Steven James Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 14 August 2014
• Court: Supreme Court of ACT
• Docket Number: No. SC 354 of 2009
• Date: 14 August 2014

[2014] ACTSC 196

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 354 of 2009

Between:

Steven James Lewis

Plaintiff

and

Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory

First Defendant

and

Sentence Administration Board of the Australian Capital Territory

Second Defendant

Counsel for the Plaintiff: Mr J Purnell SC

Counsel for the Respondent: Mr P Garrisson SC, Solicitor-General for the ACT

Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237

John v Federal Commissioner for Taxation (1989) 166 CLR 417

Australian Competition and Consumer Commission v Australian Safeway Stores (No 2) [2003] FCAFC 163

Australia and New Zealand Banking Group Ltd v Manny (No 5) [2013] ACTSC 244

BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557

Calderbank v Calderbank [1976] Fam 93

Cretazzo v Lombardi (1975) 13 SASR 4

Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261

Elite Protective Personnel v Salmon (No 2) [2007] NSWCA 373

Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145

Hillman v Box (No 4) [2014] ACTSC 107

Hillman v Box (No 5) [2014] ACTSC 150

Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40–748

Jacka v Australian Capital Territory [2009] HCATrans 151

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Lewis v Chief Executive Department of Justice and Community Safety and Anor (2013) 280 FLR 118

Marrickville Council v Minister for Environment, Sport and Territories (1996) 45 ALD 39

Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81

Orrong Strategies Pty Ltd v Village Roadshow (No 2) [2007] VSC 205

Oshlack v Richmond River Council (1998) 193 CLR 72

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577

Quirk v Bawden (1992) 112 ACTR 1

Ruddock v Vadarlis (No 2) (2002) 115 FCR 229

Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213

Australian Constitution

Crimes (Sentence Administration) Act 2005 (ACT), ss 59, 69, 75, 79

Sentence Administration Act

Court Procedures Rules 2006 (ACT), rr 1705, 1721, 5405(1)(b), Div 2.17.5

Professor G E Dal Pont, Law of Costs (2 ^nd ed, 2009, LexisNexis Butterworths: Sydney)

PROCEDURE — Costs — Plaintiff's claim only partially successful — Costs are a judicial discretion — Costs will ordinarily follow the event — Exceptions to the rule that costs will ordinarily follow the event — Apportionment of costs — ‘Head count’ of issues in proceedings not appropriate — Usually desirable to apportion costs by fixing a percentage of the costs — Apportionment cannot be done with mathematical precision — Calderbank letter not relevant to the consideration of costs in this instance — Plaintiff should be awarded costs on the issues where he was successful — That the same decision will be made by the decision-maker does not render judicial review futile — Ordinary rule as to costs do not apply in this instance — Costs apportioned

ORDER

THE COURT ORDERS THAT:

• 1. The defendants pay thirty-five percent of the costs of Steven James Lewis on a party and party basis.

• 2. The date to which the period during which Steven James Lewis may appeal against the orders made on 1 October 2013 is extended under r 5405(1)(b) of the Court Procedures Rules 2006 (ACT) to 11 September 2014.

1 The plaintiff, Steven James Lewis, was, on 24 January 2008, sentenced for an offence of recklessly or intentionally inflicting actual bodily harm. The sentence was a term of imprisonment for twelve months and the court set the whole of the period of imprisonment to be served by periodic detention.

2 Mr Lewis failed to attend at the Periodic Detention Centre on a number of occasions and, on 8 July 2008, the Sentence Administration Board (the Board) cancelled his periodic detention. As a result, Mr Lewis was arrested and, on 5 January 2009, commenced serving the balance of the sentence of imprisonment calculated in accordance with s 79 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act).

3 Mr Lewis challenged the decision of the Sentence Administration Board and on 1 October 2013, I set the decision aside. See Lewis v Chief Executive Department of Justice and Community Safety and Anor (2013) 280 FLR 118.

4 In doing so, I invited the parties to make submissions as to any consequential orders that were required and also as to costs.

5 On 17 January 2014, I heard submissions from the parties and reserved my decision.

6 Both parties sought orders as to costs but, apart from an order under r 5405(1)(b) of the Court Procedures Rules 2006 (ACT), no other consequential orders were sought.

The proceedings

7 The proceedings were conducted effectively in two parts; the first part challenged the decision of the Board on administrative law grounds and the second part challenged the decision of the Board on constitutional law grounds.

8 There were a number of challenges to aspects of the decision-making process of the Board under the administrative law challenges. I upheld one of those grounds and dismissed the others.

9 I dismissed the challenge on the constitutional law grounds.

10 The two parts of the hearing were quite separate; they were conducted at separate times and, indeed, Mr Lewis was represented by different counsel for each of the two parts of the hearing.

11 Thus, whilst Mr Lewis was successful in having the decision of the Board set aside, a significantly large part of the challenge that he made was unsuccessful.

12 It is in this context that the decision as to costs must be made.

Principles as to costs

13 The awarding of costs in litigation is in broad terms an entirely discretionary matter. The discretion must, of course, be exercised judicially and the result should be fair, having regard to the particular facts and circumstances of the proceedings.

14 The width of the discretion and the need to reach a fair result also means that the Court has a significant degree of flexibility in reaching its decision and the way in which it is to be resolved and implemented.

15 These principles have been set out in the Court Procedures Rules where r 1721 provides

1721 Costs – general rule

• (1) The costs of a proceeding or of an application in a proceeding are in the discretion of the court.

• (2) The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.

16 Some options for flexibility have been set out in the Court Procedures Rules where r 1705 provides

1705 Costs – for issue or part of proceeding

• (1) The court may make an order for costs in relation to a particular issue in, or a particular part of, a proceeding.

• (2) For subrule (1), the court may declare what percentage of the costs of the proceeding is attributable to the issue or part of the proceeding to which the order relates.

17 Ordinarily, costs will follow the event, as McHugh J pointed out in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97; [67]. That order is, as his Honour said, ‘the usual order as to costs’. There are valid and appropriate reasons for that: the successful party has been required to seek the Court's assistance in order to achieve the outcome it has secured and so should be indemnified for the costs required to do so.

18 Exceptions to the rule, however, may be classified into various categories.

19 Thus, a successful party whose conduct extends the litigation unnecessarily or unreasonably may be deprived of its costs caused by such conduct.

20 The outcome of the proceedings may also be relevant, such as where, as described by McHugh J in Oshlack v Richmond River Council at 98; [70], ‘in reality, the successful party lost the litigation and the unsuccessful party won’. This may even result in the successful party being ordered to pay the costs of the unsuccessful party.

21 A less drastic form of such order may be appropriate where the proceedings were affected, such as by being lengthened or made more complex, through the successful party raising separate or additional issues on which issues it was not successful. This is the situation for which r 1705 of the Court Procedures Rules is designed.

22 The courts have also given due regard to the conservation of the resources available to litigants utilising the courts by encouraging them to resolve the dispute between themselves, thus encouraging the making of reasonable offers of compromise and penalising by various forms of costs orders the failure of the offerer to accept when it would have been reasonable to do so. See Calderbank v Calderbank [1976] Fam 93. I have made comment on some of the relevant principles about costs orders based on this approach in Hillman v Box (No 5) [2014] ACTSC 150.

Apportionment as to costs

23 In this case, whether the costs of separate issues or some appropriate method of apportionment in respect of them is, it was submitted by the defendants, necessary requires the court to consider such an apportionment approach.

24 In Australia and New Zealand Banking Group Ltd v Manny (No 5) [2013] ACTSC 244, I considered the question of whether and how such an apportionment should be made. It is clear that such considerations must be viewed from the perspective of a successful litigant and not approached with too clinical an attitude to the proceedings. Thus, it can be accepted that, particularly in cases of complexity, it is unlikely that one party will be successful on all the issues it raises. It is not the function of the Court to apply the detailed and mathematical approach that the community would expect the Australian Taxation Office to apply to the assessment of income tax...