Heywood v Local Court of New South Wales (Costs)

Category: Costs

Parties: Brigid Heywood (Plaintiff)
Local Court of New South Wales (First Defendant)
Senior Constable Heath Aiken (Second Defendant)

Representation: Solicitors:
J Portokalli (Plaintiff)
N Regener (Second Defendant)
Solicitors:
Hugo Law Group (Plaintiff)
Crown Solicitor’s Office (First Defendant) (Submitting Appearance filed on 14 July 2023)
Makinson d’Apice Lawyers (Second Defendant)

File Number(s): 2023/00215848

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the child informant’s name or any other information that might identify her is prohibited.

JUDGMENT

1. On 21 August 2024, I made an order under s 69 of the Supreme Court Act 1970 (NSW), prohibiting Magistrate Mark Richardson from hearing the proceedings Police v Heywood: Heywood v Local Court of New South Wales [2024] NSWSC 1047 (“Heywood (No. 1)”).

2. This order had been sought by summons filed on 6 July 2023, the day after the Magistrate refused to disqualify himself from continuing to hear criminal proceedings before him in the Local Court at Armidale. The grounds articulated in the summons were that there was available an apprehension of bias given the conduct of the Magistrate during the hearing, that he had wrongly refused the application made, that he should disqualify himself on the ground of apprehended bias, and that he had applied the wrong legal test when refusing the disqualification application. The summons named the Local Court of NSW as the first defendant, and the officer in charge of the investigation, Senior Constable Heath Aitken, as the second defendant: (“the O.I.C.”).

3. With notable alacrity, a submitting appearance was filed for the Local Court of NSW on 14 July 2023.

4. Rather surprisingly, the O.I.C. chose to contest the matter. He argued through his solicitors that the relief sought should be refused, that there was no basis for a determination of apprehended bias, that the Magistrate’s judgment refusing to recuse himself was correct, and that when the Court listens to the whole of the transcript of proceedings, a determination will be made that counsel then appearing for the accused, Mr Pappas “gave as good as he got” and so the remarks of the Magistrate should be viewed in that light.

5. There were written and oral submissions made that sought to argue – incorrectly – that the bases for judicial review articulated in the submissions were misconceived and that the Court should dismiss the summons with costs. Supplementary submissions were later made that even if there was apprehended bias, the Court should exercise its discretion to refuse the relief sought, because it would necessitate a young person giving evidence again and criminal proceedings should not be fragmented.

6. The approach taken by the O.I.C. meant that instead of the matter being able to be dealt with by review of the cogent and detailed written submissions authored by counsel Mr Howell, filed and served shortly after 24 October 2023, with a judgment to ensue, (potentially able to be written in Chambers), this Court was required to conduct a contested hearing over four separate hearing days, including delays entailed in waiting for provision of all of the recordings of the Local Court proceedings.

7. Ms Heywood seeks an order that her costs of the proceedings in this Court be paid by the O.I.C. on an ordinary basis under s 98(1) of the Civil Procedu**re Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). She argued that the O.I.C. actively opposed the relief she sought, filed written submissions opposing the orders, appeared at the hearing and urged the Court to dismiss the summons on both technical and substantive grounds, and in so doing, acted well beyond the role of a contradictor present to assist the Court.

8. The O.I.C. argued that the proper order is that there be no order as to costs, having the effect that each party would bear its own costs. The basis for this proposal was said to be disentitling conduct on the part of Ms Heywood via her counsel’s performance in the Local Court, citing Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

The position of the Local Court - Submitting Appearance filed on 14 July 2023, save as to costs

9. Written submissions were provided by the Crown Solicitor’s Office on behalf of the Local Court. Acknowledging the Court’s wide discretion under s 98 of the Civil Procedure Act*,* and accepting that a submitting appearance does not provide immunity to a party from costs, it was submitted that the conduct of the Magistrate as criticised in the judgment does not rise to the level that would warrant characterisation as “serious misconduct, impropriety or perversity” such as would justify a costs order against the Local Court: see generally El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596; [1999] SASC 113. Nor was there any “flagrant violation of a principle of justice”: see Willesee v Willesee [1974] 2 NSWLR 275 (“Willesee”) at 284.

10. I agree with that assessment.

11. Nor does the error of law made regarding the apprehended bias application justify such an order: see Willesee at 285*.*

12. After receipt of the Crown Solicitor’s Office written submissions, both Ms Heywood and the O.I.C. indicated in writing through their solicitors that they did not wish to be heard against an order that the first defendant bear its own costs of the proceedings. That order was entered on 2 December 2024, and the Crown Solicitor’s Office was excused from further attendance.

Costs submissions advanced by the O.I.C.

13. Initially, the solicitor for the O.I.C. asserted that he had done no more than act as “amicus curae” or “intervenor” in this Court. That submission was patently incorrect.

14. The primary submission that was maintained was that the general rule of costs following the event was displaced here because of disentitling conduct in the Local Court on the part of Mr Pappas, counsel then appearing for Ms Heywood. It was further argued that, because the conduct continued over a number of days, Ms Heywood had authorised this conduct.

15. The argument was developed by extracting negative assessments made by me in Heywood No. 1 about the behaviour of Mr Pappas and the solicitor Mr Taylor:

a. Mr Taylor (solicitor appearing in the Local Court for the plaintiff) made an inappropriate submission: [20];

b. Mr Taylor used an exasperated and defensive tone: [21];

c. Mr Taylor interrupted the learned Magistrate: [21];

d. Mr Taylor, in attempting to maintain his position, made invalid objections and did not articulate a proper basis upon which the issuing party should be prevented from viewing documents: [23];

e. Mr Pappas made gratuitous and insulting personal criticism of the prosecutor: [38];

f. Mr Pappas behaved offensively: [40];

g. Mr Pappas cross-examined the complainant in a “maladroit fashion”: [47];

h. Mr Pappas attacked the Police Prosecutor’s skill and experience, using offensive and belittling content, rather than just dealing with the substance of the objection in an appropriate fashion: [49];

i. Mr Pappas bullied the Prosecutor: [51];

j. Mr Pappas insulted the learned Magistrate’s competence: [51];

k. Mr Pappas was unacceptably rude: [53].

16. These things, argued the solicitor for the O.I.C., were “substantially responsible for the breakdown of the relationship with the bench” and so responsible for the Magistrate’s deteriorating conduct. It was submitted that “but for” this conduct, the deterioration would not have occurred:

“...the plaintiff’s counsel was a cause for these proceedings having to be commenced to seek the appropriate relief, … that is disentitling conduct such that the plaintiff ought not be compensated with a costs order for proceedings that may never have been necessary had the conduct identified … not been engaged in”. (Emphasis in the original).

17. It was submitted that this Court should perform an educative role “to broadcast to the profession that it behoves practitioners that it is inappropriate to pick a fight, bully, belittle or otherwise behave offensively toward other practitioner or the bench”.

18. It was further submitted that because a few of the minor incidents of tension in exchanges between Ms Heywood’s legal representatives and the Magistrate were ruled to add nothing to the overall question of apprehension of bias, this “caused the proceedings to take more time than they ought to have”, arguing that this too, was “disentitling conduct”.

19. Both this submission and the assertion that the O.I.C.’s lawyers acted only as disinterested contradictor, were formally withdrawn by supplementary written submissions filed on 12 December 2024. Neither submission was available and neither submission should have been made.

20. The solicitor for the O.I.C. argued that the conduct of Mr Pappas as an advocate should be visited on Ms Heywood on the basis of agent and principal, given that a litigant is generally bound by the manner in which its case is conducted by its legal representatives, and that certain decisions made would be attributed to the party who made them: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (2019) 99 NSWLR 447; [2019] NSWCA 73. It was argued that in the absence of any (affidavit) evidence from Ms Heywood, there was no basis for finding that what Mr Pappas did in this case was exercising his “independent judgment in the conduct and management of the case”, as opposed to it being conduct effectively authorised by Ms Heywood.

Consideration of the O.I.C.’s submissions as to costs

21. A number of the submissions made on behalf of the O.I.C. regarding costs illustrate, unfortunately, the misguided approach taken by him to this matter generally.

22. Whilst the Police Prosecutor did not make any submissions when the apprehended bias application was made before the Magistrate, and that was a proper and wise course to take, it must have been apparent from listening to the judgment as it was given ex tempore that the Magistrate had stated the wrong test not once, but three (and arguably four) times in his reasons without ever articulating the correct test. This was despite the correct test having been provided to him by Mr Pappas: see [84] to [90] of Heywood (No. 1).

23. Even if the Police Prosecutor was not adequately qualified or experienced to fully understand the legal position at that time, the summons filed the next day set it out. The error was also clearly and persuasively explained in Mr Howell’s written submissions of 24 October 2023. Instead of recognising that error, the solicitor advocate who appeared in this Court doggedly argued both orally and in writing in November and December 2023 and February 2024, that when the Magistrate’s reasons are read in their totality, the Magistrate applied the correct test. This submission was simply wrong.

24. That position, along with the rest of the position taken in response to the summons by the O.I.C. meant that a long hearing was inevitable. The contest by the O.I.C. to the detailed written submissions on the question of whether the cumulative effect of the various statements and incidents during the hearing were sufficient for a finding of apprehended bias, necessitated a careful approach by Mr Howell. That was particularly so, given the insistence by the solicitor for the O.I.C. that to properly evaluate the issue, the Court must listen to all of the recorded proceedings and that this would somehow make clear why he maintained his opposition to the order sought in the summons.

25. In their initial written submissions before this Court, the solicitor for the O.I.C. also sought to argue, on bases that were incorrect, that there were no proper grounds for judicial review at all. Whilst those submissions were later revised and frankly, improved, during legal argument in December 2023, they evidenced an attitude that every point was taken and every issue contested.

26. Returning to the disentitling conduct submission, whilst as I observed throughout my judgment there were matters to raise regarding Mr Pappas’s tone and rudeness, a significant reason the summons had to be filed was the obvious error of law made by the Magistrate in stating and applying the incorrect test for apprehended bias. In so doing he failed also to objectively evaluate his own conduct as to how it might be perceived by a lay observer.

27. The low bar presented by the apprehended bias test – that a lay observer might apprehend that a judicial officer might not bring an impartial mind to the issues in the case – underscores the essential need for the impression of impartiality by a judicial officer always to be maintained. The judicial obligation in that context is an overarching one, despite provocation by rude or badly behaved counsel.

28. The principles relevant to disentitling conduct were summarised by the Court of Appeal in Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 by McColl JA (with whom Macfarlan and Leeming JJA agreed) at [52]-[53]:

“In Oshlack v Richmond River Council [(1998) 193 CLR 72; [1998] HCA 11], McHugh J summarised what may be regarded as conduct disentitling a successful party from receiving a costs order as follows:

Misconduct' in this context means misconduct relating to the litigation: King & Co v Gillard & Co [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 812, or the circumstances leading up to the litigation: Bostock v Ramsey Urban District Council [1900] 2 QB 616. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation: Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842; Bostock…at 622, 625, 627; unnecessarily protracts the proceedings: Forbes v Samuel [1913] 3 KB 706; succeeds on a point not argued before a lower court: Armstrong v Boulton [1990] VR 215 at 223; prosecutes the matter solely for the purpose of increasing the costs recoverable: Hobbs v Marlowe [1978] AC 16; or obtains relief which the unsuccessful party had already offered in settlement of the dispute: Jenkins v Hope [1896] 1 Ch 278.

Disentitling conduct does not necessarily need to amount to misconduct. It may simply be any conduct 'calculated to occasion unnecessary expense' [Moseley v AB (No 2) [2017] NSWSC 1812 at [71], referring to Lollis v Loulatzis (No 2) [2008] VSC 35 at [29]; Keddie v Foxall [1955] VLR 320 at 323-324].”

29. The disentitling conduct upon which the O.I.C. relied is reproduced at [15] of this judgment. The conduct is, in the main, criticism of the style of the barrister and solicitor in the way they went about their roles. Whilst I observed that the cross-examination of the child complainant was laborious in style, she was the key witness in the prosecution case and it is unsurprising the cross-examination went for some time.

30. Mr Regener argued that the conduct identified in my judgment caused the Magistrate’s conduct to deteriorate and that he was consequently “provoked” into error.

31. There are a number of problems with this submission. First, these were matters that I identified as poor behaviour by counsel; these are not the Magistrate’s opinions. Second, I do not accept that flights of pomposity, ill-temper and inadequate question-formulation by counsel is conduct that can, in the circumstances here, be visited on his client. These are matters well within the province of an advocate. The approach Mr Pappas took to cross-examining the child complainant and the behaviour he exhibited in court is something for which he bears his own responsibility. The situation is distinguishable from forensic decisions to call or not call certain evidence, forensic gamesmanship, or deliberate delays or tactical obfuscations by a party, in response to which there are obvious and necessary principles in place that underpin the overriding requirement for just, quick, and cheap resolution of the real issues in dispute, finality in litigation, and where appropriate, costs consequences.

32. Nor do I accept the argument that “but for” the conduct of Mr Pappas, there would have been no apprehended bias problem at all in the proceedings. That is speculative. This Court must deal with what occurred, not speculate as to what might have occurred if people had behaved differently.

33. The O.I.C. as a party to the summons had an obligation to dispassionately assess his prospects of success in opposing the relief sought in the summons. He chose not to take the lead provided by the Crown Solicitor’s Office in filing a submitting appearance for the other defendant. A number of the arguments he posed were misconceived. A party is of course entitled to raise arguments it considers deserve judicial attention. The discretionary considerations raised regarding the general undesirability of fragmenting criminal proceedings and the unpalatable reality that the child complainant would have to give evidence again if the relief in the summons was granted, are obvious. Whilst worth mentioning, they too were ultimately unpersuasive and took only minutes of what had to be a much more involved undertaking given the overall attitude taken by the O.I.C. to the proceedings.

34. As I have said, all the arguments made in this Court by the O.I.C. failed, and the usual costs consequence of the considered choice made by the O.I.C. to oppose Ms Heywood’s claim, should follow.

Order

35. The second defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis.

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