Supreme Court New South Wales Medium Neutral Citation: Ritson v Commissioner of Police, New South Wales Police Force [2018] NSWSC 1999 Hearing dates: 31 August 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Applicant's Notice of Motion filed 16 July 2018 is dismissed. (2) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005, order that the applicant pay the respondent's costs of the proceedings as a gross sum of $6,000. Catchwords: CIVIL PROCEDURE — application seeking that a costs order be set aside on basis of a denial of procedural fairness or irregularity — where applicant was unsuccessful in the substantive proceedings and the usual order as to costs was made — Uniform Civil Procedure Rules 2005, r 36.15 — extensive delay of five years between entry of costs order and application — no denial of procedural fairness — no relevant public interest in the substantive proceedings — application dismissed COSTS — specified gross sum costs order and indemnity costs sought by respondent — where cost and delay of assessment would not be warranted — reasonable amount sought — indemnity costs not appropriate — gross sum costs order made Legislation Cited: Civil Procedure Act 2005 Crown Proceedings Act 1988 Interpretation Act 1987 Police Act 1990 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Commonwealth v Sex Discrimination Commissioner & Ors [1998] FCA 1607; (1998) 90 FCR 179 CSR Ltd v Eddy (2005) 226 CLR 1 Friends Of Hinchinbrook Society Inc v Minister For Environment & Ors [1998] FCA 432; (1998) 84 FCR 186 G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23 Kerr v Commissioner of Police (1977) 2 NSWLR 721 Lollis v Loulatzis (No 2) [2008] VSC 35 Keddie v Foxall [1955] VLR 320 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Perera v Genworth Financial Mortgage Insurance Pty Ltd (No.2) [2018] NSWSC 1577 Perpetual Trustee Australia v Heperu Pty Ltd (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 Pollock v Hicks [2015] NSWCA 122 Re Kerry (No 2) [2012] NSWCA 194 Ritson v Commissioner of Police [2013] NSWSC 1396 Ritson v Commissioner of Police, New South Wales Police Force [2017] FCCA 1204 Ritson v Commissioner of Police, New South Wales Police Force [2017] FCA 1192 Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916 Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2018] FCCA 1941 Tomasevic v Travaglini & Anor [2007] VSC 337 Vaughan v Byron Shire Council [2012] NSWSC 75 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Zakaria v Dr Noyce [2012] NSWSC 981 Category: Costs Parties: Brendan Ritson (Applicant) Commissioner of Police (Respondent) Representation: Counsel: In person (Applicant) P Afshar (Respondent) Solicitors: In person (Applicant) Coleman Greig Lawyers (Respondent) File Number(s): 2012/337024 Judgment Background 1. The applicant, Mr Brendan Ritson, is a former police officer who served in the New South Wales Police Force ("NSW Police") for almost 10 years. He was discharged in March 2011 as a result of recognised work-related injuries. 2. In October 2012, the applicant complained to an Inspector within the NSW Police that a person residing in Victoria had made knowingly false accusations against him and asked that there be an investigation into those accusations. That request was declined. 3. The applicant then commenced proceedings in the Supreme Court by Summons seeking an order in the nature of mandamus pursuant to s 65 of the Supreme Court Act 1970 requiring the Commissioner of the New South Wales Police ("the Commissioner") to investigate his complaint. The hearing of that Summons before me occurred on 23 April 2013. 4. On 27 September 2013, I dismissed Mr Ritson's Summons on the basis that I found that there was no enforceable duty to investigate a complaint such as that made by him: see Ritson v Commissioner of Police [2013] NSWSC 1396 at [75]. Additionally, I held that even if there was such a duty, the discretion to grant relief should not be exercised: Ritson at [89]-[90]. For those reasons, I made an order dismissing the Summons. I also made an order requiring Mr Ritson, as the unsuccessful party, to pay the Commissioner's costs of that Summons ("the Costs Order"). 5. It is convenient to refer to that judgment as the 2013 Judgment. Notice of Motion 1. A little under five years later, on 16 July 2018, the applicant filed a Notice of Motion seeking the following orders: "1. The order of Justice Garling made on 27 September 2013 that the plaintiff to pay the defendant's costs is set aside ex debito justitiae (as of right) for denial of natural justice, pursuant to the inherent jurisdiction of the Supreme Court. 2. Alternatively, the order of Justice Garling made on 27 September 2013 that the plaintiff to pay the defendant's costs is set aside for irregularity, pursuant to rule 36.15(1) of the Uniform Civil Procedure Rules 2005. 3. The parties to be heard on the question of costs of the substantive proceedings 4. The defendant to pay the plaintiff's costs of this motion. 5. Further or other orders the Court deems appropriate." 1. This judgment accordingly deals with the applicant's Notice of Motion seeking to have the Costs Order set aside. 2. For the reasons that will follow, the applicant's Motion ought be dismissed. The Issue of Costs in the 2013 Proceedings 1. It is necessary to set out the manner in which the applicant and the Commissioner dealt with the issue of any costs order in their submissions and at the hearing in 2013. 2. On 16 April 2013, the applicant filed and served written submissions, which addressed the substantive relief sought in his Summons but did not address the question of costs, although he had claimed an order for costs in his Summons. 3. On 22 April 2013, the day before the hearing on 23 April 2013, the applicant filed and served an additional short document entitled "Plaintiff's Supplementary Submissions". He handed this document up in Court at the hearing. 4. That document addressed costs in one line at paragraph 20. That paragraph read: "Costs 20. The Plaintiff wishes to be heard separately on the question of costs." 1. At the hearing, neither party addressed the question of costs in their oral submissions. After judgment was reserved, neither the applicant nor the Commissioner made any application to provide separate submissions to the Court about the question of costs, either orally or in writing. In particular, no party sought to identify any feature about the proceedings which suggested they were out of the ordinary. 2. In the 2013 Judgment, which was subsequently delivered on 27 September 2013, I said on the issue of who should pay the costs of the proceedings, this: "93. Ordinarily, costs would follow the event: see r 42.1 of the Uniform Civil Procedure Rules 2005. However, this usual practice is subject to any order of the Court. 94. In this case, the relevant police officers wrote letters which, as I have found, made no sense. It is unsurprising that Mr Ritson was dissatisfied with the reasons he was being given for the decision of the police officers not to investigate his complaint. 95. However, I have found that there was no legal obligation falling on the defendant to investigate Mr Ritson's complaint, and it is for that reason that Mr Ritson's claim has failed. 96. Accordingly, costs ought follow this event." Events between 2013 and 2018 1. The applicant, in his affidavit, which was not challenged, recounted the following relevant events after the 2013 Judgment was handed down. 2. On 8 October 2013, the applicant emailed a letter to Ms Vanessa Andersen, the solicitor for the Commissioner. He noted the Costs Order and contended that in light of his Supplementary Submissions in the hearing asking to be heard separately on costs, this order was not made "in accordance with the notions of procedural fairness/natural justice". He then wrote: "Please confirm whether or not your client intends to enforce the costs order. If your client intends to enforce the Costs Order, I will seek leave to appeal that order in the Court of Appeal." 1. On 15 October 2013, the applicant received a response from Ms Andersen. She informed him that the Commissioner was not obligated to respond to his letter, and would not respond. 2. The applicant's position, as stated in his affidavit, is that he took the view that that response meant that the Commissioner would not be seeking to enforce the Costs Order. He submits that he took this view because: "…it was liable to be set aside for the reasons set out in the letter [of 8 October 2013] and that the [Commissioner] would have simply confirmed if there was in fact an intention to enforce the Costs Order." 1. He attributes his failure to appeal the 2013 Judgment or have the Costs Order otherwise set aside to this assumption. 2. In 2015, the Commissioner applied for an assessment of the Costs Order. The applicant did not participate in the costs assessment which ensued. The Commissioner served the applicant with a copy of the costs certificates which were issued, which amounted to a total of $43,966.76. 3. The Commissioner then filed the costs certificates in the Local Court, and on 30 October 2015 obtained a judgment from the Local Court, which is the basis for the applicant's liability for costs. 4. As the applicant failed to comply with the Local Court's judgment, on 7 December 2016 the Commissioner issued a bankruptcy notice, which was served on the applicant on 22 March 2017. 5. The applicant subsequently applied to the Federal Circuit Court to have the bankruptcy notice set aside. This application was dismissed on 6 June 2017, with an order for costs: Ritson v Commissioner of Police, New South Wales Police Force [2017] FCCA 1204. 6. A subsequent appeal to the Federal Court was allowed with costs on 5 October 2017, and the matter was remitted back to a differently constituted Federal Circuit Court: Ritson v Commissioner of Police, New South Wales Police Force [2017] FCA 1192. Upon the remittal of the matter, on 20 April 2018 another judge of the Federal Circuit Court dismissed the applicant's application to set aside the bankruptcy notice: Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916. On 26 July 2018, the applicant was ordered to pay the Commissioner's costs on a lump sum basis: Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2018] FCCA 1941. 7. The applicant again appealed to the Federal Court. The time for compliance with the bankruptcy notice was extended to 17 August 2018 by an order of that Court on 29 June 2018. 8. The appeal against the April 2018 orders of the Federal Circuit Court was to be heard and determined on 17 August 2018. There was no material before this Court at the time of the hearing as to the outcome of that appeal. Relevant Statutory Provision 1. It is appropriate to set out r 36.15 of the Uniform Civil Procedure Rules 2005 ("UCPR"), upon which the applicant relies as one of the possible bases for the Court to set aside the Costs Order. It is in the following form: "36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent." Applicant's Submissions 1. The applicant submitted that he was not given the opportunity to make submissions on costs before the Costs Order was made, and was therefore denied natural justice. It was his submission that this denial of natural justice would constitute a fundamental irregularity, entitling him to have the Costs Order set aside, either in the Court's inherent jurisdiction, or pursuant to the power contained in r 36.15 of the UCPR, as a matter of "unconditional right": Zakaria v Dr Noyce [2012] NSWSC 981 at [25] (Davies J), citing Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571. 2. He submitted further that he had a "reasonable expectation" that the question of costs would be dealt with after the completion of the litigation and after a decision was given, stating: "There was no indication whatsoever that the question of costs was to be addressed in some other way, such as during the hearing and before a decision [was] given." 1. He identified several cases where costs orders had been set aside because one or both of the parties had not been given an opportunity to be heard on the question of costs before a costs order was made, including one decision of this Court: Vaughan v Byron Shire Council [2012] NSWSC 75 at [34]-[35] (Fullerton J). 2. He also pointed to what he said was an obligation on behalf of the Court to him as an unrepresented litigant to ensure that he understood the Court's practice and procedure, citing Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [311] (Beazley JA, as her Honour then was, Giles and Whealy JJ agreeing) and Tomasevic v Travaglini & Anor [2007] VSC 337 at [146] and [148] (Bell J), endorsed in Pollock v Hicks [2015] NSWCA 122 at [91] (Gleeson JA). He listed some steps he considered would have been appropriate, including asking him whether he wished to be heard on the question of costs. 3. Further, he submitted that the Commissioner had a duty as a model litigant to provide assistance to the Court, including by ensuring that he was made aware that any submissions on costs should be made during the substantive hearing. He argued that the Commissioner's failure to discharge its obligations to assist the Court is conduct that disentitles it to the beneficial exercise of the discretion for an order for costs. 4. At the hearing of this Motion on 31 August 2018, I invited the applicant to identify the substantive reasons he would advance as to why costs would not have followed the event in the original proceedings, as is the usual position under r 42.1 of the UCPR. The applicant then advanced two reasons why he said that the usual order as to costs ought not to have been made. 5. The first reason related to the question of the legal personality of the Commissioner, and may conveniently be referred to as the legal personality argument. The applicant's arguments on that submission in his written submissions may be summarised as follows: 1. The Costs Order was made in favour of the Commissioner of Police, rather than the individual who occupies that office; 2. An office, such as the Commissioner of Police, is not a person at law and is thus not capable of receiving the benefit of a costs order; 3. The Commissioner was required to prove that he was a legal personality or juristic person – by reference to the definition of a "person" in s 21 of the Interpretation Act 1987 – in an application for a costs order, which did not occur; 4. By reference to the statutory framework provided by the Police Act 1990 and the Crown Proceedings Act 1988, the Commissioner would not have been able to so demonstrate that named position was a juristic person; and 5. The lack of legal personality of the Commissioner was a substantial irregularity which would justify the setting aside of the Costs Order. 1. The second reason advanced by the applicant for why the usual order as to costs would not have been made is what may be termed the public interest argument. In essence, the applicant submitted that a costs order ought not have been made, or ought to have been reduced on the bases of public policy or public interest grounds. The public interest ground he relied upon was that in his administrative law matter dealt with in the 2013 Judgment, he had raised allegations of misconduct and corruption against senior Police officers, and that his proceedings were therefore brought "for the benefit of all police officers." 2. He acknowledged that he brought proceedings "in part for personal reasons", but submitted that there was a public interest component in ensuring that whistle-blowers were not deterred from coming forward and commencing legal proceedings seeking to hold public authorities to account. 3. In his submissions in reply on 1 October 2018, the applicant also submitted that a costs order would not have been made in the Commissioner's favour as the Commissioner had not denied that it took technical points, required him to prove matters which it knew to be true, failed to make reasonable inquiries and failed to take steps to avoid the litigation. 4. Finally, the applicant submitted that, as a matter of discretion, his application would not be defeated by delay because he "promptly" put the Commissioner on notice in October 2013, but that the Commissioner "elected to disregard his 'duty' to have the costs order set right". In those circumstances, he submitted that his delay would not weigh against the exercise of the Court's discretion. Defendant's Submissions 1. The Commissioner submitted that the applicant's case was without merit. The following submissions were made. 2. First, the Commissioner submitted that the mere fact that the applicant wrote in his Supplementary Submissions that he wished to be heard separately on costs would not be determinative of whether he was denied procedural fairness, as alleged. 3. Secondly, the Commissioner noted that the applicant was present and participated fully at the hearing. It was submitted that although opportunities were available to make submissions on costs, an issue which had been fairly raised by the Commissioner in his written submissions, the applicant failed to avail himself of those opportunities. This was contrasted with certain authorities cited by the applicant, such as Cameron v Cole (see above at [28]), where notice of the hearing had not been served on a debtor and the hearing was nonetheless held. 4. Thirdly, it was submitted that the applicant's correspondence with Ms Andersen on 8 October 2013 was evidence of his knowledge of the opportunity that he had to move formally to seek to reverse the Costs Order, and demonstrates that at that time he "knew what his argument was going to be". 5. Fourthly, the Commissioner pointed to the applicant's extensive delay in bringing any issue with the Costs Order to the Court's attention for a number of years, and his failure to participate in a number of the procedural steps that were taken to enforce the judgment, commencing in 2015. 6. Fifthly, the Commissioner pointed to the inconsistency of the applicant's position in relation to the "legal personality" argument. It was noted that at the time of the 2013 proceedings, the applicant sued the Commissioner as the only defendant, and indeed argued that the Commissioner was a "person" against whom an order pursuant to s 65 of the Supreme Court Act could be made. It was submitted that the applicant's reversal of position could accordingly be described as "disingenuous". 7. Sixthly, the Commissioner also noted that the applicant had utilised the same legal personality or juristic person argument before Judge Smith in Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916, and had failed in that court. 8. Seventhly, it was submitted that the applicant's failure to indicate why the Court would have departed from the usual order as to costs "fatally undermines his application." 9. On the issue of the costs of this Motion, the Commissioner also submitted that, in light of the "hopeless" nature of the application, and the applicant's conduct in unnecessarily protracting the litigation without any proper basis, the applicant should be ordered to pay the Commissioner's costs of the proceedings on an indemnity basis: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. 10. The Commissioner also sought the costs of the application in a lump sum, pursuant to s 98(4) of the Civil Procedure Act 2005. The Commissioner submitted that the discretion to make such an order should be exercised for the purpose of "avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation": Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23 at [9]. Three submissions were made in respect of that application: 1. If a lump sum costs order was not made, there would likely be a protracted taxation process, contrary to the dictates of s 56 of the Civil Procedure Act. It was said that the applicant's conduct of these proceedings and other proceedings would support that submission; 2. The rates and discounts applied to the Commissioner's costs were submitted to be reasonable and in line with general rates at which solicitors' and counsel's fees are taxed; and 3. That in all the circumstances, a lump sum costs order would be fair. 1. It was noted that Judge Smith in the Federal Circuit Court had made such an order as a consequence of the applicant's conduct in that proceeding. Discernment 1. It is clear that the Court has a broad discretion in relation to costs: Civil Procedure Act, s 98. As costs usually follow the event, a successful party has a "reasonable expectation" of being awarded costs against the unsuccessful party: Oshlack at [67] and [134]. 2. I turn now to the principles which guide the Court in an application to set aside previous orders. An application for orders to set aside the Court's orders, and in particular orders made more than five years ago, must demonstrate not only that the orders were irregular, but that there is "sufficient cause" shown for the order to be set aside: see r 36.15(1) of the UCPR. This is consistent with the fundamental principle of finality in litigation: Perpetual Trustee Australia v Heperu Pty Ltd (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 at [32]-[33] (Allsop P, Campbell JA and Handley AJA). 3. This threshold of sufficient cause precludes exercise of the power to set aside an order for slight, or merely contentious, reasons: Zakaria at [20]-[22]; Coles v Burke (1987) 10 NSWLR 429 at 437C (Kirby P, Samuels and McHugh JJA agreeing). 4. However, a denial of procedural fairness can amount to a fundamental irregularity that will entitle a person aggrieved to set aside an order as a matter of unconditional right: Cameron v Cole. That right is part of the Court's inherent power and can fall within r 36.15: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262 at [85] (Spigelman CJ, Tobias and Campbell JJA agreeing). 5. It is first necessary to consider whether the applicant has demonstrated that he was denied procedural fairness because he did not have the opportunity of making submissions on the Costs Order. 6. The applicant had a number of opportunities to make submissions in opposition to an order for costs including the Costs Order. After not making any oral submissions on costs at the hearing in 2013, despite being present during that hearing, and although costs were substantively addressed in the Commissioner's written submissions, the Court's records show that the applicant was also present at the time of the 2013 Judgment being handed down. He did not make any submissions or application about costs at the time of the delivery of the judgment. 7. The applicant then had the opportunity to, after taking some time to "digest" the judgment and orders, make an application by Notice of Motion to the Court within 14 days of the delivery of the 2013 Judgment for the setting aside or variation of the Costs Order, pursuant to r 36.16(3A) of the UCPR. 8. Within that 14 day time period, the applicant wrote to the solicitor for the Commissioner in the terms set out at [16]. That correspondence demonstrates that the applicant already had an understanding of an available avenue to reverse the Costs Order by way of an appeal on the grounds raised in this Notice of Motion. 9. In the absence of a substantive response from the Commissioner to that letter, it was not in any way reasonable for the applicant to presume that the Commissioner would not seek to enforce the Costs Order. There was simply no basis to do so. 10. In any event, it would have become abundantly clear in 2015 that the Commissioner was indeed moving to enforce the Costs Order. Still, the applicant did not participate in any meaningful way to impugn that order or to have it set aside. He did not appeal the Costs Order before the costs were assessed, chose not to participate in the costs assessment process, and further took no steps before the judgment was entered against him in the Local Court, before the bankruptcy notice was issued against him, or before an application he brought to set aside the bankruptcy notice was heard or determined. 11. The applicant also relied upon a submission that the Commissioner was bound by the State of NSW's Model Litigant Policy (Premier's Memorandum M2016-03). It may be inferred that the applicant was of the view that the Commissioner, by not assisting him or the Court in drawing his attention to the opportunity to make submissions on costs, had breached that Policy. 12. The Model Litigant Policy sets out proper standards for the conduct of civil litigation in this state by government bodies. It is not, however, an instrument which confers a positive entitlement on a party in opposing litigation to relief from the Court in the event that the Policy is not complied with. In any event, I am also not satisfied from the submissions made by the applicant that there was any breach of that Policy, in circumstances where the Commissioner had made substantive submissions on costs in written submissions, and where both sides were given an opportunity to make any further submissions they wished to at the conclusion of the hearing. 13. Therefore, I am ultimately unsatisfied that the applicant has established that he was denied procedural fairness which constituted a fundamental irregularity, entitling him to have the Costs Order set aside. 14. Furthermore, I am wholly unpersuaded that any order other than the usual order as to costs would have been made if the applicant had made further submissions. 15. The onus lies on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10] (Brereton J). 16. There are a number of reasons why it would not have been appropriate to depart from the usual order as to costs in the 2013 proceedings. 17. First, the applicant was not successful on any substantial issue in the 2013 Judgment. The applicant did not directly allege that the Commissioner engaged in any disentitling conduct in his conduct of the proceedings, including incurring excessive costs: see Lollis v Loulatzis (No 2) [2008] VSC 35 at [29] (Kaye J); Keddie v Foxall [1955] VLR 320 at 323–4 (Lowe, Martin and O'Bryan JJA); G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263. This is a factor which would strongly militate in favour of exercising the discretion to award costs in favour of the Commissioner, as the successful party. 18. Further, and in relation to the "public interest" argument raised by the applicant, the fact that the proceedings involve some public interest aspect does not, of itself, warrant departure from the general rule that costs follow the event: Oshlack at [90] (McHugh J); Re Kerry (No 2) [2012] NSWCA 194 at [13], [15]; cf CSR Ltd v Eddy (2005) 226 CLR 1. 19. It must first be noted that, as the Full Federal Court said in Friends Of Hinchinbrook Society Inc v Minister For Environment & Ors [1998] FCA 432; (1998) 84 FCR 186, the majority decision of the High Court in Oshlack does not lay down some general rule for application in other cases in the making of costs orders. It merely affirms the broad discretion conferred upon a court in relation to making a costs order. 20. Additionally, it is clear that the applicant brought proceedings in order to bring to light, as I found in the 2013 Judgment at [17], "ongoing bad faith by members of the NSW Police Force located at the Kings Cross Local Area Command towards him", and in order to vindicate what he perceived to be an improperly motivated decision to decline to investigate his complaint. 21. The action could therefore fairly be described as being motivated solely by a desire for personal vindication. Despite the applicant's perception that he was shining a light on police corruption, it could not be said that the relief the applicant sought would have had any real consequences for people other than the applicant. However grand or idealistic his motives may have been, there was simply no feature at all of any public interest, or any aspect of the public interest falling for consideration in the 2013 Judgment. The applicant's argument fails on this issue. 22. The applicant's submissions in relation to the "legal personality" argument are equally unsound. 23. It is clear that only a natural person can be appointed to the office of the Commissioner by the Governor on the recommendation of the Minister: s 24(1) of the Police Act. Thus, although the "Commissioner of Police" is an office, a reference to the Commissioner is a reference to a natural person, namely, the person who is appointed to the office of Commissioner from time to time: see also s 19(1) of the Interpretation Act 1987. 24. The authorities also make it abundantly clear that the "Commissioner of Police", named as such, was the correct respondent to the Supreme Court proceedings, rather than the individual who held the office in 2013: Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157 at 169; Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724-725; Commonwealth v Sex Discrimination Commissioner & Ors [1998] FCA 1607; (1998) 90 FCR 179 at 191. An order made against the Commissioner would then bind the person who holds that position from time to time. 25. It is also an unappealing proposition that the applicant could avoid the consequences of a costs order made against him and in favour of the Commissioner when the Commissioner was the only defendant named by the applicant in the 2013 proceedings. It seems likely that if he had been successful in obtaining the relief he sought and a costs order in the 2013 Judgment, the applicant would have adopted a contrary position in seeking to enforce such an order. 26. A further and final aspect weighs heavily against the exercise of discretion to set aside the Costs Order, and that is the considerable delay of the applicant in seeking to re-open his litigation five years after the event by filing this Notice of Motion. Delay is a relevant matter where a party seeks to set aside an irregular judgment: R T Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168 at 170. 27. The mandatory considerations in ss 56 – 59 of the Civil Procedure Act guide the Court's exercise of discretion in this matter. In considering the dictates of justice in this case, pursuant to s 58(2)(b)(ii), it could not be said that the applicant has acted with any expedition whatsoever in filing this Notice of Motion. Nor could it be said that that lack of expedition is not attributable to circumstances beyond the applicant's control, pursuant to s 58(2)(b)(iii). 28. In all the circumstances, the Motion cannot succeed, and must be dismissed. Costs 1. The Commissioner sought an order for the costs of the Motion, payable on an indemnity basis, pursuant to s 98(1)(c) of the Civil Procedure Act, and in a gross sum, pursuant to s 98(4)(c) of that Act. 2. In an affidavit of the solicitor for the Commissioner, Ms Hegarty, dated 30 August 2018, it was estimated that the Commissioner's total estimated costs and expenses were approximately $8,650, excluding GST. This figure was calculated on an indemnity basis. With the allowance of a 10% discount, the Commissioner sought a lump sum indemnity costs order of $7,785. 3. The Commissioner submitted that an order for indemnity costs would be appropriate because: "23. In all the circumstances, this application was and remains hopeless. Given its nature and given it has unnecessarily protracted this litigation without any proper basis, [the applicant] ought to be ordered to pay [the Commissioner's] costs of this application on the indemnity basis: Oshlack at [69]." 1. The applicant resisted any order for gross sum costs, but did not separately address the issue of indemnity costs. He acknowledged that he had not participated in the costs assessment process in 2015 after the Costs Order was made. However, he expressed a desire to participate in a costs assessment in this matter in order to give him the opportunity to "closely scrutinise" any costs incurred by the Commissioner. 2. Although the applicant's Motion has failed, I am not persuaded on the basis of that brief submission by the Commissioner set out at [80] that the proceedings were hopeless, or an abuse of process of a kind that would render indemnity costs appropriate. Accordingly, an order for indemnity costs will not be made. 3. I am satisfied that the applicant should pay the Commissioner's costs of the Motion on an ordinary basis, and I am also satisfied that those costs should be payable as a gross sum. 4. I have considered the legal principles which apply to the discretion to make a gross sum costs order under s 98(4) of the Civil Procedure Act in some detail recently in Perera v Genworth Financial Mortgage Insurance Pty Ltd (No.2) [2018] NSWSC 1577 at [28]-[35]. 5. It is unnecessary to address those principles in any great detail here. In summary, such an order may be made where a contested costs assessment process is likely to be expensive or protracted, or 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: Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 at [21]-[22] (Giles JA); Hamod at [813]-[817] (Beazley JA, as her Honour then was, Giles and Whealy JJ agreeing). 6. There was no evidence put before the Court as to the applicant's inability to meet a costs sum as assessed. However, there are two key reasons why a gross sum costs order is appropriate in this case. 7. First, I am satisfied that the additional expense of an assessment of costs would be disproportionate and not warranted in light of the relatively small sum of the costs claimed, particularly in circumstances where the Court has sufficient material to make a gross sum costs order. 8. Secondly, the history of litigation between the parties is relevant to reaching a conclusion as to whether a costs assessment process may be expensive or protracted. Having regard to the history of the litigation between the applicant and the Commissioner over the course of the last five years, it is clear that there is a real risk that any assessment of costs is likely to be unnecessarily protracted and expensive, and will likely occupy a significant period of time. 9. This view is strengthened by the applicant's expressed desire to "closely scrutinise" the Commissioner's costs if a costs assessment were to occur. This approach does not inspire confidence that further unnecessary and disproportionate costs will not be incurred by a costs assessment. 10. A gross sum costs order would limit opportunities for any further dispute between the applicant and the Commissioner. This is consistent with the overriding purpose of s 56 of the Civil Procedure Act. 11. The approach taken to estimate the sum of the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 164-165; Hadid v Lenfest Communications Inc [2000] FCA 628 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: Beach Petroleum at 165; Hamod at [820]. 12. I consider that the gross sum costs order should be made in the sum of $6,000. That is, in my view, a fair and reasonable reduction from the Commissioner's already discounted sum sought ($7,785) to reflect that this costs order is being made on a party and party basis, rather than on an indemnity basis. Orders 1. I make the following orders: 1. Applicant's Notice of Motion filed 16 July 2018 is dismissed. 2. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005, order that the applicant pay the Commissioner's costs of the proceedings as a gross sum of $6,000. ********** 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: 21 December 2018