Clark v State Parole Authority of New South Wales (No 2) [2011] NSWSC 1491

Supreme Court New South Wales

Medium Neutral Citation: Clark v State Parole Authority of New South Wales (No 2) [2011] NSWSC 1491 Hearing dates: 23 November 2011 Decision date: 23 November 2011 Jurisdiction: Common Law Before: Walmsley AJ Decision: Applicant's application for costs refused Catchwords: Costs in criminal cases Legislation Cited: Crimes (Administration of Sentences) Act 1999 Cases Cited: LMS v Parole Board [1999] NSWCCA 371; (1999) 110 A Crim R 172 Latoudis v Casey (1990) 170 CLR 534 Category: Costs Parties: Wayne Scott Clark (Applicant) State Parole Authority of New South Wales (First respondent) Attorney General of New South Wales (Second respondent) Representation: P Segal (Applicant) A C Johnson (Second respondent) In person (Applicant) I V Knight, Crown Solicitor (Respondents) File Number(s): 2010/410464

judgment 1The applicant made an application under section 155(1)(b) of the Crimes (Administration of Sentences) Act 1999. He did so after his application for parole had been declined by the Parole Authority. In the course of the application, it was submitted on his behalf that the Parole Authority had made its decision based on information which had been false, misleading or irrelevant. 2For reasons which I gave on 14 October 2011, I accepted his counsel's submission and said a case had been made out for relief and that a direction should be given to the Parole Authority under section 155(1)(b). 3I invited the parties to seek agreement on the form of the direction to be given and I stood the matter over until today so that that agreement could be reached. 4Today, I was informed by Ms Johnson for the respondent and Mr Segal for the applicant that the parties had reached agreement on the form of the direction to be given. In a moment, I propose giving that direction. 5Mr Segal, however, informed me today that because of the success of the applicant, he sought an order for costs. 6I should say that when the matter was in the course of argument before me on 20 September 2011, Ms Johnson informed me that on the assumption that the application failed, the Attorney General would not apply for an order for costs. I took her to say that that represented the Attorney General's policy in these matters. 7Mr Segal, however, submitted to me that as I am exercising jurisdiction in the Common Law Division of this Court, there is a general principle that costs should follow the event; the event here is his client's success in persuading me to make a relevant direction, and, accordingly, the order should be given. 8He told me that his client had not been the recipient of a legal aid grant, but that his fees had been paid by him or his family. 9I consider that I should refuse the application. This is an application in the criminal jurisdiction of the court. Traditionally costs in criminal cases are not awarded in the absence of some statutory power to authorise such an order: Latoudis v Casey (1990) 170 CLR 534 at 557 (per Dawson J). 10Mr Segal was not able to draw my attention to any statutory warrant for my making an order of the kind he sought. He conceded that the matter has been considered previously by the Court of Criminal Appeal and that decision, LMS v Parole Board [1999] NSWCCA 371; (1999) 110 A Crim R 172, does not assist him. 11In LMS v Parole Board , the facts were not dissimilar from those here, in the sense that the applicant succeeded in persuading the Court to direct the Parole Board that certain information on which its decision had been based was misleading. At the conclusion of those proceedings the successful applicant sought an order for costs. At paragraph 24 the Court, consisting of Stein JA, Hulme and James JJ, said: "The applicant sought certain costs. That application is entirely misconceived and this Court lacks power to grant any such application." 12Mr Segal submitted to me that since LMS was decided, the legislation which was there being considered by the Court of Criminal Appeal, has been amended. Their Honours in LMS were considering merely the precursor to the Crimes (Administration of Sentences) Act 1999. Thus, he put to me, I am not bound by what the Court of Criminal Appeal decided in LMS. 13However, the Crimes (Administration of Sentences) Act , as I took him to concede and as Ms Johnson put to me, is in almost identical terms to that which was considered by the Court of Criminal Appeal in LMS . I consider I must follow LMS . Further, Mr Segal could not draw my attention to any part of the Crimes (Administration of Sentences) Act which contains any provision giving me power to make a costs order of any type, let alone that which he seeks here. 14Accordingly, I am not persuaded that I have the power to award costs and I consider that I must refuse the application. 15So I refuse the application for costs. 16The order that I make is that which has been agreed by the parties, namely this: "I make an order directing the State Parole Authority, under section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) that, in so far as paragraph 7 of the Serious Offenders Review Council report dated 14 December 2010 suggested that the applicant had refused to participate in any therapeutic programs post-release, that paragraph was misleading, as it did not take into account that the applicant had agreed to undertake the CALM program in the community, and to wear an anklet, and to see a psychologist post-release." 17I will initial and date the consent order and place it in the file.