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[2025] NSWSC 542
General information, not legal advice.
Supreme Court of NSW
2025-05-29
Faulkner J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mikhaylova v Commissioner of New South Wales Police & Anor [2025] NSWSC 542
Hearing dates: 24 October 2024; 3 – 4 February 2025
Date of orders: 29 May 2025
Decision date: 29 May 2025
Jurisdiction: Common Law
Before: Faulkner J
Decision: (1) Pursuant to UCPR 59.10(3), time for the Plaintiff to file the Summons in these proceedings be extended to 6 May 2024.
(2) The Plaintiff’s Further Amended Summons filed on 23 June 2024 be dismissed.
(3) The Plaintiff pay the Defendant’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – decision of magistrate to reject application for professional costs under s 213 of the Criminal Procedure Act 1986 – application for judicial review under s 69 of the Supreme Court Act 1970 – no jurisdictional error – no error of law on the face of the record – Court’s residual discretion to decline relief – bad faith – improper purpose – disproportionality – application dismissed
Legislation Cited: Civil Liability Act 2005 (NSW), s 99
Civil Procedure Act 2005 (Cth), ss 56-60,
Crimes Act 1900 (NSW), ss 61, 317, 319
Criminal Procedure Act 1986 (NSW), ss 211, 212, 213, 214
Justices Act 1902 (NSW), s 41A
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Act 2005 (NSW), rr 42.1, 59.10
Cases Cited: BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354
Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282
Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
Escobar v Spindaleri (1986) 7 NSWLR 51
Hallaby v Harris [2020] NSWCA 12
Hallaby v Local Court of New South Wales [2019] NSWSC 840
Hermann v Charny [1976] 1 NSWLR 261
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kioa v West (1985) 159 CLR 550
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300; [2005] NSWCA 153
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292
O’Brien v Hutchison [2012] NSWSC 429
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2
Ottway v Jones [1955] 1 WLR 706
Pham v NRMA Insurance Ltd [2014] NSWCA 22
R v Castles (1894) 6 QLJ 94
R v Commissioners of Customs and Excise; Ex parte Cook [1970] 1 WLR 450
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SZQBN v Minister for Immigration and Citizenship (2013) 213 FCR 297; [2013] FCAFC 94
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29
Yoong v The Chief Executive of Medicare [2021] FCA 701
Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744
Category: Principal judgment
Parties: Natalia Mikhaylova (Plaintiff)
Commissioner of NSW Police (First Defendant)
Local Court of NSW (Second Defendant)
Representation: Counsel:
S Hoare (First Defendant)
Solicitors:
Crown Solicitors Office (First Defendant)
File Number(s): 2024/00170239
Before the Court are proceedings for judicial review of a decision by a magistrate to reject an application for a costs order under s 213 of the Criminal Procedure Act 1986 (NSW). The Magistrate heard and rejected the application at the conclusion of a trial at which two charges of assault were dismissed against the Plaintiff. After the close of the Crown case, the Magistrate dismissed the charges because his Honour found that there was no prima facie case against the Plaintiff.
There is no basis for the relief claimed by the Plaintiff and, in any event, relief ought to be declined in the exercise of the Court’s discretion.
As at 2021 the Plaintiff operated a business which included taking photographs of families and children, especially newborn babies.
The case arises out of an incident on 20 May 2021 which occurred at the Plaintiff’s photography studio in Sydney. Throughout the trial the Plaintiff often referred to the location as her home. It is not relevant to any issue before the Court whether the studio is attached to the Plaintiff’s home, located within the home or completely separate from it.
On the day in question a family arrived having previously booked to have photographs taken of their newborn baby. They arrived at the foyer of the building in which the studio was located. I will refer to the baby as Baby N and the mother as Ms N. The father, Mr N, his adult sister-in-law and a couple of other children were also in the foyer.
The N Family was late. They had booked for 9:00am but did not arrive until 9:30am, apparently hampered by traffic. When the Plaintiff met the N Family in the foyer there appears to have been an immediate dispute. To the extent the facts can be discerned, it seems that the dispute was about three adults attending when the Plaintiff would not permit more than two adults in her studio. The lack of punctuality may not have helped. The Plaintiff left the foyer but was soon persuaded to return. She then went up in the elevator with the N Family minus the sister-in-law. They went to the studio where the Plaintiff took some photographs. At some point Mr N took the other children away so that only the Plaintiff, Ms N and Baby N remained in the studio. More photographs were taken.
Another dispute ensued between the Plaintiff and Ms N. Whether it was a new dispute or an evolution of the earlier dispute does not matter.
Using her mobile telephone, Ms N started to make video recordings of the interaction. She ultimately made three video recordings. For some of the video recordings the telephone appears to have been located in Ms N’s pocket (or similar) so there are no images for those parts of the interaction. There is, however, audio.
The three video recordings were adduced into evidence as Exhibit F in these Supreme Court proceedings. They reveal an argument in which Ms N was complaining about the service being provided and the Plaintiff was asking Ms N to leave. Baby N cried intermittently throughout.
There is no dispute that for at least part of the interaction the Plaintiff had in her hand a spray bottle containing a cleaning product. There is no video footage of the Plaintiff actually spraying Baby N, but amongst everything else that was said the following words are recorded:
Plaintiff: “I’m going to spray cleaning stuff on your baby so that you leave.”
And:
Ms N: “You’re going to spray on my baby?”
Plaintiff: “Yes.”
And:
Plaintiff: “I’m going to spray your baby. Can you leave now?”
And:
Plaintiff: “I’m going to spray.”
(mobile telephone shaken)
Ms N: “You sprayed on my baby!”
Plaintiff: “Yes. You have to leave.”
And:
Ms N: “You’re going to spray it again?”
Plaintiff: “Yeah.”
Ms N was already unhappy with the Plaintiff by the time the first recording began. This is apparent not only from the tone of her voice but also the fact that she thought it was appropriate to start recording the interaction. At one point in the confrontation (indicated above), the footage from the mobile telephone is suddenly shaken. From that point onwards the women stop talking about the prospect of Baby N being sprayed and start talking in the past tense about Baby N having been sprayed. An element of distress that was not previously present entered Ms N’s voice.
Subsequently, with incredulity in her voice, Ms N twice said to the Plaintiff:
“How can you spray cleaning solution on the baby?”
Ms N immediately made a report to the police. The police watched and listened to the three video recordings.
On the afternoon of 20 May 2021 the Plaintiff gave an interview at the police station. There is a video recording of the interview in which, amongst other things, the following words are recorded:
Constable: “There is an allegation to say that you were threatening to spray the baby with a chemical spray.”
Plaintiff: “No.”
And:
Constable: “Did you say ‘I will spray the baby if you do not leave’?”
Plaintiff: “No.”
At the conclusion of the interview, the police constable informed the Plaintiff that there was a recording of the encounter and asked the Plaintiff if she wanted to say anything else in light of that information. The Plaintiff said “no”.
As at that point, the state of the police’s knowledge was that the Plaintiff’s statements to them were directly contradicted by the contemporaneous video recordings and that the Plaintiff had adhered to her incorrect statements even after she had been told there was a recording.
On 23 May 2021 the police charged the Plaintiff with two counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The victims of the alleged assaults were Ms N and Baby N. Each assault was said to have been constituted by the Plaintiff spraying the victim with cleaning solution.
The police prepared a Facts Sheet for the charges. The Facts Sheet included some of the dialogue that is referred to above and evidenced by the video recordings made by Ms N. The Facts Sheet stated:
“Police have observed the footage of the incident and can see the point where the accused sprayed both the victims with the cleaning product.”
“The reason why I stopped the legal representation was made by the police not due to my own actions. So firstly I had no money because I was made unemployable for several years, and; secondly the lawyers didn't want to run cross‑examination based on that tampered video so my lawyer told me to plead guilty because he didn't want to run the cross‑examination so I had no choice to represent myself.”
It is clear from the evidence that there was a disagreement between the Plaintiff and her lawyers about the “tampered video”. As explained below, the lawyers’ unwillingness to conduct the defence based on a “tampered video” is understandable given their duties to the Court and their own ethical standards.
The Plaintiff pleaded not guilty to the assault charges. The case proceeded to a hearing in the Local Court which commenced on 7 November 2022. The Plaintiff represented herself at the hearing.
At the outset it is necessary to say something about the Plaintiff’s English language skills. I listened to the Plaintiff doing the lion’s share of the talking over the three days of the hearing before me. I listened to her talk to Ms N in the video recordings of the original incident. The evidence also contains video recordings of two occasions when the Plaintiff engaged in conversations with police officers, including the interview on the afternoon of 20 May 2021. From these observations, including the video recordings of the Plaintiff’s communications with Ms N and the police on the day of the original incident, the Plaintiff’s spoken English is fairly described as excellent. It is true that she has an accent. She did not recognise the figure of speech “snatch defeat from the jaws of victory” but generally her English is close to flawless. She speaks fluently and at a fast pace. She does not hesitate. Her speech is not interrupted by pauses which sometimes occur when the speaker is mentally searching for a word which is not in his or her first language. Before me she rarely exhibited any signs of incomprehension, and certainly no more than any other litigant in person. During the hearing she made seamless use of a full English vocabulary with appropriate accuracy and clarity. Without pause she used words and phrases such as “videography”, “forensic report”, “breach of natural justice”, “employability”, “subpoenaed material”, “psychologically”, “manipulated”, “addendum”, “errant”, “illegitimacy”, “metadata”, “applicability”, “consequential extensions to timetable”, “unannotated”, “res judicata” and “estoppel”.
The evidence also includes a video recording of the Plaintiff going to a police station to report an assault on her by Ms N. With perfect fluency and in the appropriate context the Plaintiff used the words “perjury”, “affidavit”, “prima facie”, “common assault”, “malicious prosecution” and “charged”.
My conclusion about the Plaintiff’s English skills is supported by a review of the transcript of the three hearing days before the Local Court. At the end of the second day of the trial the Magistrate observed that “your English is perfect”. My conclusion is also supported by the evidence of the police prosecutor at the Plaintiff’s Local Court trial who stated in his Affidavit:
“It is in my recollection that the plaintiff conducted proceedings on her own behalf. I did not have the impression that she was limited in the way that she did so by reason of her level of English, which I perceived to be good.”
The Plaintiff does not need, and at no time during the hearing before the Magistrate or as at the date of the original incident did she need, a translator. She does not need someone to translate English words into a foreign language or vice versa.
She said on a number of occasions that she did not understand the meaning of technical legal words such as “charge”. Without accepting the truth of any such statement, the Plaintiff was simply referring to her understanding of legal concepts and the words used to describe them. Like any lay person dealing with a profession (not just the legal profession) the Plaintiff might in theory have been assisted by explanations of process and the meaning of some technical words. In this respect she was no different to any other self-represented litigant. Any difficulty the Plaintiff had in comprehending the case (and I do not accept that there was any material difficulty) would have been resolved by a lawyer, not a translator.
It is also necessary to say something about the Plaintiff’s behaviour in Court. These observations are necessary because they provide important context for statements subsequently made by the Magistrate during the costs application.
The Plaintiff is an intelligent and articulate person. Not only does she speak very rapidly, she speaks very forcefully. A review of the transcript of the three hearing days before the Magistrate makes clear that his Honour experienced the same difficulties which I experienced during the three hearing days in this Court. The Plaintiff regularly spoke over the top of the Magistrate. When questioned by the Magistrate about a relevant issue, she often did not respond or she moved to an unrelated topic. There may have been a connection between those topics in the Plaintiff’s mind but any such connection was not always apparent to the Magistrate nor, indeed, someone subsequently reading the transcript. It was very difficult for the Magistrate to say what his Honour wished to say in order to conduct the trial properly. It was often difficult for the Magistrate to attend to routine and conventionally uncontroversial tasks like trying to get the AVL link to work for the next witness. By way of example:
HIS HONOUR: “Just a moment. Can the officer-in-charge hear?”
PROSECUTOR: “No, she’s on mute.”
HIS HONOUR: “Well, she should be able to.”
ACCUSED: “I didn’t allow her to appear via a video.”
HIS HONOUR: “Just wait. Was there previous approval for the officer-in-charge to appear by AVL, was there?
PROSECUTOR: “As I understand.”
ACCUSED: “She has hidden my paperwork.”
HIS HONOUR: “Stop.”
ACCUSED: “She has misled the Court.”
HIS HONOUR: “Just wait.”
In this extract, the Plaintiff raised in succession three matters about the officer-in-charge, two of them very serious. It was impossible for the Magistrate to address or consider any of the three matters while he was attempting to establish the AVL link so that the officer-in-charge could commence her evidence. There was no occasion for the Plaintiff to start talking. The Plaintiff twice ignored the Magistrate (“just wait”; “stop”). This example is typical of the Plaintiff’s conduct throughout both the trial before the Magistrate and the hearing before me.
Throughout both the trial before the Magistrate and the hearing before me, the Plaintiff generally did not refer to primary facts but rather she referred to her own analysis of facts combined with other matters not clearly identified or otherwise comprehensible.
The Plaintiff consistently said “there is evidence” about something, which often meant no more than that the Plaintiff had a personal recollection or was assuming that some conclusion could be drawn from matters not explained nor even identified and certainly not proved before the Court. The Plaintiff wove into her statements assertions unsupported by evidence as if they were self-evident facts.
The Plaintiff was also willing to make the most serious allegations without the slightest basis in fact. She asserted before the Magistrate that she was the victim of a “planned” attack by Ms N. During the hearing in this Court she accused the Magistrate of lying during the trial. She stated that a named police officer tampered with evidence in order to lay two charges instead of one and thereby advance their career.
The difficulties confronted by the Magistrate were alluded to in the following statement which his Honour made as he strove to pronounce the dismissal of the case against the Plaintiff amidst her repeated interruptions with statements including “the video is fake”. His Honour said:
“…all right, no. Just sit down. Again, you’ve got no idea – you know, when I read through the transcript – the difficulties you’ve created, and your inability to follow the Court lead makes it very difficult, and it’s prolonged this matter significantly.”
The prolongation of the Local Court trial was repeated in this Court. Properly argued, it was a half-day case. The Plaintiff represented herself and some delay was inevitable. However, compared to other self-represented litigants, the Plaintiff’s conduct was very time consuming. She had a lot to say and was repetitious. Her arguments lacked logic and were often based on unspoken premises. It was necessary to ask questions in an attempt to understand, yet she was seldom responsive in her answers.
The foregoing is intended to give a real-world understanding of the Plaintiff’s conduct. As I have said, these matters are essential context for understanding the subsequent costs application the Plaintiff made to the Magistrate.
On the first day, the Local Court trial commenced with evidence from the police constable who conducted the interview with the Plaintiff on 20 May 2021. The Plaintiff cross-examined the constable.
Next, Ms N gave her evidence in chief during which the prosecutor tendered the video recordings made by Ms N at the time of the alleged assaults. The Plaintiff objected to the tender on two bases.
First, the Plaintiff said that the video recordings had been modified. When asked to explain the objection, the Plaintiff made a number of statements and responded to (but did not generally answer) questions from the Magistrate.
From the transcript, it is very difficult to understand the Plaintiff’s line of reasoning, even with the benefit of the Plaintiff’s submissions in this Court, both written and oral. As best as can be deduced, the Plaintiff’s argument was that the tendered video recordings were “slightly different” to a recording the Plaintiff said she had previously seen at the police station. The difference was not specified. She told the Magistrate that she did not have the version she had previously seen, that she was relying on her memory and that she did not have any evidence of modification. The Magistrate did not expressly overrule the first objection, but his Honour did not call on the prosecutor to respond and moved to the second objection. From the Magistrate’s decision ultimately to admit the video recordings into evidence, it is clear that his Honour was not satisfied that the video recordings had been modified. Given the Plaintiff’s acceptance that she had no evidence of modification, the Magistrate’s approach was unremarkable.
Two matters should be noted. By the time the Plaintiff made this objection she had already cross-examined the relevant police officer. The cross-examination was unsatisfactory, but it was not put to the police officer that they had modified the video recordings. Secondly, after this initial objection the Plaintiff returned to the video recordings a number of times, including during her costs application and in the proceedings before this Court. Her complaint about the video recordings evolved from that originally articulated to the Magistrate.
Secondly, the Plaintiff objected to the video recordings being adduced into evidence because Ms N had made the video recordings in contravention of the Surveillance Devices Act 2007 (NSW). Although there was no proper basis for this allegation, it led to a major delay. The Magistrate had to investigate the circumstances in which Ms N came to make the video recordings in the Plaintiff’s studio. The Magistrate held a voir dire during which evidence was given by Ms N (who was cross-examined by the Plaintiff) and then by the Plaintiff herself. The Plaintiff asserted that she did not invite the N Family into her studio and that they pushed their way in. She did accept, however, that after they were in the studio she took 54 photographs of them, including photographs of the whole family, photographs of Ms N, Mr N and Baby N, photographs of the children and photographs of Baby N alone (in five different poses wearing variously white, sky blue and finally a sort of dark blue cloak whilst lying in a straw basket). Having heard the evidence, the Magistrate found that Ms N and her family did not push or force their way into the studio but were there with the express or implied consent of the Plaintiff. His Honour found that making the video recordings was reasonably necessary for the protection of the lawful interests of Ms N. The Surveillance Devices Act 2007 had not been contravened. The Magistrate overruled the second objection and gave approximately three pages of reasons which included findings of fact about the circumstances in which the video recordings had been made. The video recordings were then admitted into evidence.
When the trial resumed after the voir dire, the Plaintiff continued to cross-examine Ms N. She had not finished by the end of the first day, so the trial was adjourned part heard to 7 June 2023. On that day the Crown’s evidence was completed and the Crown closed its case. The prosecuting officer then suffered a medical episode and was unable to continue. The trial was adjourned part heard to 3 November 2023.
Upon resumption, the Magistrate raised with the prosecutor whether the Crown had adduced sufficient evidence to make good the charges. The Magistrate found that there was no evidence (or no satisfactory evidence) that once expelled from the spray bottle the droplets of cleaning solution alighted on the skin of either Ms N or Baby N. The Crown accepted that that was an essential element of the charges. Hence, there was no prima facie case for the Plaintiff to answer.
The Magistrate found the Plaintiff not guilty of both charges and dismissed them.
The Plaintiff then asked to present her case. The Magistrate said it was unnecessary because the charges had been dismissed. The Plaintiff insisted. Using the word “stop”, the Magistrate refused.
The Plaintiff then moved directly to make an application for costs. The Magistrate heard the application. His Honour asked the Plaintiff which provision she was relying on in the Criminal Procedure Act 1986 and the Plaintiff referred to s 213.
Chapter 4 of the Criminal Procedure Act 1986 provides for summary procedure, within which Division 4 relates to costs. The relevant provisions are as follows:
211 Definition
professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.
…
212 When costs may be awarded
(1) A court may award costs in criminal proceedings only in accordance with this Act.
(2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967
213 When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.
(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because—
(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or
(b) the matter is withdrawn or the proceedings are for any reason invalid.
…
(5) The order must specify the amount of professional costs payable.
214 Limit on award of professional costs to accused person against prosecutor acting in public capacity
(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following—
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.
(3) A person who, under the Prevention of Cruelty to Animals Act 1979, is an appointed officer employed by an approved charitable organisation is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9(1) of the Veterinary Practice Act 2003.
By virtue of the definition of “professional costs” in s 211, Division 4 does not include all costs. It does not include non-professional costs, such as a litigant acting for him or herself: Wang v Farkas (2014) 85 NSWLR 390 at 395–396; [2014] NSWCA 29 at [21] (Basten JA, with whom Bathurst CJ and Beazley P agreed).
The structure of Division 4 should be understood. The Magistrate had no power to order the prosecutor to pay for the Plaintiff’s professional costs other than the power set out in s 213(1). Section 214(1) provides that the Magistrate could only use the s 213(1) power if one or more of the four specified circumstances was established to the satisfaction of the Magistrate. Section 214(1) is a strict limitation on the Magistrate’s power to award costs. It was inserted by Parliament soon after the High Court held that without such a limitation it would not ordinarily be just or reasonable to deprive a person of an order for costs against whom criminal charges had been dismissed (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ)). As explained by Emmett AJA in Hallaby v Local Court of New South Wales [2019] NSWSC 840 at [35]-[36], the new restriction in s 214(1) means that the approach taken by the High Court in Latoudis v Casey no longer applies. I emphasise this matter because the Plaintiff repeatedly referred to Latoudis v Casey in her submissions about her entitlement to a costs order.
In conformity with the structure of Division 4, the Magistrate asked the Plaintiff which provision or provisions of s 214(1) were relied upon for her costs claim. She specified s 214(1)(a) and s 214(1)(c).
A review of the transcript shows thereafter a structured approach by the Magistrate to the application. His Honour first considered the nature and quantum of the costs being claimed and then considered whether his Honour could be satisfied about either of the circumstances specified in s 214(1)(a) or s 214(1)(c).
“Yeah, sure, that’s the costs of the application, thank you. All evidence, thank you.”
“Related to business [loss] due to psychological trauma for three years and also my medical costs.” [1]
The bundle included twelve unsigned tax invoices dated between 29 May 2021 and 29 August 2023 from Christopher Hunt for “Expert Translator’s/Language Refinement Specialist Services”. The total of these invoices was $34,200 (not including GST). Something further needs to be said about these costs later. For current purposes, the Magistrate saw these invoices but did not give them any real consideration.
There were other documents in the bundle handed to the Magistrate, possibly primary documents, the identity of which is not proved in this Court. As noted above, there appears also to have been some kind of summary document (“spreadsheet”). The Magistrate could not reconcile the summary with the other documents in the bundle.
It is clear from the transcript when read in light of the evidence before the Court in these proceedings that no documents were handed to the Magistrate which proved that the Plaintiff had incurred any legal costs. After all, she was self-represented. The Magistrate specifically asked the Plaintiff for copies of invoices from lawyers. The Plaintiff told the Magistrate that she originally had a solicitor but that he had ceased to act. The Plaintiff did not have copies of any invoices, although she had one “on” her computer. The Magistrate invited the Plaintiff to hand up her computer, on which his Honour evidently saw a copy of a tax invoice dated 8 October 2021 from Ting Legal for $1,980 in respect of work on the charges against the Plaintiff. The tax invoice was unsigned. There was no evidence before the Magistrate that it had been paid.
The Magistrate observed that the Plaintiff’s summary document had a total of $4,331 for legal costs. The Magistrate asked for more invoices from lawyers. In a wholly unsatisfactory part of the case, the Plaintiff made a number of largely incomprehensible and contradictory statements including:
“I can ask him to send me the invoices. I don’t think he sends me invoices. There was a trust conversation. It was the verbal invoices he would send be. But that’s how much I paid him.”
At one stage the Plaintiff asked the Magistrate “would the text message be appropriate for the invoices?”
The evidence before this Court (but not before the Magistrate) shows that at 10:37am on 3 November 2024 the Plaintiff sent a text message to “Jimmy Lawyer” and asked him to “send me all your invoices now please”. Jimmy Lawyer replied that he couldn’t because he was in Court. On 6 November 2024, by which date the Plaintiff’s application for costs had been dismissed, the Plaintiff sent another text to Jimmy Lawyer in which she stated:
“If you could please email your invoices. I paid $4331.25 and only can find 1 invoice.”
Later on 6 November 2023 the Plaintiff sent an email to Ting Legal requesting that they send her five invoices “for all payments I have made to your account”. The Plaintiff also asked for five receipts and warned Ting Legal that it is an offence under s 100 of the Australian Consumer Law 2010 (Cth) not to issue receipts.
In this Court the Plaintiff adduced into evidence a bundle of five tax invoices from Ting Legal dated 24 May 2021, 10 June 2021, 17 August 2021, 8 October 2021 and 18 October 2021 for total fees of $3,300. None of the tax invoices is signed. There is also a costs disclosure and costs agreement dated 8 October 2021 signed both by the Plaintiff and Lee Wee Ting. There is also a signed fee note dated 8 October 2021 from counsel to Ting Legal in respect of work on the Plaintiff’s case. The fee note is for $1,031.25, which gives a total of $4,331.25 when added to the five (unsigned) tax invoices from Ting Legal.
In summary, when the Magistrate heard the costs application on 3 November 2023 there was no evidence before his Honour that any legal costs had been incurred, unless the Magistrate’s willingness to inspect the Plaintiff’s computer is taken to be evidence, and then only as to $1,980. As already noted, there was no evidence that any legal costs had been paid (including the $1,980). To the Magistrate’s knowledge, the Plaintiff had been unrepresented throughout the three days of the trial before his Honour.
Throughout her application before the Magistrate, the Plaintiff repeatedly referred to a number of matters which were irrelevant to her application for costs. She referred to being a victim of common assault, receiving an injury to her hand, her loss of business, psychological trauma, sickness, medical certificates, her family, the fact that she was herself a witness and the police’s refusal to charge Ms N. I do not set out all the things said by the Plaintiff about these matters. When asked by the Magistrate about costs relating to professional expenses and disbursement, including witness expenses, the Plaintiff persistently referred to these other matters. The Plaintiff’s approach made it difficult for the Magistrate to understand the Plaintiff’s case in relation to costs.
Assuming there were some professional costs, the Magistrate then considered whether there were grounds for a costs order by reference to s 214(1) of the Criminal Procedure Act 1986.
As the Plaintiff was relying on s 214(1)(a) and s 214(1)(c), she had to prove either that the investigation into the alleged assaults was conducted in an unreasonable or improper manner or that the prosecutor failed to investigate a particular matter. The Magistrate first inquired into the evidence relied upon by the Plaintiff. The following exchange occurred:
HIS HONOUR: “… What material do you have that goes to the grounds you are relying upon under 214[(1)(a) and (1)(c)]? Do you have any material you with to hand up that’s relevant to that?”
ACCUSED: “No more material, your Honour.”
HIS HONOUR: “Why do you say that the material before the Court shows the investigation was conducted in an unreasonably or improper manner or the prosecution unreasonably failed to investigate any relevant matter?”
ACCUSED: “That’s right, because I have most – many documents to prove that most of the statements were incorrect. So, false. Including the video evidence.”
HIS HONOUR: “You have statements to prove—”
ACCUSED: “Well, I have the documents to prove that most of the statements were incorrect.”
This passage demonstrates the difficult task the Magistrate had to perform in order to determine the Plaintiff’s costs application. The Magistrate’s question was clear and appropriately directed. The Plaintiff initially said there was no material, but then said that she “had” many documents. The Magistrate made further enquiries in an attempt to clarify the Plaintiff’s position.
The Plaintiff eventually handed up a 27 page document of closely-typed text about “all the discrepancies that the police officer has provided”. The document, which is in the nature of a submission, commences with the following text:
“Accused Victim’s Statement – Event May 2021 – Baby Photography Australia – secluded Sydney studio
Reverse Case about Opposites, Consumer / Provider relationship, Uncontrolled Anger
And an impact of personal Believes of Consumer Rights
Incompatible with an Australian Consumer Law and Australian Criminal Law
on Multilingual community During COVID Pandemic
And an
Evidence Perjury and a Planned Attack presented as Self-Defence to the Audience and concealed by police with Deliberate Lies and Modified (Tampered with) video evidence.
Opposites presented:
Happy-Frustrated; Left-Right; Self-defence-Planned attack’ Victim-Offender; Safe – Dangerous; Scared – Aggressive”
75 paragraphs follow, each of which appears to be a separate argument as to why the Plaintiff did not assault Ms N or Baby N. Each paragraph refers to some document or other matter. The following are some typical examples:
Paragraph 1 states:
“Consumer [Ms N] has purchased a maternity and baby photoshoot package with booking deposit online in March 2021.
Consumer became aware and agreed that wrapping service that consumer will unlawfully demand on the day of Event is NOT included into the package she had purchased. Referring to deliberate lie police officer had provided in her statement having the evidence of the Opposite that “wrapping is a part of the service” deliberately providing a false description of me as an unprofessional individual not providing purchased services to a customer and therefore, I have deserved to be assaulted.
Evidence – order confirmation and PayPal receipt. Removing phrase “wrapping is a part of the service” from the statement.”
“Consumer has breached the agreed TC (p6) by notifying the provider of her baby’s arrival 12 days after the birth, failing to provide sufficient notice within 48 hours from birth as agreed and as required. This left no time for the company to schedule her newborn session before the baby turned 14 days old, which is the deadline for newborn photography due to the baby’s development and reason for the low package cost as per agreed TC.
Evidence – late e-mail notification request to schedule baby session Hidden facts adding to the statement”
“Provider COULD NOT POSSIBLY AVOID cleaning her equipment AT THAT EXACT TIME (evident). NOONE has the right to place a newborn baby into the gems of a dirty toilet especially during COVID pandemic. Newborn photographer did NO Have a right to place a newborn baby into the gems of another baby’s dirty nappies germs. Hidden fact adding to the statement.”
These examples are typical of the paragraphs in the Plaintiff’s document.
Topics referred to in the Plaintiff’s document include the services pre-booked by the N Family, the Plaintiff’s terms and conditions, Ms N’s knowledge that the fire door was not locked, inconvenience to the Plaintiff’s children from a 9:00am photoshoot, the N Family’s failure to arrive on time, who was smiling in the foyer CCTV footage, the number of photographs taken, a lost email about baby preparation, the number of adults in the N Family’s group, the props to be used in the photographs, the Plaintiff’s inability to call the police because of the response she had received on previous occasions, whether the “floral wreath” was a suitable prop for a baby which was awake, hygiene standards and the time necessary to clean the change mat. The Plaintiff’s document also makes statements about the knowledge of the police and the dishonesty of the police.
On page 22 of the document, the following text appears:
“Evident False and Misleading information (deliberate lies) both police officer and an offender has confirmed to help an Offender conceal the crime of an intentional avoidable physical assault and perjury she has committed and to avoid criminal charges:”
“Consumer is an OFFENDER who has planned, waited and has deliberately committed a crime of an intentional avoidable physical assault, intimidation and perjury to satisfy her uncontrolled anger towards Provider for not receiving unpurchased extra services she has demanded for not tolerating Consumers crime of intimidation.”
The Plaintiff did not direct the Magistrate to any particular part of this 27 page document.
The Magistrate reviewed the document to get “a flavour”. The evidence does not reveal how long the Magistrate spent reviewing the document, although his Honour read onto the transcript the text at the top of page 22 (see [76] above). It may be inferred that at the very least his Honour worked through a significant part of the document. In any event, a high level review of the document is more than enough to make clear that the document was incapable of proving or demonstrating that the police investigation was conducted in an unreasonable or improper manner, or that the prosecutor unreasonably failed to investigate (or investigate properly) any relevant matter. The document is a catalogue of argumentative complaints. A lot of the text is incomprehensible. The document was evidently dependent on a complicated and dense factual matrix which was without any evidential foundation before the Magistrate.
Having reviewed the 27 page document, the Magistrate asked the Plaintiff if there was anything else she wanted to say to support her costs application. The Plaintiff said:
“Yes. The video evidence is a fake, as police officer has confirmed in writing, she has admitted manipulating the video evidence.”
“Hi Natalia,
I don’t have the three videos.
I have one, that I obtained from the victim on the day the incident occurred at the time the report was made. Which is the same video that was served to you in your brief of evidence, the only difference is you received an audio copy as you are self-representing.
If you wish to view the footage you may attend Maroubra Police Station with Sergeant NICHOLS from 6:00pm tonight and Friday night as previously indicated to you.
Kind regards,”
The Plaintiff’s submission, initially made to the Magistrate and repeated in this Court, is that making an “audio copy” to send to the Plaintiff was “tampering with” and “manipulating” the video. The police officer’s email was therefore said to be an admission not just of the fact that an audio copy had been made but also of the fraudulent characterisation the Plaintiff attributes to the act.
The Magistrate did not accept that the email contained an admission by the police officer.
The Magistrate then proceeded to determine the costs application. His Honour stated that he had read the material and had heard “enough”. His Honour gave reasons. First he addressed the quantum of the claim, observing that the Plaintiff had one invoice for $1,980 but had claimed $4,331 in her spreadsheet. His Honour then considered the requirements of s 214(1)(a) and s 214(1)(c) of the Criminal Procedure Act 1986. His Honour described the Plaintiff’s allegation about tampering with the video evidence as “yet another wild and false allegation against the officer-in-charge not substantiated in any way.” The Magistrate referred to Ms N’s complaint to the police and her provision of contemporaneous video evidence. With apparent approval, the Magistrate said that the police acted on that evidence and that the fact that Ms N’s evidence did not come up to scratch at trial does not mean that the police were not entitled to bring the case. The Magistrate said there was no evidence that the investigation was conducted in an unreasonable or improper manner or that the prosecutor unreasonably failed to investigate (or investigate properly) any relevant matter.
The Magistrate dismissed the Plaintiff’s costs application.
To be perfectly clear, apart from dismissing the costs application the only other orders made by the Magistrate were to dismiss the charges against the Plaintiff and enter verdicts of not guilty in her favour.
The only other matter to observe is that after 3 November 2023 the Plaintiff has assembled further evidence which she says shows that:
the metadata for the copy of the video recordings adduced into evidence at the Local Court trial was prepared on 23 May 2021 (not contemporaneous but three days after the incident); and
when compared with the originals, there is some duplication of frames in the video recording adduced into evidence.
Obviously, this evidence was not before the Magistrate on 3 November 2023.
These proceedings were commenced by a Summons filed on 6 May 2024.
Under UCPR 59.10(1), the Plaintiff was required to commence these proceedings within three months of the decision for which judicial review is sought. The Magistrate’s decision to dismiss the Plaintiff’s costs application was made on 3 November 2023, which means the last day for commencement of these proceedings was 2 February 2024.
The Court may extend time for commencement under UCPR 59.10(2) but the Plaintiff has not made an application for the extension of time. The Defendant has submitted that were such an application to be made it ought to be rejected because the Plaintiff’s arguments are futile.
There are other reasons why there ought be no extension of time in this case. Apart from the Court’s general reluctance to extend time to appeal against a decision which relates only to costs (Ottway v Jones [1955] 1 WLR 706 at 709; Hermann v Charny [1976] 1 NSWLR 261 at 268), all of the factors listed for consideration by the Court in UCPR 59.10(3) weigh against an extension of time. Whatever the Plaintiff may subjectively view as her interest in challenging the Magistrate’s decision, the fact is that she has no interest other than her claim for costs of less than $4,331 and possibly nil. The prejudice from delay is limited. The Plaintiff was immediately aware of the Magistrate’s decision because she was present in Court when his Honour pronounced it on 3 November 2023. There is a strong public interest against the Plaintiff receiving an indulgence to facilitate her challenge a costs decision of this nature.
In exercising its discretion to grant or refuse an extension of time, the Court must seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings in accordance with ss 56-50 of the Civil Procedure Act 2005. Of particular relevance in this case is the requirement in s 60 that the practice and procedure of the Court be implemented with the object of resolving the issues between the parties in such a way that the costs the parties incur is proportionate to the importance and complexity of the subject-matter in dispute. For a case about money of the magnitude referred to above, a one day hearing in the Supreme Court is likely to be disproportionate, let alone the three days’ ultimately required, especially when the Plaintiff has assembled an extensive array of documentation and arguments not generally relevant to the question of costs under s 213 of the Criminal Procedure Act 1986.
Nonetheless, the Defendant did not raise the competency of the proceedings until relatively late in the piece by which time much of the prejudice which might otherwise have been avoided by a timely application had already been suffered. Having heard the case and despite the merit of the Defendants’ arguments on this point, the just, quick and cheap approach to the resolution of the real issues in the proceedings is to grant the Plaintiff an extension of time for filing her Summons until 6 May 2024.
The Plaintiff’s summonses underwent a number of amendments in rapid succession. By Further Amended Summons filed on 23 June 2024, these proceedings are ultimately brought under s 69 of the Supreme Court Act 1970 (NSW).
The Plaintiff seeks an order quashing the decision of the Magistrate to dismiss her costs application.
She also seeks an order that:
“[H]er application for costs be remitted to the Local Court to be determined according to law along with an application to acknowledge the original proceedings as invalid due to the lack of any valid material and to comply with statute. This is essential to support the restoration of the plaintiff's clear criminal record and life normality, as the last available option is left in the Local Court.”
“[P]arty-party costs compensated to the accused in the reduced amount of $99,111.66 plus post-judgment interest since 20th May 2021”.
Some particulars are given for the claimed costs, including “translator fees”.
The Plaintiff seeks other relief such as “the ability to report a crime she has become a victim of”.
The Plaintiff also seeks an order that the Defendant pay her costs of the Supreme Court proceedings under UCPR 42.1.
The Plaintiff relies on nine grounds of appeal which are set out in the Further Amended Summons. Using the Plaintiff’s numbering and with some paraphrase, the grounds are:
the Magistrate denied the Plaintiff an opportunity to present evidence supporting her costs application;
the Magistrate denied the Plaintiff the opportunity to speak in support of her costs application;
the Magistrate failed to consider mandatory relevant considerations, the relevant consideration being identified as “a police interview video”;
the Magistrate applied an incorrect statutory test by “focusing on the complainant’s credibility during the proceedings rather than the police officer’s awareness of all relevant facts before laying charges”;
the Magistrate refused to admit evidence of false material fabricated by the police, which evidence is identified as “file’s metadata revealing date of file’s creation”;
the Magistrate failed to provide adequate reasons;
the Magistrate’s dismissal of the Plaintiff’s costs application was legally unreasonable;
the Magistrate failed to afford procedural fairness for two reasons:
(a) his Honour failed to order compliance with “a” subpoena submitted by the Plaintiff’s lawyer before the proceedings; and (b) failure to order a Russian translator for the last day of the trial; and
Relief under s 69 will only be available if the Plaintiff demonstrates that the Magistrate’s dismissal of the costs application is infected by jurisdictional error or an error of law on the face of the record: O’Brien v Hutchison [2012] NSWSC 429 at [4] (Beech-Jones J). The Magistrate’s dismissal of the Plaintiff’s costs application under s 213 is to be viewed as the ultimate determination of the costs application and therefore the face of the record includes the Magistrate’s reasons: s 69(4); BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354 at [160]–[165] (Faulkner J).
In the context of an application for review from a decision under ss 213 and 214 of the Criminal Procedure Act 1986, Emmett AJA said in Hallaby v Local Court of New South Wales [2019] NSWSC 840 at [55]:
“Where the outcome of proceedings turns upon the acceptance by the Court of a particular construction of statutory provisions, and then applying the provisions, as so interpreted, to the facts of a particular case, despite the fact that the prosecutor instituted the proceedings on the basis of a construction that was rejected by the Court, it will not necessarily follow that the proceedings were instituted without reasonable cause. Failure by an inferior court to take into account a matter that it was, as a matter of law, required to take into account in determining a question within jurisdiction, or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question, will not ordinarily involve jurisdictional error. There will be jurisdictional error only if it can be demonstrated that the inferior court took into account an irrelevant matter or failed to take into account a relevant matter because the court misconstrued a limit on its power. On the other hand, the failure to take into account a relevant matter or the taking into account of an irrelevant matter might constitute an error of law on the face of the record even if it does not constitute jurisdictional error. However, it must be possible to demonstrate the error to be apparent on the face of the record and not by pointing to a wider set of materials.”
The Plaintiff bears the onus of demonstrating that a reviewable error has been made: Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [15] (Macfarlan JA).
To make good the original claim for costs, the Plaintiff bore the onus of establishing one of the four circumstances specified in s 214(1). The four circumstances are not specified by reference to the existence of an objective fact. Rather they are defined by reference to the Magistrate being satisfied about the specified circumstance. It is not for this Court now to determine whether it is satisfied about one or more of the specified circumstances. This Court is instead required to inquire whether the Magistrate, in failing to be so satisfied, failed to ask the right question or misconceived the legal limits of the specified circumstances. Only in limited circumstances will an error of law arise where a magistrate fails to be satisfied of a matter about which the plaintiff bears the onus of proof: Hallaby v Harris [2020] NSWCA 12 at [12] (Basten & McCallum JJA).
Prior to the hearing, the Plaintiff produced a number of documents which had various titles but were mostly in the nature of arguments. Some of the documents are lengthy. For the most part these documents contain a stream of assertions about the underlying issue of whether the Plaintiff assaulted Ms N and Baby N. There are numerous assertions about the Plaintiff’s perception of statements alleged or supposed to have been made by police and the deliberate falsity of the statements. Even on the underlying issues, the magnitude of material produced by the Plaintiff is most noteworthy for the fact that it does not squarely address this single circumstance: that Ms N’s video recordings, which are described above, depict (aurally in the main part) the Plaintiff threatening to and then spraying Baby N, and the Plaintiff then attended a police interview in which she is recorded by body worn video as denying it. Instead, the Plaintiff addresses at length and in minute detail a host of irrelevant peripheral facts from which she argues that she could not have sprayed Baby N, such as the fact that Ms N did not run away, the distance from Ms N to the fire door, the fire door being unlocked, the terms of the Plaintiff’s public liability insurance which did not cover the Plaintiff for assaulting her customer, the propensity of babies to cry when being photographed, whether the Plaintiff held her own mobile telephone in her left or right hand and regulations about sanitary standards for baby change mats.
The Plaintiff has put forward nine grounds for the relief she seeks. Her submissions do not generally address the grounds much less explain why the grounds have been made out. The Plaintiff’s written material does not generally throw light on the issues before the Court in these proceedings. Her oral submissions were the same.
The most convenient way to address the grounds put forward by the Plaintiff is to address them in an order and arrangement which reflects a logical application of the relevant principles.
The Plaintiff has not given any explanation for Ground 4 other than what is apparent in the text of the ground itself. The contention appears to be that the Magistrate rejected the costs application not by reference to any of the four specified circumstances in s 214 but by reference to the Plaintiff’s “credibility” during the proceedings before the Local Court.
The relevant provisions of Division 4 of Chapter 4 of the Criminal Procedure Act 1986 are set out above. As noted above, the four circumstances specified in s 214(1) are defined not by reference to objective facts but by reference to the Magistrate’s satisfaction. Before the Magistrate, the Plaintiff relied upon s 214(1)(a) and s 214(1)(c).
Ground 4 has to be rejected. It does not fairly summarise the process of reasoning adopted by the Magistrate. The transcript shows that the Magistrate commenced hearing the Plaintiff’s costs application by identifying the precise circumstances relied upon by the Plaintiff in s 214(1). By doing so his Honour ensured that he was considering the correct statutory question. Once identified, his Honour asked the Plaintiff to identify the “material” relied upon for the purposes of s 214. Originally told there was no more, his Honour was then told that there was the 27 page document. His Honour was next told that the video recording has been manipulated, and that there was an “admission” by the police. The Magistrate sought to understand the Plaintiff’s application in terms of the s 214 circumstances.
Using the language of each of s 214(1)(a) and s 214(1)(c), the Magistrate asked the Plaintiff why she said her material showed one of the specified circumstances pertained. His Honour asked questions with particular focus on the role of the investigating police.
After the Magistrate has heard enough, he dismissed the application and gave reasons which were addressed in their terms to the circumstances specified in s 214. His Honour concluded “I’m not satisfied that the criteria under 214(1)(a) and 214(1)[(c)] have been made out in relation to the specified legal costs”.
There is nothing in the transcript or the Magistrate’s reasons which suggest much less demonstrate that the Magistrate focussed upon or even considered the Plaintiff’s credibility in determining the costs application. The Magistrate did refer to the Plaintiff’s assertion that the video recording had been tampered with as “yet another wild and false allegation against the officer-in-charge not substantiated in any way”, but that statement is to be understood as a comment on the characteristics of the allegation which was grave and implausible, which characteristics were exacerbated by the Plaintiff’s inability upon inquiry to articulate any reasonable basis for making the allegation. The characteristics of the allegation were relevant to the requirement in s 214 that the Magistrate be satisfied of the specified circumstance. The Magistrate’s comment does not reveal a focus on the Plaintiff’s credibility.
Nothing submitted by the Plaintiff makes good Ground 4.
A challenge to a decision on the basis that it is legally unreasonable is notoriously difficult: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 337-378; [2013] HCA 18 at [113] (Gageler J). None of the submissions made by the Plaintiff address legal unreasonableness. As revealed by the text of Ground 7 itself, only one matter is relied on for the submission: the Magistrate did not apply the principles in Latoudis v Casey. The Plaintiff is correct to say that the Magistrate did not apply those principles. Following the introduction of s 214 of the Criminal Procedure Act 1986, his Honour was correct not to.
Ground 7 is to be rejected.
Ground 1 is the first of a number of grounds by which the Plaintiff submits that she was denied procedural fairness at the hearing of her costs application.
The Local Court is established as a court which means that any jurisdiction conferred on it is necessarily conditioned by the requirement to observe procedural fairness: Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at 48; [2021] HCA 2 at [47] (Kiefel CJ, Bell, Gageler and Keane JJ). Had it occurred, a failure by the Magistrate to afford procedural fairness when hearing the costs application would be a jurisdictional error: Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282 at 290; [2023] NSWCA 261 at [30] (Kirk JA, with whom Mitchelmore and Adamson JJA agreed).
The aspect of procedural fairness which is relevant in this case is the rule which requires that the Plaintiff have a reasonable opportunity to be heard. There is no right to be heard but a right to have an opportunity: Escobar v Spindaleri (1986) 7 NSWLR 51 at 55 (Kirby P, with whom Glass JA agreed). The description of the opportunity is usually qualified by the adjective “reasonable”. There is no entitlement to an opportunity which is ideal: Yoong v The Chief Executive of Medicare [2021] FCA 701 at [122] (Rangiah J). What is reasonable will depend on the circumstances of the case. The content of a decision-maker’s obligation to afford procedural fairness also depends upon the circumstances of the particular case. In Kioa v West (1985) 159 CLR 550 at 585; [1985] HCA 81 at [33], Mason J said:
“[T]he expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”
The touchstone is fairness: Kioa v West at 583–585; [30]–[33] (Mason J).
Acting as his Honour was under s 213 of the Criminal Procedure Act 1986, the content of the Magistrate’s duty to observe procedural fairness was in the first instance a question of statutory construction. There is some tension in the wording of s 213(1) about what kind of procedure is intended. Under s 213(1), the time for the court to decide to make an order for costs is “at the end of summary proceedings”. Whilst not as explicit at s 41A of the Justices Act 1902 (NSW), which provided for a costs order to be made “when making an order discharging a defendant as to the information then under inquiry” (see R v Manley (2000) 49 NSWLR 203 at 216; [2000] NSWCCA 196 at [60] (Simpson J)), s 213 contemplates that the determination of any costs application will be made sufficiently close to the dismissal or withdrawal of the matter to answer the description “at the end”. This suggests that the determination of an application for costs will be a short, summary procedure.
On the other hand, the amount of professional costs to be ordered is that which the court considers to be just and reasonable: s 213(2). The pre-conditions to a costs order are set out in s 214(1), each of which directs attention to the manner in which the matter was investigated (or failed to be investigated), initiated and conducted, and the reasonableness and good faith of the investigators and prosecutors concerned. The Court’s need to be satisfied about these matters is suggestive of a substantive procedure, not least in the interests of fairness to the investigators and prosecutors.
In this case the Magistrate was hearing a s 213 application for payment of professional costs upon the dismissal of the charges against the Plaintiff. His Honour was hearing the application in circumstances where, to the Magistrate’s own observation, the Plaintiff did not have legal representation and the charges had been dismissed without the need for the Plaintiff to adduce evidence from any witnesses. According to the Plaintiff’s summary spreadsheet, and ignoring obviously irrelevant matters, the amount of professional costs being claimed was less than $4,331 and possibly $0. Even if sincere, the fact that the Plaintiff considered her costs to be $1m or $3m does not change the fact that the application before the Magistrate was a relevantly small application, and obviously so.
The purpose of a costs order, were it to be made, would not have been to punish the Defendant but to compensate the Plaintiff for some or all of the professional costs incurred by her: Latoudis v Casey at 543 (Mason CJ).
The specific and limited purpose of a costs order is important in this case. There is ample material before the Court from which it is clear that the Plaintiff views her application for costs as a vehicle by which she can address what she perceives to be wider issues. This is addressed in more detail below.
Whatever the Plaintiff’s subjective purpose for her costs application, the Magistrate was required to hear and determine the application in accordance with the law. The Magistrate had to take into account the purpose of an order for costs and ensure that the Plaintiff was afforded procedural fairness in accordance with that purpose. The Magistrate was not obliged to permit the Plaintiff to address and adduce evidence on aspects of wider issues.
Whilst there are important differences, there are relevant similarities between an application for costs under s 213 of the Criminal Procedure Act 1986, where the jurisdiction to award costs turns on the court’s satisfaction about the conduct of investigators and prosecutors as described in s 214, and an application for a personal costs order against a legal practitioner under s 99 of the Civil Liability Act 2005 (NSW). Under s 99, the Court’s jurisdiction turns on whether it appears that the conduct of the legal practitioner has the quality described in s 99(1). Unlike a costs order under s 213, there may be a penal element to a personal costs order under s 99: Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300 at 327; [2005] NSWCA 153 at [120]–[121] (McColl JA, with whom Hodgson and Ipp JJA agreed). Even with that extra layer of gravity, the procedure to be followed in determining an application under s 99 must be fair and as simple and summary as fairness permits. The hearing should be measured in hours, not days, and the court must be astute to control what threatens to become new and costly satellite litigation: Lemoto v Able Technical Pty Ltd at 321–322; [92]. There is nothing in s 213 of the Criminal Procedure Act 1986 which warrants a different approach.
Other matters relevant to the content of the Magistrate’s duty to afford procedural fairness are that the application was made immediately upon the dismissal of the charges against the Plaintiff, the Magistrate was twice told that all the Plaintiff’s material was before the Court, the modification of the video recordings was an issue already addressed during the hearing of the substantive case when it was revealed to be groundless, at no time did the Plaintiff inform that Magistrate that there was other evidence which she wished to adduce and at no time did she apply for an adjournment.
On the question of the nature and quantum of the costs claimed by the Plaintiff, there is no basis for the allegation that the Plaintiff was denied an opportunity to present evidence. The transcript makes clear that the Plaintiff had no evidence to present. In the Plaintiff’s favour the Magistrate nonetheless adopted the unorthodox procedure of looking directly at the Plaintiff’s computer. His Honour received the Plaintiff’s “bundle”. His Honour had regard to the summary spreadsheet even though it was not evidence. There is no suggestion by the Plaintiff that on 3 November 2023 she had other evidence which she wanted to adduce. As described above, in this Court the Plaintiff has adduced some evidence about legal costs, all of which was generated after the conclusion of the trial before the Magistrate 3 November 2023.
On the question of whether the Magistrate could be satisfied about the circumstances specified in s 214(1)(a) or s 214(1)(c), the Magistrate asked the Plaintiff to identify the evidence relied upon. His Honour was initially told there was “no more material”. Despite that, the Plaintiff proceeded to address new matters. She eventually handed up the 27 page document which is addressed above. She also relied upon the email dated 29 June 2023 which she said was an admission that the police had manipulated the video recordings. The Plaintiff subsequently obtained evidence about the metadata and duplication of frames, but that evidence did not exist on 3 November 2023.
In this Court, the Plaintiff provided a list of the evidence which she contends provides a basis for the Court to be satisfied about the circumstances specified in s 214(1)(a) or s 214(1)(c). The list has five items:
a video adduced into evidence in these proceedings as Exhibit F – the video was made by the Plaintiff after 3 November 2023 and includes some re-enactments by the Plaintiff and an actor and does not demonstrate any tampering with or manipulation of the video recordings before the Magistrate;
the Plaintiff’s 27 page document referred to above – this document was before the Magistrate but it is a submission not evidence, and in any event it lacks comprehensibility;
the metadata and duplication of frames evidence referred to above;
the admission in the email dated 29 June 2023, which was before the Magistrate; and
evidence from a telephone company which the Plaintiff says proves that on prior occasions she called the police for help with an abusive customer, yet the police did not attend.
Apart from this material, the Plaintiff has not identified any evidence which she wished to adduce before the Magistrate on 3 November 2023.
The Plaintiff referred to Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21, where a magistrate was found not to have afforded a prosecutor procedural fairness by preventing the prosecution from calling two witnesses. The circumstances of the Plaintiff’s case are very different to Elskaf. Elskaf was a criminal prosecution where the magistrate refused to allow some prosecution witnesses to be called without even knowing what their evidence would be. Their evidence was demonstrably relevant. In those circumstances, the content of the magistrate’s obligation to permit the prosecution to present evidence was different to that which applied to the Plaintiff’s costs application under s 213. The Magistrate did not exclude evidence on any relevant matter. On the contrary, the Magistrate was at pains to identify and consider any evidence which was relevant.
Having regard to the circumstances of this case and the nature of the application being considered by the Magistrate, the Plaintiff has not demonstrated that there was a want of procedural fairness because the Magistrate denied the Plaintiff a reasonable opportunity to present evidence in support of the costs application.
Ground 1 is to be rejected.
Ground 2 is also an asserted want of procedural fairness which runs in the same channel as Ground 1 and terminates in the same dry gully. A review of the transcript of the costs application makes clear that the Plaintiff was given every opportunity to speak. The Magistrate systemically directed the Plaintiff to the issues arising under ss 213 and 214 and sought her submissions on those issues. The Plaintiff addressed each issue. Despite the lead of the Magistrate, the Plaintiff interspersed her submissions about relevant matters with submissions about irrelevant matters.
It is true that the Magistrate told the Plaintiff to stop talking, or simply to “stop”. This occurred on a number of occasions. Generally it occurred when the Plaintiff was speaking about matters which were irrelevant to her application or which were on a topic different to that about which the Magistrate was enquiring. The Plaintiff’s complaint appears to be that she was not permitted to speak about whatever topic she wanted for as long as she wanted. She had no such entitlement. It was incumbent on the Magistrate to conduct the hearing of the costs application in an appropriate and efficient manner. The opportunity afforded by the Magistrate to address relevant issues was reasonable in the circumstances of the application before his Honour.
The Plaintiff has not made out Ground 2 which is also to be rejected.
“5. Refusal to Admit Relevant Evidence:
Ground: The Magistrate erroneously refused to admit evidence of false material fabricated by the police shortly after the charges were laid, despite admitting similar evidence regarding other exhibits. Such evidence is file’s metadata revealing date of file’s creation. This inconsistent action constitutes a breach of procedural fairness and natural justice, requiring the decision to be reviewed, set aside, and remitted for proper consideration according to law.”
There is some specificity to Ground 5 in that it identifies the topic to which the rejected evidence relates (“false material fabricated by the police shortly after charges were laid”) and the nature of the evidence (“files metadata revealing date of files creation”). However, the actual evidence is not identified, nor is there a reference to an occasion when the Magistrate rejected the evidence.
Apart from the “admissions” in the email dated 29 June 2023 (which the Magistrate read and took into account), the only evidence which goes specifically to the manipulation of the video recordings is the metadata and duplicated frames evidence (which was created after 3 November 2023) and the video made by the Plaintiff herself which includes some re-enactments by herself and an actor (also created after 3 November 2023). From page 3 of the transcript of the hearing before the Magistrate on 7 June 2023, it appears that the Plaintiff brought to the attention of the Magistrate that the metadata of the video recordings could be accessed by a “right-click”. The Plaintiff told the Magistrate that this was the evidence that the police had modified the video recording. In submissions to this Court, the Plaintiff said that the metadata showed that the video recordings has been created on 23 May 2023 and not on 20 May 2023 when the confrontation with Ms N occurred. Even if that be right, the Plaintiff could not point to anything which demonstrated or even suggested that on 23 May 2023 the police had modified the video recordings and not merely made copies for their own proper purposes.
In any event the Magistrate was fully aware of the Plaintiff’s case on the video recordings. His Honour simply did not view the Plaintiff’s evidence and submissions about the video recordings as providing a basis for his Honour to be satisfied of the circumstances specified in s 214(1)(a) or s 214(1)(c).
Ground 5 is to be rejected.
A Russian language interpreter was present on the first and second days of the trial, although the transcript shows that the interpreter played little if any role. At the end of the second day, the Magistrate declined to order an interpreter for the third day. His Honour stated that the interpreter was “highly unnecessary”. Having heard the Plaintiff talking for the first two days of the trial, the Magistrate had formed the view that the Plaintiff’s English language was “near perfect” or “perfect”. For the reasons given above, the Magistrate’s conclusion about the Plaintiff’s language skills was correct.
The absence of an interpreter will not constitute a denial of procedural fairness unless it has denied a party a meaningful opportunity to present his or her case. Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744 at [15] (Flick J). There is no evidence that the Plaintiff suffered any prejudice because there was no interpreter during the hearing of her costs application. The Plaintiff does not actually suggest otherwise.
Ground 8 is to be rejected.
“9. Breach of statute admitting false material despite two objections. Action that is significantly affecting the plaintiff’s life normality and requires immediate rectification in a Local Court:
Ground: Compliance with Statute: Section 138 of the Evidence Act 1995, Sections 317 and 319 of the Crimes Act 1900, and Sections 8(2), 15 and 16 of the Privacy and Personal Information Protection (PIPP) Act 1998.”
The “false material” is evidently the video recordings made by Ms N during the original incident. As set out above, during the trial the Plaintiff objected to the video recordings being adduced into evidence on two grounds, namely that they had been modified and that Ms N had made them in contravention of the Surveillance Devices Act 2007. The Magistrate’s overruling of the objection about the manipulation of the video recordings is to be understood as the Magistrate deciding not to make the finding of fact from which the objection proceeded. Given the absence of any evidence, no error is shown. The Magistrate’s overruling of the objection under the Surveillance Devices Act 2007 is to be understood as being based on findings of fact, specifically that Ms N had not forced her way into the Plaintiff’s studio and that making the video recordings was reasonably necessary for the protection of Ms N’s lawful interest. There is no reviewable error in the Magistrate’s evidential ruling on the admissibility of the video recordings.
The Plaintiff relies on three statutes for Ground 9. Section 138(1) of the Evidence Act 1995 (NSW) provides:
138 Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The Australian law which the Plaintiff says was contravened when the video recordings were obtained is the Surveillance Devices Act 2007. In view of the Magistrate’s findings, the video recordings were not obtained in contravention of an Australian law and admitting the video recordings was not contrary to s 138(1).
Section 317 of the Crimes Act 1900 provides:
317 Tampering etc with evidence
A person who, with intent to mislead any judicial tribunal in any judicial proceeding—
(a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or
(b) fabricates false evidence (other than by perjury or suborning perjury), or
(c) knowingly makes use of fabricated false evidence,
is liable to imprisonment for 10 years.
Section 319 of the Crimes Act 1900 provides that a person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years. It is unclear how the Plaintiff says these provisions are relevant to her contention that the Magistrate’s rejection of her costs application under s 213 of the Criminal Procedure Act 1986 is infected by reviewable error. Given the gravity of the conduct addressed in ss 317 and 319, more clarity would be required before these contentions could be fairly considered by the Court. In any event, given the Magistrate’s findings at the time the Plaintiff objected to the video recordings being adduced into evidence, the video recordings were not obtained in contradiction of an Australian law.
The Privacy and Personal Information Protection Act 1998 (NSW) is a statute which provides for the protection of personal information held by public sector agencies (including the police) and for the protection of the privacy of individuals generally. No question arises in these proceedings about the protection of the Plaintiff’s personal information or privacy generally. The statute is irrelevant.
A further unexplained difficulty with Ground 9 is that it relates to evidence which was admitted during the trial. It does not relate to the hearing and determination of the costs application.
Ground 9 is to be rejected.
After hearing the costs application the Magistrate immediately gave an ex tempore judgment. The reasons are relatively brief, consuming approximately one-page of transcript. Important context is that the manipulation of the video recordings had been the subject of submissions on the second day of the trial at which time the Plaintiff had accepted that she had no evidence of modification.
The Magistrate’s reasons have the same structure as the preceding debate. His Honour first addressed quantum, making a finding of fact that the amount claimable on the material before the Court is “at best $4,300 verified in relation to $1980”. His Honour then accurately recited the provisions of s 214(1) which were relied upon by the Plaintiff. His Honour referred to the Plaintiff’s 27 page document which he considered to be an expression of the Plaintiff’s view of the facts. His Honour then referred to the allegation that the video recordings had been doctored or falsified which his Honour found was not substantiated by the “material handed up”. His Honour said that the allegation was “yet another wild and false allegation against the officer-in-charge not substantiated in any way”. The Magistrate further found that the police had received a complaint from Ms N which was supported by Ms N’s statement and the video recordings. His Honour observed that the police have an obligation to follow up and prosecute alleged offences. The fact that Ms N’s evidence did not come up to scratch at trial did not demonstrate any fault in the investigation or prosecution. For a relatively simple matter, the Magistrate found that he was not satisfied that the officer-in-charge conducted the matter in an unreasonable and improper manner or that there were areas of relevant evidence which the officer-in-charge did not pursue. For those reasons the Magistrate dismissed the costs application.
Generally a judicial officer has a duty to give reasons for the decisions that he or she makes: Wainohu v New South Wales (2011) 243 CLR 181 at 214; [2011] HCA 24 at [54] (French CJ and Kiefel J). A failure to provide adequate reasons may be an error of law: Waterways Authority v Fitzgibbon [2005] HCA 57 [129] (Hayne J, with whom McHugh and Gummow JJ agreed). It is not possible to say with precision what is required for reasons to be adequate: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 381 (Hutley JA, with whom Samuels JA agreed). The adequacy of the reasons is to be assessed in the context of the nature of the decision: Wainohu v New South Wales at 215–216; [56]. The basis of the decision must be apparent but the reasons need not be elaborate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 (McHugh JA). The reasons need only indicate to the parties why the decision has been made and allow them to exercise such rights as they may have in respect of the decision: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd at 385. If, for example, there is no right of appeal from a decision, less elaborate reasons may be required than would otherwise be the case. If there is a right of appeal limited to a question of law, then the requirement for the decision-maker to give reasons for his or her findings of fact are diminished: Soulemezis v Dudley (Holdings) Pty Ltd 280–281 (McHugh JA).
Applying those principles to the circumstances of this case, the reasons given by the Magistrate were adequate. The reasons were given after the conclusion of the trial in which the parties had participated. The path followed by the Magistrate is clear. The Magistrate identified with sufficient clarity the factors which led him not to be satisfied as to the circumstances specified in s 214(1)(a) and s 214(1)(c).
The Plaintiff’s final Ground 6 is also to be rejected.
Even if the Magistrate’s rejection of the costs application is vitiated by reviewable error (which it is not), this is a case where the Court ought to refuse relief.
Even in a case where jurisdictional error has been established, the Court has a residual discretion to refuse relief. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 148; [2018] HCA 34 at [74], Edelman J said:
“There has long been a residual discretion to refuse to issue a writ of certiorari even where a jurisdictional error is established. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd, this Court said that discretion might be exercised to refuse a writ of certiorari “if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made”. Reference to the potential exercise of discretion where no useful result could ensue thus looks forward to the utility of another hearing. Although the residual discretion is not confined to being “forward looking”, it contrasts with the usual consideration of materiality, discussed above, which looks backwards to whether the error would have made any difference to the result.”
The discretion is judicial. If the refusal of a definite public duty is established, relief will be granted unless it is just that the remedy be withheld in the circumstances of the case: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ). It may be said that a refusal of relief will only occur in rare cases, but there will be circumstances in which relief will be refused.
In this case there are three separate reasons why relief ought to be refused.
“costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before the court.”
I have also addressed above the Plaintiff’s English language skills. To my observation, and to the observation of the Magistrate, the Plaintiff’s English is excellent. Nonetheless, when the Plaintiff applied to the Magistrate for costs, she included the costs of a “translator”. Specifically, when his Honour was considering the nature and quantum of the Plaintiff’s costs, she handed to the Magistrate a bundle of documents. The bundle included a form of costs agreement between the Plaintiff and Christopher Hunt together with twelve tax invoices. The total of the invoices was $34,200 plus GST. These documents were adduced into evidence before me as Exhibit D.
The costs agreement is a one-page document which commences with the following:
“AGREEMENT FOR TRANSLATION / LANGUAGE REFINEMENT SPECIALIST SERVICES for court matter 2021/00147491.
This Agreement (“Agreement”) is made and entered into on this date: 25th May 2021.
By and between:
Natalia Mikhaylova (“Client”) of [REDACTED] Matraville NSW 2036.
and
Christopher Hunt (“Service Provider”) ABN: [REDACTED] of [REDACTED] North Melbourne 3051.”
“1.1 Services Provided by Christopher Hunt:
Service Provider agreed to provide legal case preparation services to the Client, including but not limited to translation / language refinement services necessary for the preparation of the case.”
“3. PAYMENT TERMS
3.1 Monetary Payment:
Client agrees to pay Service Provider the sum indicated in itemised invoices for the translation / language refinement specialist services provided.
or
3.2 Non-Monetary Payment:
As an alternative to the monetary payment, Client agrees to compensate Service Provide by providing services, e.g., consulting; educational or other services, software development, equivalent to the total amount specified in the itemised invoices for the services rendered.
3.3 Professional Fees:
Client agrees to pay the Service Provider the sum of $450 per hour for the legal case preparation services provided.”
The clear emphasis in the costs agreement is on translation.
The costs agreement is signed by both the Plaintiff and Christopher Hunt.
The twelve tax invoices are in a standard form. The first is typical:
“Tax Invoice
Invoice no 000035
Issue date 29th May 2021
Christopher Hunt
ABN [REDACTED]
E-mail: [REDACTED]
In Relation to Expert Translator’s / Language Refinement Specialist Services
Issued to
Natalia Mikhaylova Court Matter 2021/00147491
[REDACTED] Matraville NSW 2036.
Itemisation for Tax Invoice 000035
| Task Date | Service provided | Hours | Rate per Hour | Total | | 24/05/2021 | First Meeting with lawyer Lee Ting. Assisting in facilitating communication between legal professionals and clients who’s first language is Russian. Participating in client consultations to ensure clear understanding and communication | 1 | $ 450.00 | $ 450.00 | | 24/05/2021 | Travel time to and from meeting with Lawyer Lee Ting (Sydney CBD) | 2 | $ 450.00 | $ 900.00 |
TOTAL AMOUNT DUE: $ 1,350.00
Professional fees for the period ending 29th May 2021.
GST is not included.
- These fees may be paid by cash, cheque of EFT to Christopher Hunt. For EFT, please see below details. Account Number [REDACTED] BSB [REDACTED]
- These fees are calculated in accordance with the costs agreement.
- Payment is due within 30 days from the date of this invoice. Late payments may be subject to additional charges.
Christopher Hunt
ABN: [REDACTED]
Address: [REDACTED] North Melbourne 3051 VIC.
Phone: [REDACTED]”
The emphasis in the tax invoices is on expert translators, communication and clear understanding.
When these documents were handed to the Magistrate on 3 November 2023, the transcript records the following exchange:
HIS HONOUR: “Christopher Hunt? Is that right?”
ACCUSED: “There is a cost agreement invoice. There is one of the invoices”
HIS HONOUR: “Who is Christopher Hunt?”
ACCUSED: “Translated, your Honour. I had to use the translator, obviously.:
HIS HONOUR: “Let me just have a look. Tax invoice. It’s unsigned but—"
ACCUSED: “Yeah.”
HIS HONOUR: “Tax invoice Christopher Hunt.”
ACCUSED: “Yeah, translation costs.”
HIS HONOUR: “Language, conventions, consultation.”
ACCUSED: “Here is the lawyers—”
PROSECUTOR: “That’s a bill for an interpreter, your Honour. It’s not a legal—”
ACCUSED: “It’s one of the bills.”
PROSECUTOR: “—bill”
ACCUSED: “I’ve got one of the bills.”
HIS HONOUR: “Oh, that’s an interpreter.”
PROSECUTOR: “Yes.”
ACCUDED: “Yeah, that’s right.”
HIS HONOUR: “Well, I thought you said there was one – I’m asking for the solicitor.”
A matter of particular note is that when directly asked “Who is Christopher Hunt?”, the Plaintiff answered “Translated, your Honour. I had to use the translator, obviously”.
The Magistrate put Christopher Hunt’s invoices to one side. After his Honour subsequently commenced his reasons for determining the costs application, the Plaintiff is recorded as interjecting "Translation of costs, please". Despite the reminder, it is evident that his Honour did not have regard to that component. The application was in any event dismissed.
On the first day of the hearing in this Court, in response to an inquiry about the amount in issue the Plaintiff said that her claim for costs was $99,000, of which the costs paid to lawyers was about $4,000. The Plaintiff said that one of the components which made up the difference was the $34,200 paid to the “translator”. She tendered the costs agreement and tax invoices which she had previously handed to the Magistrate. The transcript records the following:
PLAINTIFF: “Translator.”
HOARE: “I do object to these. I say they are not professional costs within the meaning of the section.”
HIS HONOUR: “Yes.”
PLAINTIFF: “I couldn't have done it without a translator, your Honour. I couldn't have gone to the lawyer three and a half years ago. I didn't know the word 'charged'. When the police officer told me I would be charged I didn't know how to react because I didn't know the words. I didn't belong to the criminal idiom. I couldn't go to the lawyer without a translator, your Honour, if you could please consider?”
…
HIS HONOUR: “So now I am looking at an agreement for translation.”
PLAINTIFF: “Yes, your Honour.”
HIS HONOUR: “Dated 25 May 2021, between the plaintiff and Christopher Hunt.”
PLAINTIFF: “Yes, your Honour.”
HIS HONOUR: “Now why do you say – is this English and Russian?”
PLAINTIFF: “No, it's English to English. As you can see I sort of understand English but I couldn't have done it without someone who helped me through the legal meetings to start with and then to prepare all those opinions for the court such as cross examinations or the statements, so for example there is a description of the kitchen bench, so I didn't know the words 'permanent fixture, kitchen bench'. There is no chance I couldn't have done it without the translator, your Honour, to prepare myself for the hearing or to even understand the lawyer.”
HOARE: “Your Honour two things I would say in respect of those documents. One they weren't before the Magistrate.”
PLAINTIFF: “I wasn't allowed to; no actually it's part of the transcript, your Honour, it was.”
HIS HONOUR: “Mr Hoare needs to be able to complete his sentences.”
PLAINTIFF: “Yes.”
HIS HONOUR: “You will get to talk. So it wasn't before the Magistrate?”
HOARE: “One, it's not before the Magistrate and, two, I say they are not professional costs within the meaning of the provision. We can go to Halabi which is the main case dealing with the provision, but putting it shortly the provision is clear from the extended material, it's been directed to overruling Latoudis which allows legal costs to be recoverable in the usual sense. It didn't intend to expand the concept of professional costs beyond what would have been recoverable, quite the opposite.”
HIS HONOUR: “What would happen if Ms Mikhaylova had a solicitor and it was convenient or useful for there to be a translator brought in to assist that process, would the cost of the translator, I have been a bit vague about it, hypothetically, but would the costs of the translator fall within the definition of section 211?”
HOARE: “If a solicitor had been retained who then retained a translator and paid for the translator's services by way of disbursement, may be. Of course there will be a question about whether that was necessary and properly recoverable but it might be, but in circumstances where these translation services were retained by Ms Mikhaylova directly, the question is are they professional costs and within the meaning of the section that was clearly directed towards legal expenses in the ordinary sense and further to that Ms Mikhaylova has just told us it was English to English translation services involving helping her prepare cross examination notes, which on its face sounds like a prohibited provision of legal services in the sense that clearly this person was acting as some form of unlicensed assistance in the preparation of legal documents.”
[PLAINTIFF]: “Can I speak your Honour?”
PLAINTIFF: “Disbursements, it could be classified as disbursements.”
HIS HONOUR: “I am going to admit this into evidence and I haven't decided yet whether it falls within the definition or not, but unlike the previous documents I need to think about it more, so an agreement for translation dated 25 May 2021 between the plaintiff and Christopher Hunt together with tax invoices issued on 29 May 2021, 29 September 2021, 29 October 2021, 29 May 2022, 29 June 2022, 29 July 2022, 21 August 2022, 29 September 2022, 29 April 2023, 29 June 2023, 29 July 2023 and 29 August 2023 will be exhibit D.”
HOARE: “I may add there is a question about who Christopher Hunt is. I haven't seen these before, so there has been no opportunity to investigate that, so it may be worth the plaintiff—"
PLAINTIFF: “It definitely helped me preparing my statement.”
HIS HONOUR: “He certainly charged for it.”
HIS HONOUR: “Mr Hoare?”
HOARE: “I object. These documents are in respect of an agreement between the plaintiff and her own company.”
PLAINTIFF: “Yes.”
HOARE: “For photography services, they are not within the provision.”
HIS HONOUR: “Very well, if I can see the bundle please?”
PLAINTIFF: “They are actually directly relevant to the evidence that the police officer should have obtained and she hasn't and they also support my entitlement to issue the procedural costs and my innocence for the charges.”
HIS HONOUR: “So Todex Pty Ltd, that's your company?”
PLAINTIFF: “I am one of the directors of the company and that company was relevant to the event, directly relevant to the event, and was in possession of most of the evidence but some of the evidence had to be collected from outside such as lobby pictures for example.”
HIS HONOUR: [Looking at the costs agreement] “This is a lot like the documents between you and Mr Hunt. “
PLAINTIFF: “Yes they are very similar, yes.”
HIS HONOUR: “Is Mr Hunt connected to Todex Pty Ltd?”
PLAINTIFF: “Yes, he is one of the directors. Well the costs had to be paid, the work had to be done and I had to defend the charges that were brought based on non existent and misleading video, your Honour, what could I do? I didn't understand the word 'charge'. How could I go to the lawyer by myself?”
HIS HONOUR: “Does Mr Hunt have any qualifications. Who is Mr Hunt?”
PLAINTIFF: “Just a friend.”
HIS HONOUR: “Is he a photographer?”
PLAINTIFF: “No.”
HIS HONOUR: “What is his job?”
PLAINTIFF: “In the business he does the accounting and all the administration and I will bring to your Honour's attention again that the event was directly relevant to the business and the evidence should have been obtained by the police officer and she has refused to do so.
The bottom line your Honour, I shouldn't have been charged because all this evidence shows the falsehoods in police brief which is provided in my statement and it was before the Magistrate Halliday and before the proceedings. That evidence was with the police officer before the proceedings on the 18 July 2022.”
HIS HONOUR: “Ms Mikhaylova.”
PLAINTIFF: “Yes, your Honour.”
HIS HONOUR: “This is an agreement between you and your company.”
PLAINTIFF: “Yes.”
HIS HONOUR: “For your company to charge you $345.”
PLAINTIFF: “Yes.”
HIS HONOUR: “Per hour for the case.”
PLAINTIFF: “Not for the case, to obtain the evidence, your Honour.”
HIS HONOUR: “It says for the legal preparation services.”
PLAINTIFF: “That's right.”
HIS HONOUR: “And then the first tax invoice dated 29 May 2021, the first item for which your company has charged you, is called first meeting with lawyer, Lee Ting.”
PLAINTIFF: “Yes.”
HIS HONOUR: “On the 24 May 2021 and you have been charged one hour's time for that by your company.”
PLAINTIFF: “Well, yes, obviously I had to go and see a lawyer instead of working.”
HIS HONOUR: “So these are services you provided to yourself?”
PLAINTIFF: “Well, to the company, yes. The company is relevant to this event and instead of working for the company I had to go and see the lawyer.”
HIS HONOUR: “Very well. I am not persuaded that this evidence is relevant to the claim for costs under section 214 and 213 and so I will read it on to the record. This is a costs agreement for "legal case preparation services" dated 21 May 2021 between the plaintiff described as the client and Todex Pty Ltd, described as the service provider together with a bundle of tax invoices presumably issued pursuant to that agreement, the tender of which I reject.”
HOARE: “I am sorry, there is one last point which I discussed with the plaintiff with exhibit D, which is the transcriptionist's invoices. The transcriptionist Mr Hunt is the plaintiff's husband. There is evidence in the Court Book showing that—"
PLAINTIFF: “I don't object, that's correct.”
HOARE: “There is no dispute about that. Whether that affects your Honour's admission of that evidence or not.”
HIS HONOUR: “I have admitted it. That is agreed, is it?”
PLAINTIFF: “Yes. Who else could I ask in such a proceedings to help me.”
HIS HONOUR: “Very well…”
HIS HONOUR: “He is not a translator, is he?”
PLAINTIFF: “No, no, he is my husband.”
And then:
PLAINTIFF: “So what is your question, your Honour? Chris Hunt is not a professional translator if that's the question. However, I couldn't have possibly not have anyone's help to help me prepare all this material.”
There is no evidence that Christopher Hunt speaks Russian or any other language other than English.
The fact that Christopher Hunt is the Plaintiff’s husband and not a translator is significant for two reasons. First, some of the statements made by the Plaintiff to the Court were false. She was asked directly who Christopher Hunt was. The question was asked in the context of her explanation about the unusual nature of the Todex costs agreement and invoices which in substance were documentation of the Plaintiff’s own company charging the Plaintiff for her own time. The similarity between the Todex documents and the Christopher Hunt documents provoked the direct question about Christopher Hunt. The Plaintiff told the Court that he was “just” a friend. She also repeatedly referred to Christopher Hunt not by name but as “the translator”. Given the context, there is an inference that the Plaintiff tried to mislead the Court because she perceived that the true position was not to her advantage.
The second reason why the facts about Christopher Hunt are significant is that a different light is cast on the costs agreement and invoices which the Plaintiff tendered and which were admitted into evidence as Exhibit D. It is clear that Christopher Hunt’s assistance, for which the Plaintiff claims to have paid $34,200 plus GST, was not the commercial transaction represented by the costs agreement and the invoices. As the Plaintiff said, her husband helped the Plaintiff because there was no one else she could ask. For example, on 24 May 2021 the Plaintiff and her husband went to a solicitor about the charges laid by the police and she has tried to include in her costs claim an hour of her time (via Todex) and an hour of her husband’s time, in each case at a rate higher than that charged by the solicitor. Viewed against the facts, Christopher Hunt’s costs agreement and invoices appear contrived. The same may be said about the Todex documents, although the tender of those documents was rejected and they may be put to one side.
On the second day of the hearing the Plaintiff was asked to address the proposition that the Christopher Hunt documents had been prepared to give a false impression. The following exchange occurred:
HIS HONOUR: “What do you say to the proposition that the invoices were prepared between Christopher Hunt and yourself to make it look like they were professional expenses when it was just your husband helping you with the case?”
PLAINTIFF: “Your Honour, when you mentioning it is just my husband, first of all, we don't have shared finances. He had to spend lots of time with me sitting down and going to the lawyer. We went to the lawyer together. I couldn't go to the lawyer by myself because I couldn't understand the conversation. There was many phone conversations as well he had to be engaged. I had to prepare cross examination. I was not able to describe the table, the permanent fixture kitchen bench without someone's help. I wouldn't have been able to prepare professionally, like properly for the Court hearing without the professional, without someone helping me with English, your Honour. I did not understand the word "charge". When police officer say to me she is charging me I had no idea what the meaning of the word is.”
HIS HONOUR: “I don't think you are answering my question.”
PLAINTIFF: “So what is your question, your Honour? Chris Hunt is not a professional translator if that's the question. However, I couldn't have possibly not have anyone's help to help me prepare all this material.”
HIS HONOUR: “It is not a question I am not asking you about whether you needed help.”
PLAINTIFF: “Yes.”
HIS HONOUR: “I'm asking you about whether these invoices in exhibit D have been prepared to make it look like you received professional services when, in fact, you were getting help from your husband?”
PLAINTIFF: “Correct, I was getting help from my husband. That is correct.”
HIS HONOUR: “That's the second part, but the most important part is the first part.”
PLAINTIFF: “Yes, your Honour.”
HIS HONOUR: “Which I have asked you two times now and both times you have not answered. These invoices, I'm asking you, these invoices look like they have been prepared to make it look like you received professional services or you incurred professional expenses when you were just getting help from your husband. What do you say to that?”
PLAINTIFF: “The professional services I have received from my husband, yes. He did come with me to the meetings. He did participate in lots of meetings. He helped me to prepare all the cross examinations. I don't know which particular phrase to focus my attention on. The invoice has been prepared, yes, the invoices have been prepared. Professional services, I don't know if that's qualified as a professional or not. However, I wouldn't have been able to go to the lawyer without someone explaining to me the meaning of the conversation, your Honour.
So, what is the first part of the have I answered the question?”
HIS HONOUR: “No.”
PLAINTIFF: “The invoices been prepared, yes.”
HIS HONOUR: “To make them look like professional expenses when they are just you getting help from your husband.”
PLAINTIFF: “‘To make them look like your’ is the line you want me to focus? I have had help from my husband.”
The Plaintiff did not give the Court any further response about the circumstances in which the Christopher Hunt invoices were prepared.
Of her telling the Court that Christopher Hunt was “just a friend”, the Plaintiff said:
HIS HONOUR: “When I asked you—"
PLAINTIFF: “Yes, your Honour.”
HIS HONOUR: “who is Mr Hunt you said he is just a friend.”
PLAINTIFF: “It is irrelevant to the proceedings. We never had shared finances.”
HIS HONOUR: “What do you say to the proposition that you knew—"
PLAINTIFF: “Yes.”
HIS HONOUR: “that if you told me it was your husband then I would realise that these are not proper professional expenses.”
PLAINTIFF: “Why is that, your Honour?”
HIS HONOUR: “Do you want to answer my question.”
PLAINTIFF: “I would love to answer your question, but I don't think it is relevant. My husband is my friend and my husband. Yes, they are both, he is both. So, I don't know why the determination between the husband and the friend would be different in this case and how could the Court determine the difference between the friend and the husband in relation to the help me, to help me to prepare for the Court case. So what is the difference between, your Honour?”
HIS HONOUR: “Is there anything else you want to say about those invoices?”
PLAINTIFF: “How is that important, what relationship with the person who I don't share the finances with?”
PLAINTIFF: “Okay. I'm single, financially. So, that gives me the right to say that Christopher Hunt is my friend, or no one, financially.”
HIS HONOUR: “Then the magistrate said to you at line 4, ‘Who is Christopher Hunt?’”
PLAINTIFF: “Yes.”
HIS HONOUR: “You said, ‘Translated your Honour, I had to use the translator obviously.’”
PLAINTIFF: “Correct.”
HIS HONOUR: “And you didn't tell him he was your husband.”
PLAINTIFF: “Why is that important, your Honour? Why?”
HIS HONOUR: “And you didn't tell him he was not a translator?”
PLAINTIFF: “No.”
HIS HONOUR: “So, the question, ‘Who is Christopher Hunt? Translated, your Honour, I had to use a translator’.”
PLAINTIFF: “Yes.”
HIS HONOUR: “You told the magistrate something that was not true, do you agree with that?”
PLAINTIFF: “I disagree because that is not true.”
HIS HONOUR: “Why?”
PLAINTIFF: “Because he has helped me with the interpretation of legal terms and going to the lawyer with me, going to all these meetings, listening to the conversations with other lawyers. I used the Kingsford Legal Centre at the end of the proceedings and all this telephone conversations were engaged, and that made him sick as well.
So I don't want to why would I why would I determine the relationship between the person who helped me translating? So, I did not lie. I did use the translation services and I had to. Up until the charge particular came into play and now I'm fine with all the paperwork. So this paperwork was prepared mainly by charge in particular. Before I didn't know about it.”
The impression I formed listening to the Plaintiff is that she understood perfectly well that she was being asked about the preparation of the Christopher Hunt documents and the answers she had given to the Court, yet she steadfastly tried to evade those issues, instead repeating mantra-like that her husband had in fact helped her.
The conclusions which are to be drawn from these facts, and which I draw, is that the Plaintiff wanted to include in her claim more than the sums charged by the lawyers, she wanted to include a significant sum referrable to help provided by her husband, that she perceived that first the Magistrate and then this Court might not accept that part of the claim if it was a sum representing her husbands help with the case (not as a lawyer, nor a translator nor in any other professional capacity) and that she therefore sought to misrepresent the sum to the Court as professional fees paid to a third party translator. The misrepresentation included both positive statements (that Christopher Hunt was a “translator” and “just a friend”) and obvious omissions.
There is no evidence that the Plaintiff actually paid money to her husband, although it does not matter whether a payment was made for the purposes of the preparation of the documents in the form set out above and the statements made to the Magistrate and the Court.
In drawing these conclusions I have considered whether some strange reasoning means that the Plaintiff actually believes that her husband acted as a “translator” and therefore she has an entitlement to include $34,200 as a sum which represents his help. However, the Plaintiff twice accepted in unequivocal terms that her husband is not a translator. As set out above, the Plaintiff is an intelligent person with excellent English skills. Her persistent evasion of questions about the preparation of the documents demonstrated an awareness of their misleading quality even if she believed she was entitled to make the claim.
I have also taken into account the fact that the professional costs which may be claimed under s 213 are confined by the definition in s 211. The Magistrate referred to the terms at s 211 when his Honour heard the costs application but not until after the Plaintiff had handed up the Christopher Hunt documents and asked the questions set out above. However, even if the Plaintiff was not aware of the terms of s 211, the form and content of the Christopher Hunt documents and the answers given to the Magistrate have a misleading quality indicative of an awareness of a limit on what could be claimed beyond which lay a sum referrable to her husband’s time. That indication is reinforced by the Plaintiff’s equivalent conduct in this Court where the s 211 limitation was squarely in issue.
In drawing these conclusions I have also taken into account the gravity of the conduct. Absent any cogent explanation, I am nonetheless satisfied that the Plaintiff has tried to mislead first the Magistrate and then this Court.
One of the circumstances in which the Court may refuse to grant relief under s 69 of the Supreme Court Act 1970 is where there has been bad faith on the part of the applicant: SZQBN v Minister for Immigration and Citizenship (2013) 213 FCR 297 at 303; [2013] FCAFC 94 at [46] (Jacobson, Edmonds and Logan JJ). Bad faith which justifies consideration in the exercise of the discretion has been described as “significant dishonesty on which an applicant relies to subvert the proper processes of, and secure an advantageous outcome in, the relevant transaction or court proceedings”: SZQBN v Minister for Immigration and Citizenship at 304; [54].
To be relevant to the exercise of the residual discretion, the bad faith may occur either in the application to the court for prerogative relief or in the anterior process which culminated in the decision being challenged: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd at 400. In this case the Plaintiff’s bad faith occurred on both occasions.
An example of prerogative relief being declined is R v Castles (1894) 6 QLJ 94, where the plaintiff did not disclose to the court that he had already unsuccessfully appealed from the decision before applying for prerogative relief in respect of the original decision. Not every false statement made to a decision-maker will be relevant: SZQBN v Minister for Immigration and at 304; [52]. There must be a sufficient connection between the bad faith and the decision before the bad faith will be relevant to a subsequent exercise of discretion. This directs attention to the quality of the connection between the decision and the applicant’s conduct: SZQBN v Minister for Immigration and Citizenship at 305; [55]. Drawing on equitable principles, the connection must be such that the bad faith has an immediate and necessary relation to the prerogative relief which is being sought: SZQBN v Minister for Immigration and Citizenship at 305; [56].
On the occasion of the anterior process which culminated in the decision being challenged, the Plaintiff’s misleading conduct before the Magistrate did not affect the outcome of the costs application for two separate reasons. First, the Magistrate evidently considered that the costs of a translator did not fall within the s 211 definition of “professional costs”. Secondly, his Honour concluded that the requirements of s 214 were not satisfied so the nature and quantum of the Plaintiff’s costs did not ultimately arise for determination. On the other hand, one of the Plaintiff’s submissions in this Court is that the Magistrate’s rejection of the translator costs was infected by reviewable error which warrants the costs application being remitted to the Local Court. To that extent the Plaintiff’s misleading conduct before the Magistrate has an immediate and necessary relation to the relief being sought.
On the occasion of the application to this Court for prerogative relief the Plaintiff’s misleading conduct has not affected the outcome but the Plaintiff has put forward the Magistrate’s rejection of the translator costs as one reason why this Court ought to grant relief. Further the Defendant has submitted that any relief which would otherwise be available ought to be refused because the Plaintiff’s “professional costs” are $4,300 at the highest. The Defendant’s proportionality argument might be undermined if the sum of $34,200 is added.
In any event I consider that the Plaintiff’s misleading conduct has an immediate and necessary relationship to a grant of relief for another reason. The Plaintiff seeks to have her costs application returned to the Local Court for determination by a different magistrate. Were that to be ordered, I am not convinced that, even now, the Plaintiff would not seek to claim some or all of the translator costs at the rehearing of her costs application. The Plaintiff appears to have an entrenched view about her costs entitlement. The Magistrate remarked on the Plaintiff’s inability to follow the Court’s lead which, with respect, was entirely appropriate. It may be a small risk, but there is a risk that the Plaintiff will seek to mislead the next magistrate if she perceived an opportunity to add the translator costs. In the face of that risk, relief which would otherwise be available (and there is none) ought to be refused.
As a separate matter, on 3 November 2023 the Magistrate rejected the Plaintiff’s application for costs in circumstances where the evidence (albeit faint) of professional costs of $4,300. There was no evidence of payment. Were it to be granted, the proper purpose for relief under s 69 of the Supreme Court Act 1970 would be to have the Plaintiff’s costs application re-heard in accordance with law.
There is no doubt that the Plaintiff has not brought these judicial review proceedings because she is aggrieved by the Magistrate’s rejection of her costs application. The Plaintiff’s purposes for wanting her costs application re-heard in the Local Court are complex, but they include a desire to “present her case” and demonstrate that the police misconducted the investigation. The Plaintiff evidently sees some collateral benefits from such an opportunity. Exactly what those benefits are is unclear, but they appear to include a perceived advantage for the Plaintiff’s ongoing attempt to change her criminal record, possibly for reasons relating to her employment as a piano teacher and possibly relating to a visa issue, maybe to encourage criminal proceedings against Ms N, and maybe to assist her to obtain substantive compensation for perceived wrongs committed by the police and possibly Ms N.
After the Magistrate announced the dismissal of the charges on 3 November 2023, the Plaintiff sought to “present my case”. Then, once the costs application had commenced, the following exchange occurred:
ACCUSED: “So legal costs, I’ve got the paperwork here today.”
HIS HONOUR: “If you can hand—”
ACCUSED: “And I’ve become a victim of common assault in my left hand from Ms Thomas during the event which we have a clear evidence.”
HIS HONOUR: “That’s got nothing to do with the costs.”
ACCUSED: “I had the injury.”
HIS HONOUR: “That’s got nothing to do with the cost application.”
And then:
ACCUSED: “And (1)(c), that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which was out reasonable to have been—"
HIS HONOUR: “So you’re relying on (1)(a) and (1)(c)?”
ACCUSED: “Yeah.”
HIS HONOUR: “All right, just—”
ACCUSED: “I have asked police to charge the offender and they have refused.”
HIS HONOUR: “No, just wait.”
The Plaintiff’s subsequent submissions to the Magistrate included numerous references to her alleged physical injury, psychological trauma, the ruination of her business and disruption to her life.
In this Court, the Summons by which the proceedings were commenced includes many statements which are irrelevant to the Magistrate’s rejection of the costs application. They appear to be directed to a wider objective. For example:
“2. As a result of these proceedings and jurisdictional errors evident on the face of the records, the plaintiff’s life has been significantly disrupted since 2021 due to misleading entries in the police database. The police have unlawfully refused to remove these entries ignoring exculpatory evidence which made proceedings in the Supreme Court unavoidable and the last option to restore the plaintiff’s life normality.
3. This urgent application seeks immediate rectification of the prolonged severe negative impact on the plaintiff and her young children’s lives since May 2021. Immediate action is required to comply with the statute, restore the plaintiff’s normal life, employability, reputation, standing in the community, psychological and financial well-being, and to clear her unlawfully imposed criminal record.”
PLAINTIFF: “Okay. These proceedings are important because of my criminal record because I need to clear my name as well as the money and also I would like to report the crime that I have been a victim.”
HIS HONOUR: “None of that is going to happen in these proceedings. “
PLAINTIFF: “Okay.”
HIS HONOUR: “There is only one issue in these proceedings and that is a question about whether the Magistrate made a right decision or a wrong decision.”
PLAINTIFF: “Yes.”
HIS HONOUR: “In relation to about $4,000 of costs and even if he made a wrong decision whether it is the kind of decision that ought to be reviewed by this Court and even if it ought to be reviewed by this Court whether an order ought to be made changing anything and for $4,000 the Court may say no.”
And then:
HIS HONOUR: “If the case doesn't finish today there will be another day and there will be more costs, do you understand that?”
PLAINTIFF: “Your Honour—"
HIS HONOUR: “I am asking you whether you understand that.”
PLAINTIFF: “I understand that.”
HIS HONOUR: “Okay.”
PLAINTIFF: “I have no choice but to be here due to my mental health. I am unable to live with the issue. I have been under medication. I have panic attacks and anxiety. I have got the evidence in my court book provided.”
HIS HONOUR: “None of that will be considered by the Court today.”
PLAINTIFF: “I am just asking the Court to give me the opportunity to be heard.”
And then:
PLAINTIFF: “I heard you, your Honour, but I don't understand how I am going to persuade the other magistrate in the Local Court without giving evidence, that's what is not clear to me. So if I was able to give my big bundle of evidence (indicated) to the magistrate in the Local Court then perhaps the police will accept that they should remove my criminal record, if it was accepted that it is under section 214(1)(a) I am entitled to receive the procedural costs due to the police officer's misconduct or conduct. Then maybe I can get my employability back and my qualification back and my clear criminal record back.”
PLAINTIFF: “Well, if the Court doesn't agree that I am entitled to this money ‑ that's not the amount I'm here for. I'm here to gain my employability back, and to be heard by the Court. If they didn't give me the criminal history that I have to clear now to get my employability, I wouldn't be filing this whole case. It's very scary to appear in the Supreme Court on your own.”
And then:
PLAINTIFF: “I understood, and I have no choice but to be here. Because not to give evidence, it's not a choice for me, your Honour.
It's also relevant to my mental health, because I've become a victim of perjury. In either criminal offences, I was never able to give evidence or anything. That doesn't let me settle psychiatrically.
And also my understanding was, if I can go to the criminal court and give my evidence, read my statement, and have the evidence considered, then the police will have to expunge my criminal record. Which I still don't know if that was the case or not, but that is my understanding.”
The quotes are just examples. Throughout her written and oral submissions the Plaintiff makes clear her wider purpose for a re-hearing in the Local Court.
A further discretionary basis for declining prerogative relief is where the relief is sought for an ulterior purpose. In R v Commissioners of Customs and Excise; Ex parte Cook [1970] 1 WLR 450 at 456 (Lord Parker CJ, Willis and Bridge JJ) an application for mandamus was refused because the plaintiff’s purpose for seeking to compel the Finance Secretary’s enforcement of a new tax on bookkeepers was not to preserve the revenue but to ruin the plaintiff’s bookmaking competitors.
The Plaintiff’s case is far removed from the factual circumstances in R v Commissioners of Customs and Excise; Ex parte Cook. The principle is nonetheless applicable. There is a proper purpose for which the Court may grant relief under s 69. The Court ought not grant relief to the Plaintiff so that she can return to the Local Court with the stated purpose of seeking to address her wider issues.
The third discretionary reason why relief is to be refused is separate from the second but related. Proportionality is another matter which may appropriately be considered in the exercise of the residual discretion under s 69. The overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings is correctly taken into account in that consideration: NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292 at [15] (Basten JA) (cf Allsop P at [19]). In NRMA Insurance Ltd v Ainsworth relief was refused in respect of a decision to include $2,363 in a larger award of damages even though it was demonstrated that the decision was vitiated by error.
In the Plaintiff’s case the amount of money which would properly be the subject of a re-hearing of her costs application under s 213 is relatively small. Strictly speaking, on the evidence of actual payment, it is $0. Whilst there may be cases where the Local Court will be able to hear such an application in a way that keeps the time, cost and the public resources of the court in proportion to the amount claimed, this is not such a case. Having regard to the Magistrate’s experience in the Local Court trial and this Court’s own experience, there is no basis for confidence that a re-hearing will not develop into a lengthy undertaking. As referred to above, the Plaintiff appears determined to use a re-hearing to address wider concerns just as she did in this Court.
For that third reason, relief which would otherwise be available ought to be refused.
I make the following orders:
Pursuant to UCPR 59.10(3), time for the Plaintiff to file the Summons in these proceedings be extended to 6 May 2024.
The Plaintiff’s Further Amended Summons filed on 23 June 2024 be dismissed.
The Plaintiff pay the Defendant’s costs.
**********
The transcript reads “business laws” not “business loss”, but having heard the Plaintiff’s accent this is an obvious transcription error.
Redactions made to personal identifiers at [171] and [176]
Mikhaylova
Commissioner of New South Wales Police & Anor [2025] NSWSC 542
(2023) 113 NSWLR 282
(1986) 7 NSWLR 51
(2018) 264 CLR 123
(1985) 159 CLR 550
(1990) 170 CLR 534
(2005) 63 NSWLR 300
(1986) 162 CLR 24
(2013) 249 CLR 332
(2021) 272 CLR 33
(1949) 78 CLR 389
(2000) 49 NSWLR 203
(1987) 10 NSWLR 247
(2013) 213 FCR 297
(2011) 243 CLR 181
(2014) 85 NSWLR 390