HER HONOUR: Ali Kalache faced charges for offences of domestic violence in the Local Court. During the hearing of those proceedings, he brought proceedings in this Court seeking an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) prohibiting a magistrate from continuing to hear the proceedings on the grounds of apprehended bias. On 22 November 2017, I dismissed that application: Kalache v Local Court of New South Wales [2017] NSWSC 1614.
The proceedings first came before Hamill J as duty judge on referral from the registrar to hear an urgent application by the plaintiff for a stay of the underlying criminal proceedings, the hearing of which was due to resume on 24 November 2017. On that occasion, the second defendant, Senior Constable Ivan Hughes, appeared. Having ascertained that the proceedings could be heard on a final basis prior to the scheduled resumption of the hearing in the Local Court, Hamill J refused to grant a stay. Senior Constable Hughes sought his costs of the hearing before Hamill J. His Honour reserved that question to the judge hearing the matter on a final basis: Ali Kalache v Local Court of New South Wales [2017] NSWSC 1606 at [32].
The proceedings were accordingly relisted before me this morning to hear the costs application. Senior Constable Hughes was not represented at the substantive hearing before me and does not seek any costs in respect of that hearing. The application is confined to the costs of the hearing before Hamill J. I have concluded that Mr Kalache should pay Senior Constable Hughes' costs of that hearing, for the following reasons.
The proceedings in this Court were brought after the Magistrate had refused to disqualify himself. That decision was given on 25 August 2017 but the summons was not filed in this Court until 6 November 2017, less than three weeks before the scheduled resumption of the hearing in the Local Court. The summons was made returnable on 16 November 2017, eight days before the scheduled resumption of the hearing in the Local Court.
The summons was served on Senior Constable Hughes on 7 November 2017 with no accompanying affidavit or submissions. On the morning of 14 November 2017, Senior Constable Hughes served a notice of appearance and indicated his intention to appear on the return of the summons. At 3:13pm that day, Mr Kalache served written submissions on the solicitor acting for Senior Constable Hughes. At 11:03 that night, Mr Kalache sought Senior Constable Hughes' consent to the stay. He declined to give that consent.
The prosecution of the charges had already suffered considerable delay by that time. The offences were alleged to have been committed in April and May 2016. The hearing in the Local Court commenced on 7 April 2017. It was stood over part-heard to 25 August 2017, which is when the Magistrate was asked to recuse himself. It was stood over again, to 24 November 2017. At that stage, the complainant had given her evidence in chief but had not yet been cross-examined.
At the hearing before Hamill J, Senior Constable Hughes submitted that he should not have been named individually as a defendant and sought to be released from the proceedings on that basis. It was submitted that the appropriate course would have been to name an institutional defendant rather than an individual. However, as recorded at [6] of Hamill J's judgment, that application was ultimately not pressed. In those circumstances, it is appropriate to determine the application for costs on the assumption (without determining the issue) that Senior Constable Hughes was properly joined in the proceedings.
Senior Constable Hughes accepts that, assuming he was properly joined, he was disinterested in the substantive application to prohibit the Magistrate from hearing the proceedings and would ordinarily have filed a submitting appearance from the outset. His explanation for appearing before Hamill J and seeking his costs incurred during that period was that, owing to the lateness of Mr Kalache's application for a stay and the lack of reasonable notice of that application, he felt compelled to take an active role in opposing the stay pending consideration by the Attorney General as to whether to seek leave to intervene. Senior Constable Hughes submitted that, had he failed to take that role, the Court would have been left without a contradictor on the stay application.
Mr Kalache did not dispute that, absent an appearance on behalf of Senior Constable Hughes, there would have been no contradictor on the stay application but maintained that no contradictor was required. Justice Hamill took a different view. His Honour stated that he would not hear the application for a stay in the absence of a contradictor (16/11/17 T9.29). His Honour accordingly made arrangements for the Attorney General to give urgent consideration to the matter and stood the stay application down until later in the day. In my respectful opinion, that was the appropriate course. Had the Attorney General declined to intervene, the Court may have been left without a contradictor, or Senior Constable Hughes may have sought advice as to whether to maintain an adversarial role. The point is that the timing of the application and the absence of any reasonable prior notice of it deprived the relevant parties of the opportunity to consider those issues.
After a brief appearance on behalf of the Attorney General, the proceedings were stood over to 17 November 2017, when it was indicated that the Attorney General intended to seek to intervene and that counsel had been briefed and would be ready to seek leave to appear as amicus curiae at a final hearing the following week.
Mr Kalache submitted that those circumstances nonetheless did not warrant any departure from the accepted usual position that a party in the position of Senior Constable Hughes would file a submitting appearance. He relied on the decision of the Court of Appeal in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 at [81] per Basten JA (Macfarlan JA agreeing at [85]) as follows:
In relation to matters arising in the Land and Environment Court, it will usually be a local council which, as consent authority, is required to determine whether it will take an active part in proceedings, and if so in what manner. However, where there is an issue as to the regularity of the administration of justice in a court or tribunal, the appropriate contravener may well be the Attorney-General and not the consent authority. If the Attorney does not wish to intervene, the Court may be left without a contravener. That, however, is not an obvious reason why the consent authority should take up that role in the absence of the Attorney-General.
Those remarks were concerned with the role of a decision-maker as respondent to a challenge to its own decision. Impartiality is paramount in that context. In the present case, that is the position of the Local Court which, as first defendant to the proceedings, filed a submitting appearance from the outset.
The position of the police officer is slightly different. As already noted, he accepts that he was disinterested in the substantive issue in the proceedings (the application for an order of prohibition against the Magistrate). However, as the police informant in the matter, he has a legitimate adversarial role in advocating for the timely prosecution of the criminal charges, particularly in circumstances where acts of domestic violence were alleged and the evidence of the complainant (Mr Kalache's ex-wife and the mother of their children) was part-heard. The lateness of the present application posed a threat to the orderly disposal of those proceedings. In my view, it was appropriate in the circumstances for the informant to take an active role in opposing a stay in circumstances where the plaintiff's conduct had forced urgency upon the defendants and this Court such that the stay application was sought upon the first return of the summons, before there had been any real opportunity for the Attorney General to be consulted as to whether to intervene.
It was submitted on behalf of Mr Kalache that the Crown Solicitor ought to have put those steps in train upon acceptance of service of the summons on behalf of the Local Court as first defendant. I do not think that ought to have been the duty of the Crown Solicitor in the circumstances. The difficulty arose from the fact that the defendants and the Court were ignorant of the prospect of any stay application until so close to the resumed hearing that it had become urgent.
The explanation for the delay was that Mr Kalache was waiting to receive the transcript of the proceedings in the Local Court, which had been ordered promptly but which was not available until 3 November 2017. That ought not to have prevented the more timely commencement of these proceedings or at least notice being given of Mr Kalache's intention to bring the proceedings: cf Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [4]-[5]. That is particularly so where those representing Mr Kalache in this Court were present when the conduct allegedly giving rise to an apprehension of bias occurred and had the benefit that day of having the relevant part of the recording played back. That was considered by those advising Mr Kalache to be a sufficient basis for requesting the Magistrate to disqualify himself. I see no reason why it should not be considered a sufficient basis for making the decision whether to commence these proceedings. Had that decision been made or foreshadowed earlier, it might still have been necessary to await the transcript for the purpose of the hearing but the need for an urgent stay application, and the consequent need for the second defendant to hold the fort while the Attorney General had an opportunity to consider whether to intervene, would have been obviated.
One consideration that might have militated against ordering Mr Kalache to pay costs is the fact that he was facing criminal charges. Had it been established that a costs order against Mr Kalache in proceedings relating to the determination of those charges might have undermined his capacity to defend the charges, the result on the present application may well have been different. However, I was informed that the criminal proceedings were resolved on 24 November 2017 by the acceptance of a plea and are now finalised.
For those reasons, I order the plaintiff to pay the second defendant's costs of the hearing before Hamill J on 16 and 17 November 2017 apart from the costs of the abandoned application to be released from the proceedings.
[2]
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Decision last updated: 13 December 2017