New South Wales Supreme Court CITATION : ESHO v PAROLE BOARD AUTHORITY OF NSW & ANOR [2006] NSWSC 345 HEARING DATE(S) : 15 March 2006 JUDGMENT DATE : 28 April 2006 JUDGMENT OF : Rothman J at 1 DECISION : Second Defendant pay the claimant's costs of and incidentnal to the proceedings, as agreed or assessed. CATCHWORDS : Administrative law - substantive proceedings - prerogative relief - costs CASES CITED : Esho v Parole Authority of NSW [2006] NSWSC 304 Claimant: ESHO, Edward PARTIES : Defendant 1: Parole Board Authority of New South Wales Defendant 2: Attorney Generals Department FILE NUMBER(S) : SC 30013/2006 COUNSEL : Claimant: Ms Bashir Defendants: Mr Hoy (AGD) SOLICITORS : Claimant: Justin Le Blond Defendants: Anne Bonner (Crown Solicitor) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST JUSTICE ROTHMAN 28 April 2006 Edward ESHO v PAROLE BOARD AUTHORITY OF NEW SOUTH WALES 30013/2006 JUDGMENT 1. His Honour: On 21 April 2006 I made orders in the nature of prerogative relief quashing the determination of the New South Wales Parole Authority and requiring the Parole Authority to convene and determine the application for parole by the claimant. I published Reasons for Judgment with which these reasons need to be read: Esho v Parole Authority of NSW [2006] NSWSC 304. 2. The substantive proceedings were before me on 15 March 2006 and were the subject of written submissions thereafter. Further directions were made on 18 April 2006 and I reserved to the parties the issue of costs of and incidental to the proceedings. A concern expressed at the hearing on 21 April 2006 was the power to order costs against to the Attorney General in circumstances where the Attorney General was not a party to the proceedings. The first opponent, the Parole Authority, had filed a submitting appearance and had submitted to any order of the Court save as to an order for costs. 3. In ordinary circumstances it is inappropriate to make an order for costs against an administrative tribunal which submits to any order of the Court on an administrative review of a decision of that tribunal. At the time that these issues were raised on 21 April 2006, I had not had drawn to my attention consent orders made by the Court on 23 February 2006, by Registrar Howe, that the contradictor, the Attorney General, be joined as the second defendant pursuant to the Rules. 4. In those circumstances, there is no impediment to treating the Attorney General as a party and ordering costs in the ordinary way. By written submission dated 21 April 2006 the claimant sought a costs order against the opponent, which I take to mean the New South Wales Parole Authority, and by submission dated 26 April 2006, the Attorney General drew attention to his status as a party, neither consented nor opposed the award of costs and raised no discretionary reasons as to the making of such an order. 5. The claimant has been wholly successful and, in accordance with the Rules, costs would ordinarily follow the event. I order that the second defendant pay the claimant's costs of and incidental to the proceedings, as agreed or assessed. ********** 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.