State of New South Wales v Church (Costs) [2021] NSWSC 1407

State of New South Wales v Church (Costs) [2021] NSWSC 1407

The defendant was the ultimately successful party after the proceedings were dismissed and was prima facie entitled to his costs under r 42.1, including the costs of the preliminary hearing under r 42.7. The plaintiff did not establish a proper basis to depart from that general rule: s 22 of the Terrorism (High Risk Offenders) Act 2017 (NSW) conferred a discretion rather than an obligation to bring the proceedings; the public interest and good faith character of the proceedings did not itself justify a different costs order; the defendant's legal aid status was irrelevant under s 42 of the Legal Aid Commission Act 1979 (NSW); the defendant's refusal to participate in the initial...

Jurisdiction
Australia
Judgment Date
02 November 2021
Procedural Posture
Costs Application in Proceedings Under the Terrorism (high Risk Offenders) Act 2017 (nsw) / Amended Notice of Motion After Dismissal of the Proceedings at Final Hearing
Outcome
Motion allowed; the plaintiff was ordered to pay the defendant's costs of the proceedings, including the costs of the preliminary hearing, as agreed or assessed.
Legal Topics
['costs Follow the Event' 'interlocutory Application Costs' 'proceedings Under the Terrorism (high Risk Offenders) Act 2017 (nsw)' 'legal Aid and Costs' 'public Interest Litigation']
['costs' 'civil Procedure' 'high Risk Offenders'] ['costs Follow the Event' 'interlocutory Application Costs' 'proceedings Under the Terrorism (high Risk Offenders) Act 2017 (nsw)' 'legal Aid and Costs' 'public Interest Litigation']

Case Brief

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Procedural Posture

Costs Application in Proceedings Under the Terrorism (high Risk Offenders) Act 2017 (nsw) / Amended Notice of Motion After Dismissal of the Proceedings at Final Hearing

Legal Issues

  1. 1 ['Whether the defendant, as the successful party after the final dismissal of proceedings, should receive his costs of the proceedings.' 'Whether the costs order should include the costs of the preliminary hearing at which an interim supervision order was made.' 'Whether the plaintiff established a proper basis to depart from the general rule that costs follow the event.' "Whether the defendant's non-participation in the initial risk assessment should disentitle him to costs of the preliminary hearing."]

Ratio Decidendi

The defendant was the ultimately successful party after the proceedings were dismissed and was prima facie entitled to his costs under r 42.1, including the costs of the preliminary hearing under r 42.7. The plaintiff did not establish a proper basis to depart from that general rule: s 22 of the Terrorism (High Risk Offenders) Act 2017 (NSW) conferred a discretion rather than an obligation to bring the proceedings; the public interest and good faith character of the proceedings did not itself justify a different costs order; the defendant's legal aid status was irrelevant under s 42 of the Legal Aid Commission Act 1979 (NSW); the defendant's refusal to participate in the initial...

Court Disposition

Motion allowed; the plaintiff was ordered to pay the defendant's costs of the proceedings, including the costs of the preliminary hearing, as agreed or assessed.

Orders

  • ["The plaintiff is to pay the defendant's costs of the proceedings, including the costs of the preliminary hearing, as agreed or assessed."]