FEDERAL COURT OF AUSTRALIA

Wright v Chief Commissioner of Police (Vic) [2020] FCA 21

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant’s costs thrown away by reason of the amendment of the Amended Defence.

2.    The costs of the applicant’s interlocutory application filed 1 April 2019 and the respondent’s interlocutory application filed 3 July 2019 be costs in the cause.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

1    This decision relates to the appropriate costs order in respect of two interlocutory applications that were dismissed by consent, save as to costs. The trial of the applicant’s claims is yet to occur.

2    The applicant, Stuart Wright, commenced this proceeding on 3 September 2018. He claims that the respondent, the Chief Commissioner of Police in Victoria (Commissioner), discriminated against him on the basis of his assistance animal, a dog named Frankie, and on the basis of his disability in employment. The applicant pleads, in broad summary, that the Commissioner excluded or prevented him from performing a role in Victoria Police that was held by the applicant and, in doing so, unlawfully discriminated against the applicant. The Commissioner denies on various grounds the allegations that he unlawfully discriminated against the applicant.

3    The first interlocutory application was filed by the applicant on 1 April 2019 (Discovery Application). The applicant sought discovery of documents relating to the identification and training of police trained dogs and the training of the handlers of those dogs. In response, the Commissioner objected to the production of three documents (documents in dispute), comprising manuals that, broadly described, instructed officers in Victoria Police’s dog squad officers on how to train their dogs for operational duties. The Commissioner’s objection was on the basis that the documents in dispute were subject to public interest immunity, and were otherwise only of marginal relevance to the ultimate issues for determination by the court.

4    The second interlocutory application was filed by the Commissioner on 3 July 2019 (Non-Disclosure Application). It relates to an affidavit filed by the Commissioner to support his public interest immunity claim in respect of the documents in dispute. The Commissioner’s written submissions described that the closed version of the affidavit outlined in greater detail the ways in which perpetrators could effectively evade detection or escape custody if the documents in dispute were disclosed. The Commissioner sought orders that the closed version of the affidavit not be disclosed to any person, including the applicant or his representatives. The applicant opposed this application.

5    The two interlocutory applications (collectively, the applications) were heard by me on 5 September 2019. However, after the parties made submissions in relation to the relevance of the Manual to the issues in dispute, the Commissioner sought the opportunity to further amend his Amended Defence. The hearing was adjourned. The parties subsequently engaged in correspondence regarding further drafts of a “Further Amended Defence”, however no amendment was filed within the timeframe expected, and the hearing of the applications was set to resume on 16 December 2019.

6    The applications were dismissed by consent, save as to costs, on 6 December 2019. The parties agreed that they would file written submissions in respect of the costs of the applications, and that the appropriate order as to costs would be determined by me on the papers. The applicant argues that the Commissioner acted unreasonably in the course of the applications, such that the Commissioner should be required to pay the applicant’s costs of the applications. The Commissioner accepts that he ought to pay the applicant’s costs thrown away by reason of the amendment of the Amended Defence, but that the costs of the applications ought to be costs in the cause.

7    For the reasons set out below, I agree with the Commissioner. The conduct of the Commissioner in the course of the applications was not so unreasonable such as to warrant a costs order against him. As such, the Commissioner will be required to pay the applicant’s costs thrown away by reason of the amendment of the Amended Defence, but the costs of the applications will be costs in the cause.

Relevant procedural history

8    Some key events in the proceeding to date have been summarised above. It is necessary to further outline the matters pleaded by the parties and the events leading up to the dismissal of the applications.

Current pleadings

9    The applicant’s current pleadings are his Further Amended Statement of Claim dated 14 November 2018 and Amended Reply dated 30 January 2019. The applicant’s overarching complaint is that the Commissioner discriminated against the applicant on the basis of his assistance animal and on the basis of his disability in employment within the meaning of s 15 of the Disability Discrimination Act 1992 (Cth) (DDA).

10    The key factual aspects of the applicant’s pleaded case may be summarised as follows:

(a)    in 2011, the applicant was diagnosed with post-traumatic stress disorder (PTSD), being a disability within the meaning of section 4 of the DDA;

(b)    from February 2013, the applicant held the position of Senior Constable, Crime Prevention Officer in Proactive Policing Unit, in a particular region and division of Victoria Police (Position);

(c)    since August 2016, the applicant has been accompanied by a dog, Frankie, who is an assistance animal within the meaning of s 9(2) of the DDA. Frankie was trained by Assistance Dogs Australia as a PTSD Service Dog to alleviate the effects of PTSD by providing support and assistance to a person with PTSD. From this time, the applicant required Frankie to accompany him, including while performing the Position;

(d)    the applicant first requested that he be permitted to bring Frankie to work in the first week of August 2016, and notified the Commissioner that Frankie was required for a medical purpose on or around 15 August 2016;

(e)    from on or about 27 September 2016 to 3 October 2016, the Commissioner excluded the applicant from attending the Position accompanied by Frankie. This occurred by the applicant’s superior advising the applicant that he was not permitted to enter any police station, not attend work and perform the duties of the Position, if he was accompanied by Frankie;

(f)    from 3 October 2016 to 14 November 2016, the Commissioner did not permit the applicant to perform the full duties of the Position while accompanied by Frankie. While the applicant was permitted during this period to return to work, the applicant was only permitted to work at a particular police station, and could not enter any other police station or enter in any police vehicle, while accompanied by Frankie;

(g)    on or about 14 November 2016, the Commissioner changed the applicant’s position such that the applicant ceased performing the Position. The effect was a re-assignment to a position in which he could be accompanied by Frankie but which involved different duties to the Position, offered fewer prospects for promotion, and involved duties unsuitable for the applicant with his condition of PTSD;

(h)    in January 2017, the applicant sought to return to the Position with Frankie but was not permitted by the Commissioner to do so, and has not been permitted to return to the Position since. This is despite the applicant’s treating psychologist certifying that the applicant was capable of performing the duties of the Position; and

(i)    in July 2018, the applicant was offered to return to work, accompanied by Frankie, on reduced hours in a role other than the Position. The applicant accepted this arrangement because it was the only position offered to him.

11    As at the commencement of the hearing, the Commissioner’s current pleading is the Amended Defence dated 4 December 2018, although the Commissioner foreshadowed the filing of a Further Amended Defence. Under the Amended Defence, the Commissioner denies that he discriminated against the applicant on the bases alleged. The key factual aspects of the Commissioner’s defence may be summarised as follows:

(a)    the Commissioner accepts that the applicant was diagnosed with PTSD, and that this is a disability within the meaning of s 4 of the DDA;

(b)    the Position had certain inherent requirements (Inherent Requirements);

(c)    dogs working in an operational environment in Victoria Police are trained to respond to operational situations (Police Trained Dogs), and are deployed only in specific situations, with properly trained handlers;

(d)    Frankie is not a Police Trained Dog;

(e)    although the applicant requested that he be permitted to bring Frankie to work with him on or about 27 September 2016, but only as a companion. The Commissioner only first became aware that Frankie was required for a medical purpose on or around 2 January 2018;

(f)    during the period from 27 September 2016 to 14 November 2016, the applicant was not able to safely carry out the Inherent Requirements with or without Frankie. This is because, amongst other reasons, the Inherent Requirements did not permit an operational officer to carry out their duties with a dog that was not a Police Trained Dog. Neither was the applicant trained to work with a Police Trained Dog. This is the reason why the applicant was not permitted to return to the Position;

(g)    the Commissioner admits that he changed the applicant’s position on 14 November 2016 to a position in which he could be accompanied by Frankie, but that this change was done with the consent of the applicant, the applicant’s union representative, and the applicant’s treating practitioner; and

(h)    while the applicant was in the revised position, the applicant said he re-aggravated his PTSD condition and, as a result, the applicant commenced a leave of absence on 21 December 2016.

12    It is necessary for current purposes to extract a passage repeated on a series of occasions in the Commissioner’s Amended Defence. The relevant passage expressed that

the presence of a dog that was not a Police Trained Dog (whether the dog was an assistance dog or otherwise) whilst the Applicant performed the Position would create an unacceptable risk to the life or safety of the public, fellow members of Victoria Police or the Applicant himself.

Applicant’s Discovery Application

13    The applicant’s requests for discovery in this proceeding have a prolonged history, much of which is unnecessary to recount. The following events are relevant.

14    On 19 March 2019, the Commissioner filed further and better particulars in response to requests made by the applicant’s solicitors about the “unacceptable risk” referred to in the passage extracted above at [12]. The particulars provided were lengthy. Amongst a number of other matters, the Commissioner’s solicitors stated that:

(a)    a non-Police Trained Dog represents an unpredictable variable in a police operational situation for which they are not trained by Victoria Police;

(b)    the presence of a non-Police Trained Dog in such a situation has the potential to:

(i)    put at risk the effectiveness of an operational policing situation; or

(ii)    increase the risk to the life, safety and welfare of the public;

(c)    these risks are only increased in circumstances where the applicant's non-Police Trained Dog will be in the presence of the Applicant and possibly other members of Victoria Police who are not police trained to work with dogs in an operational police situation;

(d)    the risks may manifest by, for example:

(i)    a non-Police Trained Dog responding inappropriately during a police operational situation; or

(ii)    members of the public responding adversely to the presence of a non-Police Trained Dog during a police operational situation;

(e)    these matters also present an unacceptable risk to the public, members of Victoria Police and/or the applicant because, as an operational officer in Victoria Police, the applicant has a duty to respond to unplanned as well as planned situations requiring police assistance;

(f)    in particular, it is an unacceptable risk to the applicant, members of the public and/or members of Victoria Police that the judgment or concentration of the applicant (or another member of Victoria Police or a member of the public in the presence of the applicant) if the applicant or any other person's reactions to an operational policing situation (which could involve imminent risk of death or serious injury) were compromised to any material degree by:

(i)    concern for the welfare, life or safety of a non-Police Trained Dog that was also present;

(ii)    any behaviour or conduct of a non-Police Trained Dog that was present in such a situation; and

(g)    in addition to the matters above, the presence of Frankie at all material times with the applicant whilst the applicant performs operational policing duties constitutes an unacceptable risk to the public, fellow members of Victoria Police and/or the applicant because not all operational policing situations are suitable for the attendance of a dog, whether such dog be a Police Trained Dog or a non-Police Trained Dog.

15    By 29 March 2019, the parties’ respective positions on the categories of discovery had crystallised. A Registrar of the Court made an order by consent requiring the parties to make discovery of the agreed categories of documents. However, the class of documents that became the subject of the applicant’s Discovery Application remained a sticking point.

16    On 1 April 2019, the applicant filed the Discovery Application. The application sought the following orders:

Pursuant to rule 20.13 of the Federal Court Rules 2011 (Cth):

1.    By 4pm on the date two weeks from the date of this order, the Respondent provide to the Applicant, by way of discovery any document recording:

a.     the number, type, breed, selection process, and training process and procedure relating to each type of Police Trained Dog; and

b.     the training, including OSTT training, of dog handlers for each type of Police Trained Dog.

Commissioner’s Non-Disclosure Application

17    On 3 July 2019, the Commissioner filed an open affidavit of Mark Andrew Boysen, a Sergeant in the specialist dog squad in Victoria Police. The open affidavit described, in general terms, the dog squad at Victoria Police, the relevance and importance of Police Trained Dogs, the development of the manuals comprising the documents in dispute and the bases for objecting to disclosure of those documents. Sgt Boysen had also sworn a confidential version of the affidavit, which the Commissioner’s written submissions described as outlining in greater detail the ways in which perpetrators could effectively evade detection or escape custody if the documents in dispute were disclosed.

18    On the same date, the Commissioner filed the Non-Disclosure Application in respect of Sgt Boysen’s confidential affidavit. The application sought the following orders:

1.     Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the Confidential Affidavit of Mark Andrew Boysen sworn on 3 July 2019 not be disclosed (by publication or otherwise) to any person, including the Applicant, the Applicant's solicitors, or any other person.

2.     That the Confidential Affidavit of Mark Andrew Boysen referred to in order 1 be marked ‘Confidential - not to be opened without the permission of a Judge of this Court.’

3.     Pursuant to s 37AJ(1) of the Federal Court of Australia Act 1976 (Cth), Order 1 and 2 operate until subsequent order of this Court.

4.     Pursuant to s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), the ground for Order 1 is that the order is necessary to:

a.     The order is necessary to prevent prejudice to the proper administration of justice;

   b.     The order is necessary to protect the safety of persons.

Hearing on 5 September 2019

19    The hearing on 5 September 2019 was listed for me to hear and determine both applications. This required consideration of the relevance of the documents in dispute to the pleaded issues and the Commissioner’s claim of public interest immunity in respect of the documents. As things eventuated, the submissions and discussion at the hearing centered on the relevance of the documents in dispute, and, in particular, the relevance of the necessary training of Police Trained Dogs. It is necessary to note a few aspects of the hearing.

20    The applicant maintained that the Commissioner’s pleaded defence squarely raised the distinction in training between Police Trained Dogs and other dogs. In the course of explaining the relevance of the documents in dispute by reference to the matters pleaded, senior counsel for the applicant, Ms Harris, stated the following:

MS HARRIS: … In respect of relevance, the respondents appear to perhaps accept there might be some relevance, but, say … that the concept of police trained dogs and the purposes for which it’s raised won’t be illuminated by the provision of these training manuals. We don’t accept that that’s the case so long as that form of pleading remains the way they wish to run their defence.

HIS HONOUR: Yes.

MS HARRIS: It may well be that police training manuals is totally irrelevant to really the question of is Frankie going to be able to be safely – putting aside the technicalities of defences, we accept that there will be an issue. Can Frankie the assistance animal be safely accompanying Mr Wright on his operational duties. That’s going to be the heart of the matter. It may well be that that dog training manuals are quite irrelevant to that question.

21    Later, at the commencement of her reply submissions, Ms Harris maintained that the Commissioner’s pleaded defence put the training of Police Trained Dogs in issue. Ms Harris suggested that an appropriate response for the Commissioner would be to recast his defence. Immediately afterwards, the following exchange was held between senior counsel for the Commissioner, Mr Hanks, and I:

HIS HONOUR: Mr Hanks, you wish to have a second bite at the cherry?

MR HANKS: No, I just want to respond to what my friend, Ms Harris, said about amendment, effectively. It might be – but I don’t have any instructions on that - - -

HIS HONOUR: No.

MR HANKS: - - - but it might be that that’s an efficient way forward, and that type of amendment that is floating in the air, if I might put it that way, in this courtroom - - -

HIS HONOUR: I must say, the way in which you presented your submissions to me seemed to be, with respect, much clearer than the pleading.

MR HANKS: Yes. So it seems to me, it’s distinctly likely that we will avoid the risk of having to expose the training manuals if such an amendment is made.

22    The hearing was shortly thereafter adjourned for Mr Hanks to obtain instructions. Upon resumption of the hearing, Mr Hanks expressed the following:

MR HANKS: Your Honour, I should tell you that my side has conferred and we want the opportunity to see if we can amend the defence - - -

HIS HONOUR: Yes.

MR HANKS: - - - that’s currently called the “amended defence”. Now, it may be that when we show it to our friends, and we had in mind that we would show it to them before we showed it to you - - -

HIS HONOUR: Yes.

MR HANKS: - - - that that might diminish their enthusiasm for the form of discovery they’re currently seeking. I can’t guarantee it will - - -

HIS HONOUR: No.

MR HANKS: - - - but it might, and, therefore, we think it is worth attempting to amend the current version of the defence with that objective in mind.

23    As a result, a timetable was informally agreed between the parties and I so that the Commissioner would be entitled to prepare a draft Further Amended Defence, and share that draft with the applicant, prior to the resumption of the hearing. The hearing was initially adjourned to 10 October 2019, and the subsequently to 16 December 2019.

Correspondence following the hearing

24    On 4 October 2019, the Commissioner’s solicitors provided the applicant’s solicitors with a document entitled “Further Amended Defence”, which removed the concept of a “Police Trained Dog”.

25    On 9 October 2019, the applicant’s solicitors advised the Commissioner’s solicitors that it took issue with the proposed pleading on the basis (amongst others) that the pleading continued to put into relevance training provided by Victoria Police to its dogs and the fact that Frankie was “trained by an organisation that was not Victoria Police”. However, the applicant’s solicitors noted that, subject to those points, the applicant would not oppose the Commissioner seeking leave to file the proposed pleading subject to the Commissioner agreeing to pay the costs of and incidental to the applications, and costs thrown away as a result of the further amendment to the Amended Defence.

26    On 13 November 2019, the Commissioner’s solicitors provided an updated draft of the Further Amended Defence. However, this draft did not remove the reference to the fact that Frankie was “trained by an organisation that was not Victoria Police”. The cover letter from the Commissioner’s solicitors relevantly stated the following:

Substantive objections

3     … you say that our pleading impermissibly relies upon the fact that Frankie was trained by an organisation that was not Victoria Police. We accept that the nature of Frankie's training as an assistance animal is not in dispute. The fact that the nature of the training is not disputed does not make it inappropriate to be pleaded.

4     The fact that Victoria Police did not train Frankie means that Victoria Police has less insight into the way that Frankie is likely to react to certain stimuli. That is relevant to whether it is safe to have Frankie accompany a police officer carrying out operational duties, and is one of the reasons that Frankie was not permitted to accompany the Applicant while carrying out a role with operational responsibilities. The particular content of the training provided by Victoria Police is not part of this pleading.

27    In relation to costs, the Commissioner’s solicitors stated that the Commissioner “does not object to your client having the costs to which it is entitled to under the Rules, but sees no basis for an order of the kind set out in your letter of 9 October”.

28    On 20 November 2019, the applicant’s solicitors invited the Commissioner’s solicitors to again re-draft the proposed Further Amended Defence. The applicant’s solicitors said that the new pleading “should be re-drafted to clearly exclude any possibility that the content of the training provided by Victoria Police is relevant to this proceeding”.

29    On 28 November 2019, the Commissioner’ solicitors provided the applicant’s solicitors with a third revised draft of the Further Amended Defence. This draft abandoned the concepts of “Police Trained Dog” and any reference to Frankie being trained “by an organisation that was not Victoria Police”. The letter from the Commissioner’s solicitors relevantly expressed the following:

6    The assurance you seek that in effect there will be no possibility of the content of the training provided by Victoria Police being relevant to this proceeding cannot be given.

7     The level of relevance of training provided by Victoria Police also cannot be fully assessed prior to the receipt of your client’s evidence.

8     With respect to the relevance of the disputed documents on the current state of the pleadings … our client’s position remains [that] … the disputed documents are of marginal relevance to the proceeding. This has been our client’s consistent position.

30    On 2 December 2019, the applicant’s solicitors notified the Commissioner’s solicitors that, in light of the most recent revisions to the proposed Further Amended Defence, the applicant no longer intended to press the Discovery Application. The applicant’s solicitors provided a draft proposed minute of consent orders, which included a proposed order that the Commissioner pay the applicant’s costs of and incidental to the applications.

31    Later that day, the Commissioner’s solicitors responded to the applicant’s proposed orders. The Commissioner’s solicitors stated that they did not agree that the costs of the applications should be paid by the Commissioner. The letter from the Commissioner’s solicitors noted that Victoria Police maintained that its claim for public interest immunity was “supported by cogent evidence” and was “properly made”. The letter further expressed that

[b]efore the amendment to the Amended Defence, the dog training manuals were of marginal relevance, and they are of even less relevance now. The changes to the pleading remove the focus on the content of the dog training, and instead focus on the outcome of that training - the way that the dog in question responds to particular stimuli.

32    On 3 December 2019, the parties informed my chambers that they no longer wished to press their applications, save for the question of costs. Two days later, on 5 December 2019, the parties informed my chambers that, although the parties had not reached agreement on the question of costs, they had agreed on a proposed approach to determine that question.

33    In accordance with the approach proposed by the parties, I ordered on 6 December 2019 that:

(a)    the hearing on 16 December 2019 be vacated;

(b)    the applications be dismissed, save as to costs;

(c)    the parties have leave to file written submissions on the disposition of costs of the applications; and

(d)    the costs of the applications would be determined by me on the papers.

Submissions

34    The applicant seeks an order that the Commissioner pay the applicant’s costs of and incidental to the applications, in addition to the applicant’s costs thrown away by reason of the amendment of the Amended Defence. In support of this submission, the applicant raises, in summary, that:

(a)    the applicant did not pursue its Discovery Application because the Commissioner lacked a cogent claim for public interest immunity, but because the Amended Defence squarely put in issue the relevance of the training of the Police Trained Dogs;

(b)    from December 2018, the applicant had repeatedly made clear the relevance of the documents sought by way of its Discovery Application;

(c)    nevertheless, the Commissioner persisted to disavow the relevance of the concept of “Police Trained Dogs” until the day of the hearing. This conduct was clearly unreasonable; and

(d)    moreover, the Commissioner only objected to the applicant’s proposed orders in respect of costs at a very late stage, which provides further illustration of his unreasonable conduct.

35    The Commissioner accepts that the applicant ought to have his costs thrown away by reason of the amendment of the Amended Defence, but that the costs of the applications ought to be costs in the cause. The Commissioner raises, in summary, that:

(a)    the Commissioner has at all times maintained that the training of Police Trained Dogs was not, in and of itself, relevant to the issues to be determined at trial;

(b)    the applicant did not await the filing of evidence to be led at trial to test its claim that the training received by Police Trained Dogs was of pivotal relevance. The Commissioner’s repeated assurances to the contrary did not have any effect;

(c)    senior counsel for the applicant appeared prepared at the hearing to accept for the first time that the documents in dispute might be of limited relevance (see the transcript extract at [20] above). Moreover, the court indicated at the hearing that there may be shortcomings with the Commissioner’s pleadings (see the transcript extract at [21] above); and

(d)    it was in this context that the Commissioner sought to amend his pleadings, to which the applicant consented in due course.

Relevant principles

36    The award of costs is in the discretion of the court: s 43(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act); Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 at [3] per Nicholas, Beach and Burley JJ; Umoona Tjutagku Health Service Aboriginal Corp v Walsh [2019] FCAFC 32 (Walsh) at [41] per White, Perry and Banks-Smith JJ. That discretion is broad, and takes into account a broad evaluative judgment of what justice requires: Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113; 315 ALR 1 (Gray) at [2] per French CJ, Hayne, Bell, Gageler and Keane JJ. The discretion must be exercised judicially, that is, not arbitrarily or capriciously: Walsh at [41] per White, Perry and Banks-Smith JJ, citing Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [22] per Gaudron and Gummow JJ. Ordinarily, costs will be awarded to the successful party, although other factors may influence the court’s discretion: Gray at [2], citing Stewart v Atco Controls Pty Ltd (In liq) (No 2) [2014] HCA 31; 252 CLR 331 at [4] per Crennan, Kiefel, Bell, Gageler and Keane JJ; see also Walsh at [42].

37    The power of the court to make a costs award in respect of the applications remains even though the court is no longer called upon to adjudicate the merits of those applications due to compromise between the parties. The principles relevant to determining whether or not to make a costs order in those circumstances were summarised as follows by McHugh J in Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; 186 CLR 622 (Qin) at 624-5:

In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action…

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.

(Citations omitted.)

38    Thus, the starting position is that, in the absence of a hearing on the merits, a costs order in favour of a party will only be made in special circumstances: Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 283 at 287 per Finkelstein J. However, as McHugh J noted in Qin, the court may determine that one party should be awarded costs because the other party has acted so unreasonably in either commencing or undertaking the case: see also Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17 at [22] per Marshall, Edmonds and Greenwood JJ. For an example of such a case, see Consolidated Byrnes Holdings Ltd v Hardel Investments Pty Ltd [2009] FCA 399; 176 FCR 348 at [347]-[367] per Lander J.

39    The critical question in this case is whether, as alleged by the applicant, the Commissioner acted so unreasonably in the conduct of the applications such that, rather than the costs of those applications being in the cause, the Commissioner should be required to pay the applicant’s costs.

Consideration

40    My view is that, for the following reasons, the conduct of the Commissioner in the course of the applications was not so unreasonable such as to warrant a costs order against him.

41    It is regrettable that it took about 15 months since the commencement of the proceeding for the parties to reach the position which led to the dismissal by consent of the applications on the basis of the foreshadowed amendments by the Commissioner to the Amended Defence. But the duration and intensity of pre-trial disputes does not, by itself, demonstrate unreasonableness by one or more of the parties.

42    Having now reached this juncture, it is easy to look back and ask, as the applicant does, why the Commissioner did not amend his pleaded defence at an earlier stage. The applicant says that the Commissioner was aware from an early stage of the basis of the applicant’s Discovery Application, and the steps that the Commissioner could take to avert it. As the sequence of events have demonstrated, the Commissioner did have the option of avoiding direct confrontation with the Discovery Application.

43    The Commissioner was evidently of the belief that he had a strong claim to public interest immunity over the documents in dispute. This was clear from an early stage in the communications between the solicitors for the respective parties. For instance, in a letter to the applicant’s solicitors dated 23 January 2019, the Commissioner’s solicitors expressed the following:

[W]e are instructed that information concerning the breed, selection, and training process of Police Trained Dogs are matters of significance to Victoria Police. If information of that kind were made public, it could enable individuals to undermine the efficacy of police dogs in different situations. Accordingly, information responsive to this category is subject to [] a claim of public interest immunity.

44    Additionally, on 27 February 2019, after further correspondence, the Commissioner’s solicitors stated that

We are instructed that there is a significant public interest in the confidentiality of the methods used by Victoria Police to train police dogs. The availability of that information could compromise public safety and police operations in the following ways:

•     Public awareness of the training of explosives detection dogs could be used to compromise the effectiveness of explosives detection by Victoria Police, thereby increasing the risk of a successful terrorist event.

•     Public awareness of the training of narcotics dogs could be used to avoid detection of concealed drugs and weapons, to the detriment of the Victorian public.

•     Public awareness of the training of general purpose dogs could allow offenders to avoid detection or apprehension.

…

The documents you seek provide details of the ways in which dogs are trained to detect narcotics, detect explosives, and search for and subdue offenders.

We do not understand how documents of this kind are relevant to your client’s case, and we note that you have failed to explain their relevance, despite our recent request that you do so.

In all of the circumstances, our client does not agree to provide the requested documents.

We are instructed to resist any application for discovery by your client in respect of this category of documents

45    The Commissioner was faced with the applicant’s argument that the documents in dispute were relevant to the defence pleaded by the Commissioner. Instead of altering the initial, and perhaps natural, basis on which he pleaded his response to the applicant’s claims, the Commissioner directly objected to the production of the documents on the basis of the public interest in preserving the confidentiality of their contents. Even if this approach could be characterised as dogged, or stubborn, it may not, in my view, be characterised as so unreasonable such that the Commissioner should face an adverse costs order.

46    The course of these pre-trial disputes pivoted on the day of the hearing before me. Although I had expected to deal with the public interest immunity claims in full, it emerged that this may be unnecessary. Having heard the parties’ submissions, I expressed to Mr Hanks, as extracted above, that the way in which he had presented the Commissioner’s defence appeared to be clearer than the way the defence was pleaded. The question of amendment was thus brought front and centre. The Commissioner’s representatives were responsive to this discussion, as would be expected in accordance with their obligations to assist the Commissioner to act consistently with the overarching purpose governing civil proceedings in this Court: see s 37N(2) of the Federal Court Act. The result was that the hearing was adjourned and the Commissioner was provided an opportunity to prepare a draft amendment, and confer with the applicant.

47    From one perspective, I empathise with the position of the applicant’s representatives, who may have experienced frustration prior to the hearing with the Commissioner’s resistance regarding the relevance of the training of police dogs. But sometimes it requires direct engagement of senior counsel at a hearing in court, and the natural dialogue with the court, to fully expose and address any perceived shortcomings with pleadings.

48    Moreover, I do not discern any unreasonableness in the manner in which the Commissioner objected to the costs orders proposed by the applicant after the hearing. Although the Commissioner’s solicitors did not provide any detailed explanation for the Commissioner’s opposition until 2 December 2019, shortly prior to the parties having to update my chambers on the progress of the pre-trial dispute, the Commissioner’s solicitors had already highlighted the Commissioner’s opposition in a letter to the applicant’s solicitors dated 13 November 2019. During this time, the parties were primarily focussed on the amendment to the Amended Defence, so my view is that this sequence does not establish any unreasonableness on the part of the Commissioner.

49    As highlighted in the legal principles summarised above, the ordinary position is that, in the absence of a hearing on the merits of the applications, a costs order in favour of the applicant should only be made in special circumstances. My view, on balance, is that the circumstances of this case do not justify a departure from that position.

Conclusion

50    For the reasons set out above, the Commissioner will be required to pay the applicant’s costs thrown away by reason of the amendment of the Amended Defence, but the costs of the applications will be costs in the cause.

Associate:

Dated:        20 January 2020