Supreme Court New South Wales Medium Neutral Citation: Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police (No 3) [2020] NSWSC 403 Hearing dates: On the papers Date of orders: 16 April 2020 Decision date: 16 April 2020 Jurisdiction: Common Law Before: Bellew J Decision: 1. The plaintiff Ali Abbas is to pay 90% of the costs of the defendant's costs of the proceedings, as agreed or assessed. Catchwords: COSTS – Discretion to award costs – Where plaintiff largely unsuccessful in proceedings – Exercise of discretion in case of "mixed" result Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police [2019] NSWSC 1841 Dodds Family Investments Pty Limited v Lane Industries Pty Limited [1993] FCA 259 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Category: Principal judgment Parties: Ali Abbas – Plaintiff NSW Commissioner of Police – Defendant Representation: Counsel: M Ayache (Solicitor) – Plaintiff (Abbas) M Hutchings - Defendant Solicitors: M Ayache – Plaintiff (Abbas) Makinson d'Apice Lawyers – Defendant File Number(s): 2018/376397 Publication restriction: Nil Judgment 1. I delivered judgment in these proceedings on 20 December 2019. [1] The background to the proceedings is set out in that judgment. [2] In short, Ali Abbas (the plaintiff) brought proceedings against the NSW Commissioner of Police (the Commissioner) claiming privilege over a number of documents which had been seized by police in the course of an investigation which culminated in his arrest. In respect of all but eight individual documents, those claims were rejected and the proceedings were dismissed. To the extent that my previous judgment dealt with the joinder, as a plaintiff in the proceedings, of Bassam Hamzy (Hamzy), it should be noted that although joined, he played no active part. 2. At the time of delivering judgment I made orders reserving the question of costs. In the absence of any indication of an agreement having been reached between the parties, I have now received written submissions from both the Commissioner and the plaintiff and am in a position to deliver judgment in relation to the issue of costs. 3. As I have noted, the proceedings brought by the plaintiff were largely (indeed, almost entirely) unsuccessful. The plaintiff claimed privilege over a total of some 118 documents. Those claims were dismissed in respect of 110 of those documents. In these circumstances, the Commissioner has sought an order that the plaintiff pay his costs of the proceedings. The Commissioner does not seek any order against Hamzy. 4. Counsel for the Commissioner accepted that as a general rule, an unsuccessful party should be ordered to pay the costs of a successful party or in other words, that costs should follow the event. However, he submitted by reference to a number of authorities that such a rule was subject to exceptions, and that the Court retained a wide discretion when the outcome of the proceedings could properly be described as "mixed". Counsel submitted that even if it could be said that the plaintiff succeeded to some degree in the present proceedings, that level of success was inconsequential and was "dwarfed" when the breadth of the proceedings was considered. 5. It was submitted that in these circumstances, the general rule should be displaced and an order made that the plaintiff pay the Commissioner's costs of the proceedings. In the alternative, Counsel submitted that an order should be made which precluded the plaintiff from being entitled to recover his costs. 6. The plaintiff submitted that each party should bear its own costs of the proceedings. It was submitted that the appropriate way in which to view the exercise of the discretion was to separate the proceedings into two parts, namely: 1. the costs incurred by the parties up to the time at which I determined the protocol to be put in place for the purposes of identifying the documents over which privilege was claimed; and 2. the costs incurred thereafter, up to the date of judgment. 1. It was submitted that the plaintiff was in the position of "an ordinary litigant" who had taken steps to protect the privilege of other persons (namely his former clients) in relation to an issue of public importance. It was submitted that the nature and significance of the matters in issue justified special orders in relation to costs, notwithstanding the ultimate outcome of the proceedings. 2. It was further submitted that the costs leading up to the time of determining the protocol were a necessary consequence of the plaintiff ensuring that claims for privilege were not compromised, and that this involved him acting responsibly towards his former clients in an effort to preserve "a privilege of public importance". As to the balance of the proceedings, it was submitted that although the plaintiff was not wholly successful in his claims, he had enjoyed "some success". It was submitted that in these circumstances the Court should approach the exercise of discretion as a matter of general impression and evaluation. It was also emphasised that the claims made by the plaintiff were prosecuted efficiently. 3. Section 98(1) of the Civil Procedure Act 2005 (NSW) is in the following terms: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act-- (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. … 1. The discretion to award costs is wide [3] and extends to displacing the general rule that costs follow the event if the circumstances warrant it. However, it remains the case that as a general proposition, a successful party should not be deprived of costs unless there is material to justify a contrary order being made. [4] 2. In my view, it is somewhat artificial to separate the proceedings as the plaintiff seeks to do. The simple fact is that the Court's determination of the appropriate protocol was a necessary step which was taken in order to advance the determination of the proceedings which the plaintiff had commenced. Whilst I do not suggest that the plaintiff was obstructive in any way in the determination of that protocol, the fact of the matter is that Counsel retained on his behalf made various submissions to the Court in relation to its terms which were ultimately rejected. Further, although the outcome of the proceedings might be regarded as mixed in a strict sense, the fact remains that the vast majority of claims for privilege brought by the plaintiff were unsuccessful. 3. I am unable to accept the submission that the proceedings were brought by the plaintiff in the public interest. Their very nature runs contrary to that proposition. However, I do accept the submission that in a case such as this where the party bringing the proceedings has enjoyed some limited success, the exercise of the discretion is largely a matter of impression and evaluation. [5] 4. Given all of those circumstances, I have come to the view that the proper exercise of the discretion should result in an order being made in favour of the Commissioner, but in terms which recognise that the plaintiff enjoyed some limited success in the proceedings. 5. For those reasons I make the following order: 1. The plaintiff Ali Abbas is to pay 90% of the defendant's costs of the proceedings, as agreed or assessed. ********* Endnotes 1. See Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police [2019] NSWSC 1841. 2. At [1]-[8]. 3. See generally Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [21]. 4. Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460 at 477. 5. Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22; Dodds Family Investments Pty Limited v Lane Industries Pty Limited [1993] FCA 259. 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: 16 April 2020