Cunneen v Independent Commission Against Corruption [2015] NSWCA 46

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cunneen v Independent Commission Against Corruption [2015] NSWCA 46 Hearing dates: On the papers Date of orders: 13 March 2015 Decision date: 13 March 2015 Before: Bathurst CJ at [1]; Basten JA at [2]; Ward JA at [3] Decision: Order that the Commission pay: (a)The plaintiffs' costs of the proceedings in the Common Law Division, and (b)The appellants' costs in this Court, including the costs of this application. Catchwords: COSTS – general rule that costs follow the event – whether there should be departure from general rule Legislation Cited: Independent Commission Against Corruption Act 1988 (NSW) Cases Cited: Baker v Towle [2008] NSWCA 73 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cuneen v Independent Commission Against Corruption [2014] NSWCA 421 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Independent Commission Against Corruption v Cripps (Supreme Court, (NSW), Sully J, 1996, unrep) Category: Costs Parties: Margaret Cunneen (First Appellant) Stephen Wyllie (Second Appellant) Sophia Tilley (Third Appellant)

Independent Commission Against Corruption (Respondent) Representation: Counsel: A Moses SC with T Howard SC and R Gall (Appellants) J Kirk SC with S Robertson (Respondent)

Solicitors: Cockburn and Co (Appellants) Crown Solicitor's Office (Respondent) File Number(s): CA 2014/00332831 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2014] NSWSC 1571 Date of Decision: 10 November 2014 Before: Hoeben CJ at CL File Number(s): SC 2014/00324898

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. BATHURST CJ: I agree with Ward JA. 2. BASTEN JA: I agree with Ward JA. 3. WARD JA: On 5 December 2014, this Court made orders granting leave to appeal from, and setting aside, orders made in the Common Law Division on 10 November 2014. Those orders were made in proceedings in which the appellants challenged the power of the Independent Commission Against Corruption to investigate an allegation concerning the appellants that was identified in the summons issued to the appellants by the Commission in October 2014, and challenged the lawfulness of the decision of the Commission to hold a public inquiry into the allegation (Cuneen v Independent Commission Against Corruption [2014] NSWCA 421). 4. This Court, by majority, declared that the Commission had no power to investigate the allegation concerning the appellants. Costs were reserved. The parties were granted leave to file within 14 days any application for an order as to costs, in the absence of which the respondent was to pay the appellants' costs both in this Court and in the Common Law Division. 5. By notice of motion filed 19 December 2014, the Commission has invoked the liberty granted on 5 December 2014 and seeks an order that each party pay their or its own costs of the proceedings in this Court and in the Common Law Division.

Submissions 1. The parties have filed written submissions in relation to this application. They are content for the application to be dealt with on the papers. 2. The Commission submits that the appropriate costs orders should reflect the appellants' mixed success in the proceedings, noting that the appellants failed on their challenge to the primary judge's refusal to order the provision by the Commission of reasons for the relevant decisions and that the appellants did not succeed on the issue as to whether the Commission's decision to conduct a public inquiry into the allegation miscarried. The Commission accepts that the appellants succeeded on the issue as to its power to investigate the allegation but maintains that they did so, on an argument that was not raised at first instance or in writing on the appeal. 3. Thus the Commission argues that, for the purposes of the general principle that costs follow the event, in the present case there were three 'events', on two of which the appellants failed. It contends that it would be unfair for it to be required to bear all of the costs of the proceedings in circumstances where the bulk of the costs concerned the pursuit and defence of issues and arguments on which the appellants failed; and that the relativity of the costs is such that the issues on which the appellants failed were at least equal to the costs associated with the issue on which they succeeded. 4. In that regard, the Commission points to the fact that at first instance the unsuccessful application for the provision of reasons was heard (and an indicative ruling given) separately from and before the application for declaratory and final injunctive relief was heard. It argues that it should not be in a worse position as to the costs of the unsuccessful application for the provision of reasons than it would have been had the primary judge made a separate costs order at first instance in relation to this issue. 5. As to the costs of the appeal, the Commission has analysed and compared the number of paragraphs of the respective parties' written submissions on the first and third issues, on which the appellants did not succeed, with the number of paragraphs on the second issue, on which the appellants succeeded (a ratio of 88:83 on the appellants' submissions; 56:33 on the Commission's submissions). 6. The appellants oppose the motion and seek a costs order in the terms indicated in order 5 of the orders made in December 2014, i.e., that the Commission pay their costs in this Court and in the Common Law Division. They maintain that the making of the declaration that the Commission had no power to investigate the allegation, from which it follows that the Commission had no power to hold the public inquiry, is the most important prevailing circumstance in the exercise of the costs discretion. They submit that the issue upon which they succeeded was both the dominant issue in the disposition of the proceedings and also the threshold issue, in the sense that, having succeeded on that issue, it was not necessary for this Court to determine any of the other issues in the proceedings. 7. The appellants cavil with the proposition that they failed on the question whether the Commission acted lawfully in deciding to conduct a public inquiry into the allegation and take issue with the characterisation of the various issues in the proceedings as discrete issues, though accepting that the issues were conceptually distinguishable. They argue that it is misconceived to suggest that they succeeded on an argument not put at first instance or in their written submissions; identifying as their primary argument at all times that, on the proper construction of s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW), the Commission had no power to investigate the allegation. 8. The appellants also point to the fact that the proceedings involved the conduct of a public authority in the discharge of its statutory powers affecting the fundamental rights of individual litigants, referring in this context to what was said by Sully J in Independent Commission Against Corruption v Cripps (Supreme Court, (NSW), Sully J, 1996, unrep) as to the position of the Commission compared with that of a person being investigated by the Commission and seeking to maintain a claim of right (though in Cripps the issue was as to whether an adverse costs order should be made against the individual where the Commission had succeeded). The appellants submit that, although they were the plaintiffs in the Common Law Division proceedings, they were essentially in a defensive position responding to the purported exercise by a public authority of its' powers.

Determination of application 1. The principles applicable where the court is invited to depart from the general rule and apportion costs as between the dominant or separable issues in a case involving multiple issues are not in dispute. They were considered in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373; Baker v Towle [2008] NSWCA 73; and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304. It is not necessary to restate those principles. 2. The Commission's argument for an apportionment of costs as between the various issues that were raised at first instance and on appeal has most force in relation to the appellants' unsuccessful application for reasons. In the Common Law Division the application for reasons was heard and dealt with in advance of the application for declaratory and injunctive relief, so that one might have expected that the costs of that application would be readily severable from the balance of the costs of the proceedings. In that sense, it was a separate issue from the balance of the issues in the proceedings, though necessarily connected with those issues since the provision of reasons would have enabled a more complete understanding of the context in which the other issues for determination arose. By contrast, the third issue (the decision to conduct a public inquiry) was one that arose for consideration only if the Commission did have power to conduct the investigation and it focussed on material already before the court in relation to the second issue. 3. What must also be borne in mind is the urgency which underpinned the expedition with which the applications were brought and dealt with both in the Common Law Division and on appeal. While the costs of the Common Law Division proceedings were no doubt increased by the preliminary application for the provision of reasons, that application formed part of the overall challenge to the decision made to investigate the allegations against the appellants. 4. When one asks who has had the success on the dominant issue in the proceedings, the answer must be the appellants. The central or dominant issue was the question of the power of the Commission. It cannot be said that the appeal was unduly lengthened by the submissions made on the remaining issues and the comparative paragraph count in the submissions is of little assistance, combining as it does the first and third issues. 5. I am not persuaded that this Court should depart from the general rule that costs follow the event in this case. The event, in my opinion, should be characterised broadly as the challenge to the power of the Commission to investigate the allegation. On that the appellants were successful. 6. The appropriate result is, as foreshadowed in the Court's order 5, 1. Order that the Commission pay: 1. The plaintiffs' costs of the proceedings in the Common Law Division, and 2. The appellants' costs in this Court, including the costs of this application.

********** 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: 13 March 2015