Milu v Smith & Ors [2004] QSC 27

O'Sullivans Lawyers for the Applicant in SC 6077 of 2002

Crown solicitor for First, Second and Third Respondents in SC 6077 of 2002 and for the Applicants in SC 952 of 2004 and SC 1018 of 2004

Terry Fisher & Co Solicitors for the Respondent in SC 952 of 2004 and SC 1018 of 2004

[1] These reasons and orders dispose of costs in the original application for judicial review and in the subsequent applications bought by the second and third respondents in the review application for costs to be ordered against the respondent to their applications.

[2] On 18 December 2003 I dismissed an application by Dan Milu (6077of 2002) for the judicial review of a coroner's decision at an inquest into the death of Mr Milu's son.

[3] The first respondent, the coroner, appeared by counsel to abide the outcome of the review and took no further part in the proceedings. The applicant and the second and third respondents appeared by counsel to argue the case.

[4] On publishing my reasons I invited the parties to make written submissions as to costs. Mr Milu, in submissions on his behalf, contended that there should be no order as to costs.

[5] On 30 January 2004 the second respondent, the Chief Executive, Department of Transport, filed an originating application 1018 of 2004 seeking an order that Mr Martinovic, who acted as counsel for Mr Milu both at the inquest and on the judicial review application, be ordered to pay the second respondent's costs assessed on an indemnity basis. The application was supported by an affidavit, written submissions were lodged. In the event of that order not being made the Chief Executive sought an order that Mr Milu pay his costs.

[6] The Attorney-General for the State of Queensland (the third respondent) had intervened in the review proceedings pursuant to s51 of the Judicial Review Act 1991. The Attorney also seeks an order (originating application 952 of 2004) that Mr Martinovic be ordered to pay the third respondent's costs assessed on an indemnity basis. I heard argument on the three applications.

[7] These reasons deal with the issue of costs in the judicial review application and with the second and third respondents' applications for costs against Mr Martinovic. It is convenient to dispose of the latter applications before considering the applications for costs in respect of Mr Milu.

[8] Although both those respondents were separately represented, appropriately so, in the proceedings before me their applications raise essentially the same issues and can be dealt with together.

[9] I note that s 49 of the Judicial Review Act deals with costs. The applications I am dealing with are made by an applicant and two of the parties to the judicial review application. Obviously, Mr Martinovic was not a party to that application. Section 49(4) provides that subject to the section the provisions of the Uniform Civil Procedure Rules 1999 apply to applications for review. There was no issue before me about that being the case.

[10] There was also no issue that I had power to make the orders sought against Mr Martinovic and that the general principles bearing on costs orders against legal practitioners in respect of their conduct of proceedings applied.

[11] In my view, it should be said that it was appropriate that the third respondent intervene in the review proceedings. Serious allegations of denial of natural justice and bias were made against a coroner who acted appropriately in not taking an active role in the review proceedings; The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 [35][36]; Cairns Port Authority v Albietz [1995] 2 Qd R 470.

[12] The Chief Executive had quite separate interests from those of the Attorney. Issues were raised at the inquest which directly concerned the role and actions of the Department of Transport and its officers, one of them was cross-examined at the inquest by Mr Martinovic.

[13] I note that Mr Martinovic took exception at the inquest to the Chief Executive being given leave to appear by a solicitor. This objection was renewed as a ground of review. Those matters have been dealt with in my reasons for dismissing the application and it is unnecessary to deal further with them here.

[14] Before me, Mr Morris QC for Mr Martinovic, accepted that what his client did "was wrong". His submissions were advanced on the basis that Mr Martinovic was "acting on a pro bono basis" that he was a "young and inexperienced practitioner" and was not to receive any fee for his efforts.

[15] Mr Morris went on to submit that it was open for me to conclude that Mr Martinovic "genuinely believed that he had an arguable case" and was not asserting a case that "he knew to be fundamentally flawed".

[16] The submission continued to the effect that Mr Martinovic represented his client to the best of his ability in a context in which it could be expected that pro bono representatives would necessarily or probably be inexperienced. Mr Martinovic's conduct was to be evaluated in the context of these considerations.

[17] I do not accept that pro bono representatives are necessarily inexperienced or that they have a lesser obligation to the court and to their clients than would otherwise be the case. The proper course for a young and inexperienced counsel may well be to decline to accept direct instructions; see Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683 per Davies JA at 690 [30], if the matter is beyond their experience and resources.

[18] In my view, a review of Mr Martinovic's conduct before the coroner as characterised in the reasons of 18 December 2003 and in the judicial review proceedings, in my view, leads to the conclusion that he acted unprofessionally. That conclusion is, however, not sufficient to found the costs order sought against him.

[19] There is no evidence from Mr Martinovic, or on his behalf, before me. In particular, there is no evidence of his experience and no explanation of his conduct at the inquest or in respect of the review. As to experience I note that an exchange between him and the coroner on the record at the inquest leaves it open to infer that it was not Mr Martinovic's first appearance before that particular judicial officer.

[20] As I have said it was submitted on Mr Martinovic's behalf to the effect that he was acting pro bono and without any expectation of payment. It seems that Mr Milu had instructed solicitors well prior to the inquest to agitate with the authorities, including the Chief Executive, Department of Transport, his concerns about the circumstances of his son's death.

[21] There is no evidence as to when Mr Martinovic was retained although he appeared at the inquest instructed by solicitors. The judicial review proceedings were filed by a solicitor who swore an affidavit setting out and supporting the grounds of review. It seems that some time after the institution of the proceedings Mr Martinovic commenced taking instructions directly from his client. There is no evidence as to the circumstances of that

[22] The solicitor currently representing Mr Milu has filed an affidavit which, among other things, deposes to the fact that $3,500 was paid to the firm of solicitors who instructed Mr Martinovic at the inquest but there is no evidence that any of it was paid to Mr Martinovic.

[23] Given the obligations of counsel to the Court it would, in my view, have been appropriate for Mr Martinovic to file an affidavit addressing such issues. That said, I do not draw any adverse conclusions on that account. I proceed on the basis that Mr Martinovic did not receive remuneration for his role in the review but I do not accept that that diminished his obligation to his client or the Court.

[24] Mr Martinovic was probably responsible for drawing the grounds of review. In any event, he adopted and argued them. There were eight grounds of review. Grounds (i), (iii), (iv), (vi) and (vii) raised apparent bias. Grounds (ii) raised denial of natural justice as, implicitly did ground (v). Ground (viii) raised error of law based on the coroner's failure to direct the police traffic investigation unit to prepare a scale plan.

[25] Ground (i) was not made out. It was found that there was no substance in ground (ii), (iii), (iv), (v) and (vi). It is not clear that ground (vii), although raised in argument on review, was persisted in. It was nevertheless disposed of as being without substance.

[26] I do not propose rehearsing the reasons which I published on 18 December 2003. It is, however, useful to refer to some aspects of them to give the flavour of the issues canvassed.

[27] As I have said above five of the grounds of review were directed to apparent bias. Cases such as Vakauta v Kelly [1989] HCA 44; [1989] 167 CLR 568, Hinton v Mill [1991] 57 SASR 97 clearly state counsel's obligations to take the bias point when it arises at the risk of having waived it. Before the coroner, Mr Martinovic squarely raised the issue of his impartiality and bias but having done so after an exchange the coroner said that he would not take it any further. In the course of his final address he acknowledged that there was no basis for the claim and withdrew any allegation of bias. Mr Martinovic nevertheless persisted in pursuing with the issue at the review.

[28] Ground (vi) of the grounds of review contended that there was a reasonable apprehension of bias or a denial of procedural fairness because the coroner "allowed a Crown solicitor, representing Queensland Transport to have standing in the coroner's Court, who ultimately stifled the investigation as to the cause of death through irrelevant objections, when in fact the representative did not have adequate standing".

[29] This was in circumstances in which well prior to the inquest solicitors, then acting for Mr Milu, wrote to the coroner urging an inquest on the basis that there was real concern concerning the issue and non issue of certificate for which the department was responsible. During the course of his cross-examination of the principle police investigator Mr Martinovic asked whether he had "at least investigated" whether the department should be "held accountable under the Criminal Code" for the death of Mr Milu's son.

[30] At the review Mr Martinovic could not advance a rational basis for alleging that the solicitor given leave to appear had acted other than appropriately at the inquest. As I have said, the ground was found to be without substance. The coroner was justified in allowing leave to appear.

[31] At the inquest Mr Martinovic cross-examined Ms Burgess, the driver of a car which had been following the deceased's motor cycle, to the effect that she had no concern about whether the motor cyclist was going to live or die. This was said to have been demonstrated, among other manifestations, by the fact that she had not attended his funeral. When the coroner intervened Mr Martinovic insisted that the question went "towards a guilty conscience". The coroner stated, correctly in my view, that there was no justification for the course of cross-examination and counsel made no submission to the contrary and said he had no further questions.

[32] Mr Martinovic complained at the review that the coroner's had read a copy of Ms Burgess' statement to her, the explanation was that she gave evidence by telephone and did not have a copy of it. These two issues were nevertheless pursued to support grounds of review.

[33] Against this background the law on the circumstances in which it is proper to make a costs order of the kind sought against Mr Martinovic was extensively reviewed by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169. It may be accepted that:

"The authorities do not support the proposition that simply instituting or maintaining a proceeding on behalf of a client which has no or substantially no prospect of success will invoke the jurisdiction. There must be something more, namely, carrying on that conduct unreasonably"; White Industries at 236.

[34] White Industries was approved by the Full court of the Federal Court in Leverick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155. Both of these cases were applied by the Court of Appeal Division of this court in Steindl Nominees Pty Ltd v Laghaifar.

[35] To found a costs order the advocate's conduct must relate to a fault in relation to his duty to the Court; Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 particularly Lord Hobhouse at 143 approved in Steindl Nominees Pty Ltd v Laghaifar at 693 per Williams JA. The grounds for such an order must be clearly proved and the barrister is entitled to the benefit of any doubt; Steindl Nominees Pty Ltd v Laghaifar at 693.

[36] It should be noted, in the light of submissions on Mr Martinovic's behalf, as to the consequences of a cost order that the objective of such an order, although it is penal in its consequences, is to protect the client and indemnify any party who has been injured as a consequence of the conduct; Myers v Elman [1940] AC 282 and Medcalf v Mardell.

[37] In my view, any competent barrister in Mr Martinovic's position giving proper attention to the prospects of success would have concluded that there was no arguable basis for the review; see the reasons published on 18 December. In pursuing the review and arguing it as he did, Mr Martinovic either deliberately ignored his professional obligations or acted recklessly, heedless of them.

[38] Mr Martinovic's position is compounded by the fact that he is, in a sense, the author of his own misfortune at least by the time it came to the review hearing. He, for example, withdrew and abandoned his bias claim before the coroner, it was nevertheless a ground of review and argued before me on 7 November 2003. The coroner was justified in his intervention on behalf of Ms Burgess. Complaints made in the course of his argument on the review that, for example, the coroner had deprived him of the opportunity of pursuing points, were found to be without foundation.

[39] The considerations being those I have canvassed the second and third respondent are entitled to orders that Mr Martinovic pay each of their costs assessed on an indemnity basis.

[40] So far as Mr Milu is concerned the proper order in the circumstances is that there be no order as to costs. I should say that I would not have been inclined to make an order against him in any event. He had a genuine interest in the outcome of the coroner's inquest as did the public. He is impecunious. He reasonably put his trust in his counsel, although as I have found this was misconceived.

[41] I direct that the Registrar forward the papers to the Bar Association or the Barristers' Board as may be appropriate for attention having regard to what I have described as unprofessional conduct by Mr Martinovic.