Mills v The Commissioner of Police, New South Wales Police

The Local Court's decision.

1. In his written reasons his Honour discussed the requirements of ss 213 and 214 of the Criminal Procedure Act and authorities which bound him in determining the quantum of the disputed costs in an amount he considered to be "just and reasonable". He observed that the discretion had to be exercised judicially and that the costs awarded had to be compensatory and not punitive.
2. His Honour noted that one consideration in determining just and reasonable costs was any disentitling conduct, the prosecution case being that the way in which the case advanced for Aubrey and Reece Mills had been conducted, had unnecessarily prolonged the proceedings.
3. His Honour accepted that there had been disentitling conduct, the defence having indicated in the listing advice a 2 day estimate and that ultimately, it had occupied 9.
4. His Honour accepted that the listing advice was only an estimate and then referred to Court listing practices, which had constrained its ability to sit continuously at Moree to hear the proceedings. His Honour also noted that he had criticised the defence in the early part of the hearing and concluded that costs should be reduced considerably.
5. His Honour identified the factors he had taken into account to include the need to retain alternative counsel after return of the first counsel's brief; and the hearing having not been completed within 5 days; and the initial defence costs estimate of 2 days, there being no evidence that it had been revised. He considered that the proceedings were not complicated and did not involve complex questions of law or fact, so that new counsel should not have been retained.
6. His Honour also discussed the solicitor's and counsel's charge out rates, their years of experience in practice and areas of specialisation and concluded that the solicitor's charge out rate was excessive for the work he had performed. His Honour also observed that the costs incurred of $195,076.67 was an enormous sum for a summary prosecution.
7. His Honour also concluded that it was not appropriate to depart from the usual party/party costs order, having noted correspondence advising that if the defence of the AVO succeeded, costs would be sought, as well as an invitation to withdraw the charges and AVO on the basis that there be no order as to costs, which was rejected. His Honour did not accept that this was a basis for an indemnity costs order.
8. His Honour also rejected the prosecution case that counsel should not have been retained. His Honour concluded that no costs should be allowed in respect of the AVO applications brought by police or Mr Keen and Ms Johnson, which were not finally the subject of evidence and were withdrawn at the conclusion of the hearing of the criminal charges. That was because he considered that "it is not just and reasonable in those circumstances to impose a costs burden on police.": at [39].
9. His Honour also allowed no costs from 23 July 2019, despite the parties having to prepare submissions and evidence on the question of costs, he having called for submissions on the undefined term "just and reasonable" and the prosecutor submitting and he accepting, that she had no authority to negotiate a settlement of the quantum of the costs to be ordered. His Honour considered it to be contrary to public policy to make a costs order against the prosecution, when so compelled to make submissions on costs.
10. After referring to hourly rates of $500 for counsel and $200 for the solicitor, his Honour rejected the submission that counsel's rate should be reduced by 50%. His Honour considered that it might be oppressive and an injustice to hold the parties to their time estimate, but concluded that 4 days of court time, including all preparatory work, was just and reasonable.
11. The estimate in the costs agreement having been $36,000 on a solicitor client basis inclusive of counsel's fees and other disbursements for a 2 day hearing, his Honour decided that costs should be awarded on the basis of a 4 day hearing. The amount of $72,000 was then reduced by 30%, the award being on a party/party, not indemnity basis. The result was an order for $50,400 inclusive of GST.

The parties' common position

1. The parties agreed that Aubrey and Reece Mills had been denied the procedural fairness they were obliged to be given, his Honour having decided the amount of their just and reasonable costs on bases which they had not been given an opportunity to address. In particular, the notion that inaccuracy in the notice of listing that criminal proceedings had an estimate of 2 days, which the parties had agreed, would have adverse costs consequences for them.
2. It was not in issue that the tortuous history of the proceedings and the inadequacy of the estimate had been relied on to advance Aubrey and Reece Mills' costs' application. The parties also agreed that the findings which his Honour reached had thus "come out of the blue" and that Aubrey and Reece Mills had been denied the opportunity to address this issue, which they were entitled to receive.
3. Likewise, it was also accepted that they had been denied the opportunity to address his Honour on the approach he had adopted in further reducing the amount of costs he had determined, by way of a general discount, in order to arrive at his final figure for their just and reasonable costs.

The orders sought must be made

1. In Dempsey v Director of Public Prosecutions [2019] NSWCA 267 it was observed at [36] that "Procedural fairness normally requires a court to identify, for a person affected by its decision, any critical issue that is not apparent from the nature of the decision or the terms of the statutory power exercised." It must "also advise of any conclusion adverse to the person affected that would not obviously be open on the known material. However, a court is not required to expose its thought processes or provisional views for comment before making the decision."
2. Further, that in the denial of an opportunity to address the question of a reduction to arrive at "just and reasonable costs", had involved a denial of procedural fairness in that case: at [42].
3. There was thus finally no "issue between the parties in this area" that Aubrey and Reece Mills had also been denied procedural fairness, his Honour's decision resting as it did on matters of which they had been given no notice and no opportunity to address.
4. It follows that like in Dempsey I am satisfied that it must be accepted that they were also denied the procedural fairness they were entitled to receive. That amounted to jurisdictional error: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1.
5. Accordingly, the orders which the parties agreed must be made..

Orders

1. For these reasons I order, by consent, that: 1. The Local Court's decision of 22 October 2019 be set aside; 2. The proceedings be remitted to the Local Court to be determined in accordance with law; 3. The Commissioner of Police, New South Wales Police pay Aubrey and Reece Mills' costs as agreed.

Amendments 14 April 2020 - coversheet - included 2nd defendant coversheet and [27] - corrected case citations DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2020