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Supreme Court 19 February 1999

Kable v DPP

[1999] NSWSC 95

Public order & justice offences

Citation: Kable v DPP [1999] NSWSC 95
Court: Supreme Court of New South Wales, Common Law Division
Date: 19 February 1999
Judge(s): Sully J

Background

The applicant had been subject to preventive detention orders made under the Community Protection Act 1994 (NSW). In February 1995, he was ordered to remain in custody until August 1995. His subsequent challenges to those orders were dismissed in proceedings before Sully J in July 1995 and before Grove J in August 1995. On each occasion, the applicant was represented by experienced senior counsel.

In September 1996, the High Court of Australia struck down the Community Protection Act 1994 as constitutionally invalid in the well-known decision reported at (1996) 189 CLR 51. No costs orders had been sought or made in the 1995 Supreme Court proceedings.

In July 1998, roughly two and a half years after those proceedings concluded, the applicant filed three Notices of Motion seeking to reopen the proceedings and obtain costs orders against the Director of Public Prosecutions. The DPP opposed all three applications.

  • Whether the High Court's invalidation of the Community Protection Act 1994 retrospectively created an entitlement to costs in the applicant's favour in the earlier proceedings.
  • Whether the Supreme Court's inherent power to reopen its judgments, or the relevant Supreme Court Rules, could be exercised to grant costs after such a delay.
  • Whether, even if such powers were available in principle, the discretion to reopen should be exercised in the applicant's favour on the facts.

Decision

Sully J held that the High Court's invalidation of the legislation did not, of itself, retrospectively create any costs entitlement for the applicant. The relevant principles on this point were drawn from the Court of Criminal Appeal's decision in Reg v Unger (1977) 2 NSWLR 990. The success of the constitutional challenge could not, on its own, found the costs applications.

The applicant then relied on the court's inherent power to reopen judgments and on several Supreme Court Rules. Sully J declined to resolve whether those powers extended as far as the applicant argued, because each power in question was discretionary. The relevant question was therefore whether the discretion should be exercised in the applicant's favour at all.

On the exercise of discretion, Sully J identified several countervailing factors. No costs order had been sought at either of the 1995 hearings, despite the applicant being represented by senior counsel on both occasions. The only explanation offered was that the solicitor had "overlooked" the possibility of a costs application. Sully J accepted that account as an honest recollection but described the oversight as surprising given the vigour of the litigation.

Critically, Sully J held that any weight that oversight might carry in the applicant's favour was outweighed by public interest considerations. A lapse of approximately two and a half years had passed since the proceedings were finalised, and the court was not persuaded that a sufficiently clear and compelling case had been made out to justify reopening the matters. Both contested Notices of Motion were dismissed with costs.

Orders Made

  • Notice of Motion in proceedings 12469/95 dismissed (not pressed by applicant); no order as to costs for that motion.
  • Notices of Motion in proceedings 11667/95 and 12775/95 dismissed with costs.

Key Takeaways

  • A successful constitutional challenge to legislation does not automatically create a retrospective entitlement to costs in earlier proceedings conducted under that legislation.
  • Discretionary powers to reopen finalised judgments, whether inherent or conferred by the Supreme Court Rules, will not readily be exercised where a significant period has elapsed and no adequate explanation exists for the failure to seek the relief at the time.
  • The unexplained failure to seek a costs order at the original hearing, even where senior counsel was present, weighed significantly against the applicant in the exercise of discretion.
  • Public interest considerations formed an independent basis for refusing to reopen proceedings after a lapse of around two and a half years.
  • Where a Notice of Motion is abandoned at the hearing without having added materially to the costs of the contested proceedings, a court may decline to make any costs order in relation to it.

Legislation and Cases Referenced

Legislation:
- Community Protection Act 1994 (NSW)

Cases:
- Kable v DPP (1995) 36 NSWLR 374 (NSW Court of Appeal)
- Kable v DPP (1996) 189 CLR 51 (High Court of Australia)
- Reg v Unger (1977) 2 NSWLR 990 (NSW Court of Criminal Appeal)

Rules:
- Supreme Court Rules, Part 40 Rule 9; Part 20 Rule 10; Part 42 Rule 12; Part 52 Rules 1(c) and (5)