FEDERAL COURT OF AUSTRALIA

Kirunda v Commissioner of Police, New South Wales Police Force (No 2) [2017] FCA 824

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is to pay the respondent’s costs of and incidental to the interlocutory application filed on 2 December 2016.

2.    The respondent is to file and serve an affidavit specifying the lump sum amount it seeks and the justification for that amount, together with a brief written submission not to exceed 3 pages in length, on or before 5pm on 28 July 2017.

3.    The applicant is to file and serve any affidavit in response, together with a brief written submission not to exceed 5 pages in length, as to whether or not a lump sum costs order should be made and, in the event that a lump sum costs order is made, in what amount, on or before 5pm on 11 August 2017.

4.    Finalisation of the costs order will be determined on the papers and without an oral hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The issue is whether or not costs should follow the outcome of the substantive proceeding, which is reported as Kirunda v Commissioner of Police, New South Wales Police Force [2017] FCA 735 (Kirunda No 1). The applicant’s interlocutory application filed on 2 December 2016 seeking an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia was dismissed for the reasons given in Kirunda No 1.

2    The Court made a provisional order that the applicant bear the respondent’s costs of his unsuccessful interlocutory application unless the applicant provided an outline of written submissions explaining why some other order as to costs should be made. The applicant has now provided such a submission, as has the respondent, in response. As previously indicated, the issue will now be determined on the papers.

3    The applicant opposes any costs order against him in respect of the interlocutory application filed on 2 December 2016. Indeed, he seeks his costs on an indemnity basis.

4    In broad terms the applicant’s reasons for seeking such an order are as follows:

(a)    His ongoing chronic pain and psychiatric injury affected his ability to deal with his claim.

(b)    The respondent has still failed to investigate or provide information concerning the applicant’s complaint dated 7 April 2016, which forms part of the proceedings which he seeks to have reinstated. He submitted that this failure “reinforces my belief that I am in danger of further acts of violence for which I cannot expect any help or protection from the police”.

(c)    The applicant has complained to NSW Victims Services about these matters, including his 7 April 2016 complaint, and he has alleged a breach of the NSW Victims Charter Rights. He said that the respondent has recently requested an additional 45 days from 23 June 2017 to respond to his Charter complaint.

(d)    The respondent’s “unmeritorious or disentitling conduct” was claimed by the applicant to be “criminal” under ss 46PM, 23 and 26(1) and (2) of the Australian Human Rights Commission Act 1996 (Cth), s 27 of the Racial Discrimination Act 1975 (Cth) and ss 307B and 307C of the Crimes Act 1900 (Cth).

(e)    The applicant claims that the respondent has breached the NSW Model Litigant Policy by “engaging in the actual or apparent criminal conduct” as outlined above.

(f)    The applicant says that his case raises matters of public interest over and above his private interests in that he sought a determination of:

(i)    the duty of an investigating officer to comply with the NSW Victims Charter of Rights;

(ii)    the interaction between the respondent’s duties to the applicant as an employee and as a victim of crime; and

(iii)    the scope of “services” that the police are obliged to provide to the public.

5    In his outline of written submissions, the applicant also sought an order that each party pay their own costs of the interlocutory applications filed on 17 and 21 March 2017 to adduce further evidence. As was stated in [115] of Kirunda No 1, the applicant did not seek costs in respect of either of those applications. Accordingly, no order for costs was made in relation to them (see Order 6 of the orders dated 30 June 2017). The effect was that each party had to bear their own costs. The applicant’s latest request, which is outside the scope of the leave which was granted to him to file written submissions on costs, must be rejected.

Disposition

6    For the following reasons, I consider that the applicant has failed to establish any basis for not applying the normal rule that costs follow the outcome as follows.

7    The respondent submitted that the applicant had given no good reason for departing from the normal rule that costs follow the outcome. The respondent also submitted for the first time that this is an appropriate case to make a lump sum costs order (under r 40.02(b) of the Federal Court Rules 2011 (Cth)).

8    The power of the Court with regard to costs is discretionary. The discretion must be exercised judicially.

9    The applicant’s health issues are not a relevant consideration on the question of costs, nor are his subjective fears of his vulnerability to “further acts of violence” and his related concerns regarding the lack of police protection. I am not satisfied that the applicant has established any unmeritorious or other disentitling conduct on the part of the respondent which would warrant a departure from the normal rule. Nor am I satisfied that the applicant has demonstrated there is a relevant and overarching public interest component in his case. On the contrary, the facts and circumstances relied upon by the applicant in the substantive proceeding relate overwhelmingly to his personal circumstances and subjective concerns.

10    Accordingly, the applicant should pay the respondent’s costs of the proceedings. It is regrettable that the respondent did not raise the issue of a lump sum costs order earlier than now. The applicant must be given an opportunity to address that question. In the interests of saving time and expense, I will make appropriate directions for the making of submissions and the filing of evidence on this matter before finalising costs on the papers and without a further oral hearing.

Associate:

Dated:    21 July 2017