 4, 7 July 1995 - Hearing before Sully J (Mr. Kable represented by senior counsel) 19 July 1995 - Sully J dismisses amended summons 15 July 1998 - Mr. Kable files notice of motion seeking costs 6 The following chronology is particular to the matters 12469 of 1995 and 12775 of 1995: 11 June 1995 - Summons (12469/95) filed by Mr. Kable seeking revocation of orders made 23 February 1995 31 July 1995 - Summons (12775/95) filed by DPP seeking orders pursuant to s5 of the Act 14, 15, 16, 18 August 1995 - Hearing before Grove J (Mr. Kable represented by senior counsel in 12775/95) 21 August 1995 - Grove J refuses Mr. Kable's application for a revocation, and also refuses the DPP's application for a second preventative detention order. 15 July 1998 - Mr. Kable files notices of motion seeking costs in each of 12469/95 and 12775/95 7 Proceedings 12469/95 - When the three Notices of Motion were called on for hearing, the applicant's solicitor intimated that the applicant did not press this particular Notice of Motion. I made a formal order dismissing the Notice of Motion; and reserved any resulting question of costs. 8 Had this particular Notice of Motion been pressed, it would have been dealt with at the same time as the other two Notices of Motion. That the Notice of Motion was not pressed does not appear either to have added to, or to have reduced, the costs entailed in the contested hearing of the remaining two Notices of Motion. Any costs particular in a strict sense to the abandoned Notice of Motion would be, as best I can judge from the available material, de minimis. 9 In those circumstances, I think that the just course is to make no order as to the costs of this particular Notice of Motion. 10 Proceedings 11667/95 and Proceedings 12775/95 - Both these Notices of Motion were heard together. The two Notices of Motion raise identical issues for present decision. It is convenient, therefore, to deal with them simultaneously. 11 The first matter to be considered is the effect, for present purposes, of the decision of the High Court of Australia striking down the Community Protection Act 1994. 12 The essential point to be made in that regard is, in my opinion, that the decision of the High Court did not have the effect of creating retrospectively, and for the benefit of the applicant, an entitlement to costs such as the applicant now claims. 13 The relevant principles are not in doubt. They are discussed in terms relevant to the present matters in the decision of the Court of Criminal Appeal: Reg. v Unger (1977) 2 NSWLR 990: see in particular per Street CJ at 995B-G. 14 It follows, in my opinion, that the present applications must succeed, if they are to succeed at all, upon some basis or bases other than that decision of the High Court of Australia. The applicant points, in that regard, to the inherent power of this Court to re-open, in a proper case, any of its judgments; and to the cognate powers conferred by SCR Part 40 Rule 9; part 20 Rule 10; Part 42 Rule 12 and Part 52 Rule 1(c) and (5). 15 As to SCR Part 20 Rule 10, it is sufficient to say that this particular Rule addresses the correction of what is described by the Rule itself as " ……….. a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order ……..". The facts of the present matters do not fall within this Rule. 16 As to the other particular Rules of Court which I have earlier mentioned, and as to any relevant inherent power of the Court, it is not necessary, in my opinion, to embark, in connection with the present applications, upon a lengthy examination of the particular Rules themselves; or to embark, otherwise, upon an intricate discussion of legal principle. For, even if it be assumed in favour of the present applicant that the powers which he now prays in aid do have the potential scope for which he now contends, it remains the fact that each and every one of such powers, whether inherent or not, is a discretionary power. 17 Any discretionary power which falls to be considered in connection with the present applications, must be exercised fairly in the context of the facts and circumstances particular to those applications. The relevant facts and circumstances, as disclosed by the evidence, seem to me to be these: 1. The applicant did not seek from me in July 1995, and he did not seek from Grove J in August 1995, an order for costs such as he now seeks, or any other costs order. 2. On each of those earlier occasions, the applicant was represented by experienced Senior Counsel. 3. Subject to one exception to which I shall come presently, there is no evidence before this Court, whether from the plaintiff, from his Senior Counsel , or from his solicitor, explaining why no application for costs was made on either of those earlier occasions. 4. The exception to what has just been said lies in the proposition, put orally by the solicitor for the applicant during the course of his oral submissions at the recent hearing, that he had "overlooked" the potential availability of an order for costs. 5. I accept that what the applicant's solicitor thus said represents his honest present recollection of what happened in 1995; although I am bound to say that, given the nature of the litigation in 1995 and the vigour with which it was conducted, I find the suggestion of such an oversight rather surprising. 6. I think, however, that any advantage that might flow to the present applications from an acceptance that there was, in fact, such an oversight in 1995, - and on two distinct occasions at that, - is cancelled out by the countervailing discretionary considerations that go to what I might describe compendiously as the public interest. 7. Those considerations of public interest do not call for extended present discussion. It is now something like 2-1/2 years since the proceedings before me, and subsequently before Grove J, were finalised in this Court. It would take, in my opinion, a very clear and a very compelling case to justify any exercise in the applicant's favour of any discretionary power, now properly available to this Court, to re-open after such a lapse of time an issue as to the applicant's entitlement, as now asserted, to costs. It suffices to say that I am wholly unpersuaded that such a case has been made out on the evidence adduced by the applicant in support of the present applications. 18 For the whole of the foregoing reasons, I have come to the conclusion that the applicant has not established his entitlement to the relief that he seeks in his Notices of Motion. Both Notices of Motion are, accordingly, dismissed with costs.