Supreme Court New South Wales Medium Neutral Citation: Monteiro v Parole Authority of New South Wales [2016] NSWSC 903 Hearing dates: 28 June 2016 Date of orders: 01 July 2016 Decision date: 01 July 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) An order in the nature of certiorari quashing the decision of the First Defendant on 27 November 2015 not to reconsider its initial decision to refuse parole to the Plaintiff. (2) An order in the nature of mandamus remitting for determination in accordance with law the decision pursuant to s 141 Crimes (Administration of Sentences) Act 1999 (NSW) as soon as reasonably practicable. (3) The Second Defendant is to pay the Plaintiff's costs in the sum of $23,000. (4) No order as to the costs of the First Defendant. Catchwords: PROCEDURE – costs – settled proceedings -administrative review – decision of Parole Authority to refuse parole -– proceedings settled shortly prior to hearing date – late amendment to grounds of appeal – defendant concedes relief by reason of new ground of appeal – relief as claimed ordered by consent – claim by plaintiff for costs – whether plaintiff entitled to costs since amendment – whether plaintiff entitled to costs preceding amendment – lump sum costs order – proportionality – time and cost in assessment – lump sum ordered relating to amended ground Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Supreme Court Rules 1970 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Casella v Director of Public Prosecutions (NSW) [2016] NSWSC 204 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Monteiro v R [2014] NSWCCA 277 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622 Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811 Category: Costs Parties: Simon Monteiro (Plaintiff) Parole Authority of NSW (First Defendant) Attorney-General of NSW (Second Defendant) Representation: Counsel: H Dhanji SC (Plaintiff) Submitting Appearance (First Defendant) D Hume (Second Defendant) Solicitors: Tully & Chiper Lawyers (Plaintiff) Crown Solicitors Office (First and Second Defendants) File Number(s): 2016/46109 Judgment 1. The Plaintiff was sentenced to a total term of imprisonment of 12 years and three months with a non-parole period of seven years and nine months commencing on 8 January 2008: Monteiro v R [2014] NSWCCA 277 at [5]-[8]. The Plaintiff became eligible for parole on 8 October 2015. The total sentence is due to expire on 7 April 2020. 2. In accordance with s 137(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) the State Parole Authority was required to consider the Plaintiff's release to parole at least 60 days before his parole eligibility date. On 7 August 2015 the Authority considered the Plaintiff's release to parole. On that date the Authority "formed a decision to refuse parole" and notified the Plaintiff by Notice dated 12 August 2015 in accordance with s 139(1) of the Act. In response to the Notice the Plaintiff sought a review hearing and provided submissions to the Authority with respect to his parole including an affidavit he swore on 20 October 2015. 3. On 27 November 2015 the Authority advised the Plaintiff that his application for a review hearing was refused. The Notice also informed the Plaintiff that its decision to refuse parole on 7 August was to stand and provided reasons for that decision concerning his need to complete a sex offending and violence program and because of poor prison performance. 4. As a result of the refusal the Plaintiff commenced the present proceedings by Summons filed 12 February 2016. The Summons sought that the decision of 7 August 2015 by the Parole Authority be set aside on the basis that the Authority had fettered its discretion by adopting a fixed rule policy that the Plaintiff had to complete courses before he was assessed as suitable for release and/or that the Authority had misconceived its statutory functions by limiting the circumstances in which it might consider the Plaintiff as suitable for parole to a favourable mental health assessment and a favourable report on insight without having prior regard to the purpose of the parole period. 5. On 2 June 2016 an Amended Summons was filed which completely abandoned the relief sought in relation to the decision of 7 August 2015 and sought instead that the decision of the Parole Authority on 27 November 2015 refusing a review hearing in relation to the Plaintiff's parole and refusing the Plaintiff's parole be quashed and that the proceedings be remitted to the Authority to be dealt with in accordance with law. 6. The grounds of appeal were these: 1. The first defendant fell into jurisdictional error in failing to consider whether the release of the plaintiff was appropriate in the public interest as required by s 135(1) and (2) of the Crimes (Administration of Sentences) Act 1999. 2. In the alternative to ground 1, there is an error of law on the face of the record in that the first defendant failed to consider whether the release of the plaintiff was appropriate in the public interest as required by s 135(1) and (2) of the Crimes (Administration of Sentences) Act 1999. 3. The first defendant fell into jurisdictional error in failing to have regard to a relevant consideration which it was required to take into account pursuant to s 135(2) (b) and/or (k) of the Crimes (Administration of Sentences) Act 1999. 4. In the alternative to ground 3, there is an error of law on the face of the record in that the first defendant failed to have regard to a relevant consideration which it was required to take into account pursuant to s 135(2) (b) and/or (k) of the Crimes (Administration of Sentences) Act 1999. 1. It should be noted that the Plaintiff's present solicitors only commenced to act for him shortly before the Amended Summons was filed by them. 2. The First Defendant has filed a submitting appearance. The Second Defendant is the contradictor in the proceedings. 3. Two affidavits were filed in support of the Amended Summons. The first was an affidavit of the Plaintiff's new solicitor. Significantly, that affidavit annexed the Notice of 27 November 2015 of the determination of the Authority in respect of the decision to refuse parole. 4. The second affidavit was one by the Plaintiff himself. That affidavit annexed a document also entitled "Affidavit" dated 20 October 2015. The document was headed with the name of this Court and underneath this appeared: Matter: Judicial review of State Parole Authority Decision File Number: 2014/311 219 I, Simon Monteiro, of New South Wales, Date of Birth 29 December 1966, sincerely and truly declare and affirm: 1. I am the applicant in this judicial administrative review of the State Parole Authority decision not to grant me parole. 1. At some time between the time the Plaintiff's present solicitors saw that affidavit and compared it to the Notice of 27 November from the Parole Authority they formed the view that there was a strong likelihood that when the Parole Authority made its decision of 27 November 2015 it did not have a copy of the affidavit. How they reached that view was not satisfactorily explained. However, it led to the preparation of a Further Amended Summons that was forwarded to the Crown Solicitor, acting for the Second Defendant with a view to the Crown Solicitor agreeing to consent orders that permitted the filing of the Further Amended Summons. It was filed by consent on 16 June 2016. 2. The only amendment to the Summons was the addition of ground 5 which read: The First Defendant fell into jurisdictional error in failing to have regard to the Plaintiff's affidavit dated 20 October 2015. 1. On 22 June 2016 the Second Defendant advised that they consented to the relief sought in the Further Amended Summons with the exception of an order for costs. The letter consenting to the relief said that the Second Defendant would be seeking that there be no order for costs, In circumstances where I am of the view that the successful ground was added by a late amendment and the Second Defendant has promptly conceded on that ground. 1. The matter was listed for hearing on 28 June 2016. The parties agreed to Consent Orders which were orders in the nature of certiorari and mandamus as the Further Amended Summons sought. The Plaintiff, however, seeks costs in relation to the present solicitors' work together with counsel's fees. Those costs are the costs incurred since shortly before the Amended Summons was filed on 2 June 2016. The amount of the costs is $33,504 including GST. 2. Both sides sought to gain assistance from what was said by McHugh J in Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622. The Plaintiff submitted that he had been entirely successful in that the consent orders to be made were the orders sought from the time of the Amended Summons. 3. The Defendant submitted that it was not appropriate for the Court to try a hypothetical action between the parties. In the ordinary case where proceedings are settled the Defendant submitted that there should be no order as to costs to the intent that each party should pay its own costs. The Defendant submitted that it had at all times acted reasonably in the proceedings. When the Summons was amended on 2 June 2016 the whole basis of the case had been changed with the result that the Defendant had incurred unnecessary costs. However, no order was sought as a condition of the Plaintiff being permitted to amend. Further, within six days of the Further Amended Summons being filed the Second Defendant had consented to the relief sought. 4. The Defendant also relied on the approach taken by R A Hulme J in Casella v Director of Public Prosecutions (NSW) [2016] NSWSC 204. 5. In Ex Parte Lai Qin McHugh J said (at 624-625): In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. Consideration 1. In my opinion, both parties have acted reasonably in the conduct of this litigation. That is certainly the case so far as the Plaintiff is concerned since his present solicitors commenced to act. The Summons originally filed seems to me to have been misconceived, at least so far as it confined the challenged decision to the determination in August 2015. It may be the case that it was necessary for relief to be sought in relation to that earlier decision because if the determination of 27 November 2015 was quashed the August 2015 decision would remain. This has some analogy with provisions in such legislation as the Workplace Injury Management and Workers Compensation Act 1998 (NSW) where there may be a need to quash not only the decision of an appeal panel under s 328 of the Act but also the gateway to the decision of the Registrar under s 327 which enables the review by the appeal panel. However, this matter was not argued and a determination on it should await an appropriate case. 2. In any event, the Plaintiff's present solicitors acted expeditiously and reasonably in getting the proceedings into order, first, by the filing of the Amended Summons on 2 June 2016 and subsequently by the filing of the Further Amended Summons when it became apparent that the Parole Authority had not taken into account the October 2015 affidavit. Further, in my opinion, there can be no question that the Second Defendant has behaved entirely reasonably in its approach to the proceedings at the time of the amendment of the Summons on 2 June (by not seeking costs thrown away by the amendment), and by its consent to the Further Amended Summons with its subsequent speedy concession which settled the proceedings. 3. Prima facie, the ordinary rule articulated in Ex Parte Lai Qin should apply, that is, that there should be no order as to costs. 4. However, I consider that it can be confidently concluded that the Plaintiff was almost certain to have succeeded in relation to ground 5 added by the Further Amended Summons. The speedy agreement to the relief sought by the Second Defendant and the terms of its letter make that clear. 5. Mr Hume of counsel for the Second Defendant submitted, however, that it was by no means certain that the Plaintiff would have succeeded on that ground. In that regard he drew attention to the affidavit of 20 October 2015 of the Plaintiff and to the fact that the file number quoted at the top of that affidavit was in fact the file number for other proceedings that the Plaintiff had in this Court concerning his prison conditions. Moreover, the Plaintiff had made an application under s 137B of the Administration of Sentences Act concerning an application for parole based on manifest injustice. Part of what was contained in the affidavit referred to the decision to refuse parole amounting to a manifest injustice. Mr Hume submitted that it was not clear, therefore, that the Parole Authority should have understood that the affidavit of 20 October 2015 was submitted for consideration in its determination leading to its decision under s 141. 6. It may be accepted that there is some ambiguity concerning the affidavit of 20 October 2015. The file number did not concern judicial review proceedings nor parole. Moreover, despite the statement in paragraph 1 of the affidavit and the heading on the affidavit there were no proceedings on foot for judicial review in relation to parole. 7. Nevertheless, the reference to decisions of the Parole Authority and to judicial review in connection therewith were sufficient to require the Authority to have at least had regard to the affidavit. In any event, even a cursory read of paragraph 2 of the affidavit clearly showed that it related to the behaviour of the Plaintiff in prison which would be a relevant consideration for the Authority when considering parole. Further, the affidavit made express reference to the decision of 7 August 2015 to refuse parole. 8. In my opinion, the Plaintiff was almost certain to have succeeded on ground 5. That is sufficient to justify an order for costs in the Plaintiff's favour relevant to that ground. 9. On the other hand, without conducting a hypothetical hearing it is not possible to say anything about the Plaintiff's prospect of success on grounds 1 to 4. When it is clear that the Second Defendant agreed to the Plaintiff's relief because of ground 5 only, no inference can be drawn that the Plaintiff's case on grounds 1 to 4 was a strong one or that the Second Defendant saw it that way. 10. In my opinion, the Plaintiff should be entitled to his costs relevant to ground 5 only. 11. During the course of argument I raised with the parties the question, if a costs order was to be made, whether it would be appropriate to make a specified gross sum order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The Defendant agreed that it would be appropriate. The Plaintiff submitted that if a costs order was made the amount of the costs should, in the ordinary course either be agreed between the parties or go to assessment. 12. In Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Giles JA said of the earlier equivalent provision to s 98(4) (Pt 52A r 6(2) Supreme Court Rules 1970 (NSW)): [21] The power conferred by r 6(2) is not confined, and may be exercised whenever the circumstances warrant its exercise. It may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment (Leary v Leary (1987) 1 WLR 72; Sparnon v Apand Pty Ltd (von Doussa J, 4 March 1998, unreported); Beach Petroleum NL v Johnson (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628). [22] Of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs. As was said in Beach Petroleum NL v Johnson at 124, the gross sum "can only be fixed broadly having regard to the information before the Court"; in Hadid v Lenfest Communications Inc at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates". The approach taken to estimate costs must be logical, fair and reasonable (Beach Petroleum NL v Johnson at 123; Hadid v Lenfest Communications Inc at [27]). The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA). 1. In Hamod v State of New South Wales and Anor [2011] NSWCA 375 Beazley JA (with whom Giles and Whealy JJA agreed) said: [813] I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]: "The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." [814] See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date, " Civil Procedure Act ", at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd [[2007] NSWSC 23]; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J. … [820] The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary ; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd [[1999] FCA 673; (1999) 93 FCR 1 at [15]] (emphasis added) 1. Although some of the authorities including Hamod and Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 have noted that the gross sum costs procedure was particularly useful in complex cases, other authorities have made it clear that the old Rule (now s 98(4)(c)) is expressed in general terms and is not limited to cases of that type: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811 at [8] and Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 at [6]. 2. The present is clearly not a case where the party required to pay costs would not be able to meet a liability of the order likely to result from an assessment. However, given the relatively small amount of costs involved, I consider that the assessment of costs would be protracted and expensive: see s 60 Civil Procedure Act 1995 (NSW). Accordingly, I consider that it is appropriate I should make a lump sum costs order. 3. The Plaintiff submitted that all five grounds were related in the sense that it was only by the solicitors going through the processes to obtain transparency which related specifically to grounds 1 to 4 that the failure to take account of the October 2015 affidavit became apparent. In that way, all of the costs incurred since the time of the Amended Summons of 2 June 2016 should be recoverable. 4. The speed with which this matter has progressed since a little before the filing of the Amended Summons on 2 June 2016 points strongly to the fact that there would be a relatively minor difference between the costs incurred for the matters necessary to prove ground 5 and the matters necessary to prove grounds 1 to 4. Much of the surrounding circumstances of the decisions of August and November 2015 and the documentation would have needed to go into evidence in any event. I accept that there would be some reduction in the amount of the solicitor's costs but the greatest impact is likely to be on counsel's time for preparation. 5. The hearing allocation fee of $2,104 would need to have been paid. Counsel would be entitled to a one day hearing fee whether to argue ground 5 or simply to argue the case for costs where the Plaintiff has largely been successful. The majority of the solicitor's costs would have been incurred even if ground 5 alone would have been relied upon because of the need to prepare affidavits annexing all of the material relevant to the making of the decisions. 6. Allowing for the discount referred to in Hamod and the cases there referred to, I consider that the Plaintiff should be awarded a lump sum costs order of $23,000. 7. Accordingly, the orders I make are these: 1. An order in the nature of certiorari quashing the decision of the First Defendant on 27 November 2015 not to reconsider its initial decision to refuse parole to the Plaintiff. 2. An order in the nature of mandamus remitting for determination in accordance with law the decision pursuant to s 141 Crimes (Administration of Sentences) Act 1999 (NSW) as soon as reasonably practicable. 3. The Second Defendant is to pay the Plaintiff's costs in the sum of $23,000. 4. No order as to the costs of the First Defendant. ********** 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: 01 July 2016