North Australian Aboriginal Legal Aid Service Inc v Hugh Burton Bradley

naalas' application to adduce further evidence 10 NAALAS sought to rely upon the affidavits of Michael Jones, affirmed on 15 August 2001, and Stephen Southwood, sworn on 16 August 2001. 11 The respondents objected to NAALAS' application to adduce this evidence. They submitted that there was no basis, in principle, for receiving evidence which was said to go to the circumstances under which the proceeding had been commenced, or maintained as distinct from the manner in which the proceeding had been conducted. 12 It is necessary to set out in some detail the contents of the affidavits sought to be relied upon. 13 Mr Jones was, at all relevant times, NAALAS' Principal Solicitor, Crime, having been employed in that capacity since 18 August 1997. He deposed to having received instructions on 28 March 2000 from a juvenile, Tasha Marie Clancy, to apply to Mr Bradley to disqualify himself from hearing a criminal proceeding listed before him that day. The basis of that application was apprehended bias. Mr Jones said that after the application had been made, and rejected, Mr Bradley adjourned the case to 14 April 2000. 14 On 4 April 2000, Mr Jones issued proceedings in the Supreme Court of the Northern Territory seeking to prohibit Mr Bradley from hearing the case. On 7 April, Thomas J adjourned the matter generally to 14 April. It was fixed for hearing before Olney J on 22 May 2000. 15 On 12 April 2000, Mr Jones sent two letters to Cridlands, the solicitors acting for Mr Bradley in the Clancy proceeding. Those letters are of considerable importance to NAALAS' contentions on the costs application. 16 The first letter was in the following terms: "I understand that you act for Mr Bradley. I enclose a letter addressed to your firm. While the letter is addressed to your firm, it is directed to Mr Bradley. I shall be grateful if you would seek your client's instructions." 17 The second letter commenced by referring to a recent ABC media report regarding Mr Bradley's appointment as Chief Magistrate. 18 It then drew attention to a letter sent by Mr Bradley to the Law Society of Northern Territory on 27 March 2000. That letter is set out at par 175 of the primary judgment. Mr Jones noted that in his letter, Mr Bradley had expressed concern at certain comments made by the President regarding his appointment and had claimed that he had at all times believed (albeit erroneously) that the terms upon which he had been appointed were publicly available. Mr Bradley had attached to his letter to the Law Society copies of his Instrument of Appointment and what I described in the primary judgment as the Special Determination, governing his remuneration and conditions. Mr Bradley had asked that it be noted that he had been appointed in accordance with the terms of the Magistrates Act 1977 (NT), until he reached age 65. Importantly, Mr Bradley wrote, in relation to the Special Determination: "[t]he terms were for 2 years (it was and remained the case that after the completion of 2 years I would revert to standard conditions)."(emphasis added) 19 Mr Jones, in his second letter to Cridlands, addressed to Mr Bradley's attention, referred to the reasons which he had given for having refused to disqualify himself in the Clancy case, and commented that these "raised more questions than they had answered". Mr Jones then proffered his own views regarding Mr Bradley's appointment. He observed that the Special Determination was for a period of two years, expiring on 8 March 2000. He also observed that the Special Determination had revoked an earlier Determination relating to the position of Chief Magistrate. That meant, according to Mr Jones, that there was no Determination "back to which to revert" once the period covered by the Special Determination had expired. It also meant, according to Mr Jones, that what Mr Bradley had said in his letter of 27 March 2000 had been incorrect. 20 Mr Jones asserted that, "on its face", the Special Determination gave rise to the suspicion that, despite the terms of the Instrument of Appointment, Mr Bradley's was a two year appointment, subject to re-negotiation by the Executive Government if, and only if, that Government was satisfied with his performance during his first two years in office. According to Mr Jones, such an arrangement would subvert, in a most fundamental way, the independence of the Chief Magistrate. It would also conflict with the terms of the Magistrates Act. As Mr Jones put it: "A reasonable person might suspect that your special determination was merely a device for getting around the restriction of executive government's power to appoint Magistrates for a limited term." 21 Mr Jones commented that Mr Bradley might dispute some or all of the allegations set out in his letter. He invited Mr Bradley to set out his own version of the facts. He went on to pose 16 questions which he said remained unanswered. These questions were extremely detailed. Because of the importance that NAALAS placed upon Mr Bradley's alleged failure to respond to them, I set them out in full. "1. How was the level of remuneration reflected in the 27 February 1998 determination arrived at? It seems to us $193,602 plus whatever salary sacrifice was involved in upgrading to a Calais is unlikely to have been a figure plucked from the air. Where did it come from? By reference to what other position, or standard or person was it arrived at? With whom was it negotiated? 2. In the reasons you gave for refusing to disqualify yourself you said the person in charge of the Office of Courts Administration was "the person with whom I discussed my appointment". Did you mean by this to convey that you did not discuss your appointment with anyone else from the Government? If not, with what other person or persons did you discuss your appointment and what were the substance of those conversations? 3. In your letter to the Law Society you say, "it was and remained the case that after the completion of two years I would revert to standard conditions". Your contention is contradicted by clause (a) of your special determination; there were no "standard" conditions to which to revert because your determination unambiguously revoked them. How do you explain this? With whom was it agreed that you would revert to "standard" conditions and where is that agreement recorded? 4. Your appointment was made at a time when Mr Shane Stone was Chief Minister and held the Attorney-General's portfolio. Mr Dennis Burke is Mr Stone's successor in both these positions. From an interview recorded by Murray McLaughlin of the ABC on 14 March 2000 with Mr Burke it does not seem Mr Burke agrees with your assertion that it was agreed at the time of your appointment that, after the first two years in office, you would "revert" to remuneration and allowances recommended by the Remuneration Tribunal. In the interview, Mr Burke said: It was an arrangement put in place by the previous Chief Minister. I inherited the arrangement. To my mind there is nothing untoward about the arrangement, it's simply from a perception point of view I don't believe in fixed terms for chief magistrates. He was employed on a fixed term that has now expired and he will be employed on an open term with a package as recommended. Later in the interview Mr Burke said: All I know is the Chief Magistrate was employed on a two year term… How is the ordinary reasonable person to understand the conflict between your recent claims and what Mr Burke has had to say on the matter? 5. Mr Burke's view of the original arrangement concerning yourself appears to be shared by the Remuneration Tribunal itself in its Report and Recommendation No.1 of 1999 entitled Magistrates of the Northern Territory it states: On 9 March 1998 a two-year term appointment was made to the position of Chief Magistrate. In Attachment "A" to the report yours is described as "a short term special appointment". (The report also reveals it was initiated by a letter to the Tribunal from the Chief Minister dated 10 March 1999.) How is the ordinary reasonable person to understand this conflict between your recent claims and the Remuneration Tribunal's understanding of the nature of your employment? Will you produce for inspection your submissions and other communications with the Remuneration Tribunal? 6. Given that the level of remuneration established by your special determination was, on its face, at least $37,000 more that [sic] recommended by the Remuneration Tribunal, why did you agree (if you did) to revert to "standard conditions" at the end of two years? The question that must be on everybody's lips is: Why would he have agreed to take a big drop in salary after two years, to swap the luxury Calais for an ordinary sedan and go back to tourist class travel? (In fact, it seems that you have recently dropped from a salary of $206, 186 to a base salary of $163,630.) Why shouldn't reasonable people conclude from the arrangements actually documented that Mr Stone must have created in your mind some sort of expectation about other appointments or positions at the end of two years, a promise upon which he can no longer deliver because he has lost the leadership and now is not even a member of the Legislative Assembly? You can dismiss all this as scurrilous, but let me assure you it is what people believe and you should meet it by evidence and reasoned argument -not silence or personal criticism of those asking the questions. 7. Given that in early 1999 Steve Southwood went to see you specifically for the purpose of speaking to you about rumours yours was a short-term appointment, how do explain him leaving your chambers without any knowledge that the 27 February 98 determination was for only two years? If, as you suggest in your reasons for refusing to disqualify yourself, he had the opportunity to read your special determination, why would it not have been obvious to you that he had not done so? After all, given the purpose of his visit, had he read the document then, for certain, he would have questioned you about why only two years and what were your expectations after that time. Yet nothing like this occurred as you, in the reasons you gave for not disqualifying yourself, reveal -if only obliquely. 8. Why did you wait until 27 March 2000 to release your special determination? On 14 March 2000 the ABC investigative journalist Murray McLaughlin spoke with you to find out about the terms of your appointment. You did not disclose them to him. The 7.30 Report which was so damaging to you and the office of Chief Magistrate was televised nationally on Thursday 16 March 2000. You watched it as it went to air in the Northern Territory. The segment of the program concerning you was introduced as a story about the "secret pay deal" between the Northern Territory and its Chief Magistrate. During the story the words "secret, special determination", "secret contract", "special and secret deal" and "secret deal" were used to describe your pay package. In addition, it was claimed your special determination had not been tabled and even the Clerk of the Legislative Assembly was unable to obtain a copy. The need to set the record straight by releasing the terms of your appointment was clear and immediate. You waited another 11 days before doing so. Indeed, it was only after you received the Chief Justice's letter of 22 March 2000 that you reacted, advising the Law Society and others that you would release the terms and conditions of your appointment during the following week. The impression one could gain from this sequence of events is that it was the unbearable pressure applied by the Judges and Master of the Supreme Court which led to the disclosure of your special determination and not, as you appear to suggest in your reasons for refusing to disqualify yourself, a decision taken "independently", without having "spoken to anyone else", as if there was and had never been a secret about it. I pause to note here that when you dealt with my application to disqualify yourself from the Clancy case, no-one else knew about the Chief Justice's letter. Its existence was only revealed on 6 April 2000 when your counsel, Mr Reeves QC, faxed a copy of it to my counsel by way of disclosure of the basis of your impending application to Justice Thomas to disqualify herself from hearing the prohibition proceedings against you on the grounds of apprehended bias. It is highly improbable the Chief Justice would have convened a meeting of the Judges and Master on the evening of 21 March 2000 to consider the issue of the recent publicity surrounding your appointment without speaking to you first. It is much more likely that he spoke to you beforehand and, not being able to get a satisfactory response, convened an extraordinary meeting which then agreed he should write to you in the formal and unequivocal terms which he did. Once again the perception is reinforced of you wishing to keep your special determination secret. 9. How do you explain these delays in responding to the 7.30 Report allegations consistently with your claim that there was no secrecy regarding the terms of your appointment? 10. In his letter to you, the Chief Justice advised the Judges and Master thought you should make "full public disclosure of [the terms and conditions upon which you were appointed as Chief Magistrate] accompanied by any documents relating to them"(my emphasis). In your reasons for refusing to disqualify yourself you said: "There was no secrecy regarding the circumstances of my appointment." There was no secrecy regarding the terms of my appointment? So far you have only released information about terms, and then only those contained in your special determination. There must be other documents in your possession or control relating to the terms and conditions of your appointment other than your special determination. What is in those documents? Why have you not made them public? When will you do so? 11. Consistently with your statement on the bench that there was no secrecy regarding the circumstances (as contrasted to "terms") of your appointment, will you release the documents in your possession or control relating to those circumstances? 12. In your letter to the Law Society you say "my salary includes superannuation". How much of your salary is superannuation? How was it possible for you to opt out of the obligation to pay superannuation? Where is the agreement recording that you forewent superannuation contributions from the NT? Do you say you received no superannuation benefits from the NT up to and including 8 March 2000? If not, what have you received? 13. Did you telephone Mr Southwood on 26 March 2000? Why? Did you say to him words to the effect: "I want to avoid a conflict between my recollection of what occurred and yours"? If so, why were you concerned to avoid conflict between your recollection and his? 14. If you have reverted to Remuneration Tribunal conditions as you claim, how is it that you are still driving a Holden Calais supplied by the Northern Territory? 15. We have not been able to obtain a copy of the Administrator's determination (if any) under which you are currently paid. What are its terms? Will you provide a copy of it? 16. Are you prepared to disclose to me all documents relating to the circumstances of your appointment? If not, why not?" 22 Mr Jones' letter concluded with the following exhortation: "Of course, you can choose not to answer these questions. But the perceptions I have raised remain and, meanwhile, you continue to sit on cases in which the NT or one of its emanations is a party and to deal with sentencing property offenders at a time when the executive government's strong views about punishing offenders and its dissatisfaction with the criminal justice system is well known. In my view, if you choose not to make full disclosure now and answer the questions raised in this letter fully and fairly you should stand down from hearing cases of this kind until the prohibition proceedings have been dealt with by the Supreme Court." 23 The response on behalf of Mr Bradley was swift. On 13 April 2000, David Farquhar, a partner at Cridlands, wrote to Mr Jones in the following terms: "We acknowledge receipt of your letter of 12 April 2000 and as requested, we immediately passed it on to Mr Bradley. The writer feels some unease because it appears that the letter may be an ex parte communication to the Magistrate about a matter that is before him. As the letter may be interpreted to relate to the judicial functions of the Chief Magistrate we have not sought his instructions about the matters raised by you." 24 NAALAS submitted that Mr Jones' letter of 12 April 2000 was, in substance, a letter of demand, which called for a reasonable response from Mr Bradley. It submitted that no such response had been forthcoming. 25 Mr Jones said that the Clancy proceeding had been settled on 19 April 2000 on the basis of a consensual prohibition order. According to him, that left serious questions about the validity of Mr Bradley's appointment unanswered. In those circumstances, he contended, NAALAS had had no choice but to institute this proceeding, which it did on 20 April 2000. He said that had Mr Bradley provided answers to the questions set out in his letter of 12 April 2000, that may never have occurred. 26 The next matter raised by Mr Jones in his affidavit amounted to a complaint that the respondents had failed to provide important documents which NAALAS had legitimately sought. He contended that this failure had contributed to the proceedings having been continued. That complaint was summarised in pars 16 and 17: "16. Subpoenas issued by the Plaintiff in the Supreme Court case and in this proceeding (when it was before the Supreme Court) had sought documents relating to the terms and circumstances of the First Respondent's appointment and were returnable on 7th April, 2000, 14th April, 2000, 19th April, 2000, 28th April, 2000, 3rd May, 2000 and 5th May, 2000. 17. On each of those occasions, the Respondents declined to produce any documents relating to the terms or circumstances of the First Respondent's appointment in response to those subpoenas, other than for one occasion when the First Respondent provided a copy of a document dated 30th November, 1999 a true copy of which is incorporated in Volume 6 of the Court Book in this proceeding as Court Book Document 170, at pages 523 to 524." 27 Finally, Mr Jones noted that Mr Bradley's appointment under s 4 of the Magistrates Act had not been Gazetted until 26 May 2000, some two years and three months after the appointment was made. By implication at least, that called for an explanation. 28 NAALAS also sought to rely upon the affidavit of Mr Southwood, one of her Majesty's Counsel for the Northern Territory, and the President of the Law Society between September 1997 and September 1999. That affidavit was said to be relevant for two reasons. 29 First, it was said to demonstrate that during the course of a conversation that Mr Bradley had had with Mr Southwood in late 1998 or early 1999, he had lied, or at least been less than frank, about the terms of his appointment. Mr Southwood said that he had initiated that conversation as a result of certain rumours that were then circulating suggesting that Mr Bradley had been appointed for a fixed term of two years. He said that Mr Bradley had assured him that this was not the case. However, Mr Southwood said that Mr Bradley had not mentioned the fact that he had negotiated a special loading of 10 %, in addition to his normal salary, to compensate him for what was described as "a short term appointment". 30 Second, Mr Southwood's evidence was said to be relevant because it demonstrated that during the course of a conversation between them on 26 March 2000, Mr Bradley had lied. Mr Southwood said that Mr Bradley had telephoned him on that day in response to certain media comments which had been made regarding the terms of his appointment. Mr Southwood said that Mr Bradley told him that he wished to avoid a conflict between their respective memories of their earlier conversation. Mr Bradley suggested to Mr Southwood that in that conversation, he had disclosed the background and circumstances of his appointment, and that Mr Southwood had been satisfied with what he had been told. Mr Southwood went on to say that during the telephone conversation, Mr Bradley told him: "It was always to be the case that I would get the package for two years and then it would revert back to the Remuneration Tribunal determinations." Mr Southwood said that this was the first time that Mr Bradley had mentioned that his original remuneration had been fixed for two years, and that after that period his salary would revert to that fixed from time to time by the Remuneration Tribunal. 31 NAALAS' attempt to rely upon Mr Southwood's evidence to support its claim that it had been provoked by Mr Bradley's conduct into instituting this proceeding was fraught with difficulty. There was nothing in his affidavit to link either of the conversations to which he deposed to NAALAS' decision to commence the litigation. Mr Southwood made no mention of having told Mr Jones, or anyone else associated with NAALAS, the substance of either conversation. Nor, in his affidavit, did Mr Jones. 32 It is true that, in his letter to Cridlands of 12 April 2000, Mr Jones alluded to Mr Southwood having spoken to Mr Bradley in early 1999 and again on 26 March 2000 (see questions 7 and 13). However, whether that information contributed significantly to the decision to commence the litigation is not apparent from the letter, nor, as I will explain, from Mr Jones' evidence. 33 Counsel for NAALAS, recognising that there was an important deficiency in the affidavits of Mr Jones and Mr Southwood, sought leave to ask them additional questions in order to overcome that difficulty. Leave was granted. 34 The substance of Mr Jones' additional evidence was that on 28 March 2000, he received instructions to apply to Mr Bradley to disqualify himself from hearing the Clancy matter. As noted earlier, Mr Jones made that application, and it was refused. He said that in the days that followed, he had a number of conversations of an informal nature with Mr Southwood. He recalled one particular conversation that had occurred on 4 April 2000 at Mr Jones' home. He remembered that date because he had sworn and filed an affidavit in the Clancy matter earlier on that day. That affidavit had contained a reference to his home address. 35 Mr Jones said that at about 6:00 that evening, Mr Southwood appeared at his back door. He said that he was taken by surprise because Mr Southwood had never been to his home, and he had no idea how he had discovered where he lived. Mr Southwood had explained that he had obtained the address from Mr Jones' affidavit. 36 Mr Jones continued: "…He then, without any inquiry from me, said, as best I can recall, 'Bradley's a blinking liar' and I took it to be a reference to material that he had read in connection with the affidavit." 37 Mr Jones was asked whether the could recall what Mr Southwood said after referring to Mr Bradley in that manner. He replied: "Not in any clear detail, but I do recall him saying that he had talked with Mr Bradley about his appointment sometime ago, a year or two earlier, and, as best as I can recall, Mr Bradley had made no reference to it, to your [sic] appointment." 38 Mr Jones said that he was aware that Mr Southwood was engaged in preparing an affidavit in relation to the proceeding concerning the validity of Mr Bradley's appointment. However, he could not recall specifically speaking with Mr Southwood about either of his conversations with Mr Bradley in any greater detail. He was then asked whether he had taken into consideration, in deciding to proceed with the challenge to Mr Bradley's appointment, what Mr Southwood had said to him on 4 April 2000. He replied: "It certainly reinforced my view that it was right to challenge the appointment. I was convinced that it was right to do so, although it was a very difficult decision to make. But I was considerably relieved that such a senior member of the profession, as Mr Southwood, would offer the comment that he did. It gave me the clear idea that I was on the right track." 39 Under cross-examination, Mr Jones acknowledged that, in his affidavit of 15 August 2001, he had not mentioned his meeting with Mr Southwood. 40 Mr Jones was pressed about his claim that the respondents had "declined" to produce any documents relating to the terms of Mr Bradley's appointment in response to the subpoenas issued by NAALAS and returnable on the dates set out in par 16 of his affidavit. He acknowledged that what he had deposed in pars 16 and 17 was not accurate, and accepted that those paragraphs were misleading. 41 Mr Jones also agreed that, on the morning of 20 April 2000, he had been interviewed by the ABC. In that interview, he had commented strongly upon the personal integrity of Mr Bradley. He had also spoken of the Bradley appointment as an illustration why the CLP Government should not be re-elected. 42 Finally, Mr Jones acknowledged that, in advising NAALAS that the present proceeding should be instituted, he had acted upon the advice of Mr Maurice QC and Mr Tippett, who had at one time been retained to act in the matter. 43 Mr Southwood was also asked a number of additional questions. In particular, he was asked whether he could recall, prior to May 2000, having had a discussion with Mr Jones regarding the circumstances surrounding the appointment of Mr Bradley. He replied: "I'm uncertain about the date. I don't recall having a discussion with Mr Jones prior to providing either he or Mr Tippett with a draft affidavit which was in or about May of - April/May 2000." 44 Having regard to that answer, it was scarcely suprising that Mr Southwood was not cross-examined. 45 In the end, there was virtually no evidence to suggest that anything said to Mr Southwood by Mr Bradley had provoked, or contributed significantly, to the decision by NAALAS to institute this proceeding. At its highest, Mr Jones regarded what Mr Southwood told him as reinforcing a view that he had already formed, that it was right to challenge the validity of Mr Bradley's appointment. 46 The only basis upon which Mr Southwood's evidence was said to be relevant was that it was causally linked to the decision to commence this litigation. The foundation for that contention was not established. Accordingly, I ruled Mr Southwood's evidence to be inadmissible.

was naalas "provoked" into instituting this proceeding?

47 The evidence of Mr Jones was received (save for certain paragraphs of his affidavit which were excluded on evidentiary grounds) because I accepted that there may be circumstances in which a defendant has conducted himself in such a manner that he has led the plaintiff erroneously to believe that he has a good cause of action, and so induced him to bring the proceeding. In such a case, a court may order either that no costs be paid, or that a proportion only of the costs should be awarded. That proposition finds support in Ritter v Godfrey [1920] 2 KB 47; Davey v Bullock (1891) 17 VLR 3 and Merrett v Schuster [1920] 2 Ch 240. There may also be circumstances where a defendant has done something connected with the institution of, or conduct of, the proceeding which is calculated to cause unnecessary litigation or expense. Again in such a case, the same consequences may follow: Bostock v Ramsey Urban Council [1900] 2 QB 616 and Donald Campbell and Co v Pollak (supra). These principles are discussed in N Williams, Supreme Court Civil Procedure, Victoria, 1986 at 326.

48 There is a helpful discussion of the circumstances under which a successful party may be deprived of its costs, in whole or in part, in Cummings v Lewis (unreported, Federal Court of Australia, 29 May 1992). There, Wilcox J reviewed the principles applicable to the exercise of the Court's discretion in relation to costs. His Honour recognised that the conduct of the successful party leading to the litigation may be relevant to whether or not that party receives costs.

49 NAALAS claims that not only should it not be required to pay costs, but that it should recover costs, and on an indemnity basis. It bases that claim upon the contention that the respondents, by their conduct, "provoked" this litigation, or at least caused it to be continued. I am unaware of any authority which supports the proposition that an unsuccessful litigant may recover his or her costs in such circumstances, let alone that such costs should be paid on an indemnity basis. Nonetheless, I am prepared to accept, for present purposes, that there might be circumstances which could justify orders of that type.

50 The question to be answered is whether either respondent, by anything said or done, provoked NAALAS into instituting or maintaining this proceeding. 51 NAALAS identified three acts by which it contended the Northern Territory had provoked it into commencing this proceeding. These were: · the fact that the Northern Territory did not, in its defence to NAALAS' statement of claim, plead that there had been an "administrative error" on its part in arranging for Mr Bradley to be remunerated in accordance with the Special Determination, which included a 10% loading for a "short term appointment" when no such appointment was in fact made; · the failure of the Northern Territory to produce relevant documents regarding Mr Bradley's appointment until at last compelled to do so by Wilcox J when its claim to public interest immunity was rejected. The documents in question were not made available until early August 2001, which was shortly before the trial commenced; and · certain comments made by Mr Burke, the former Chief Minister, in April 2000, when he described Mr Bradley's appointment as a "fixed term appointment". 52 NAALAS identified two acts by which it contended that Mr Bradley had provoked the commencement of this litigation. These were: · his failure to respond in a reasonable manner to Mr Jones "letter of demand" of 12 April 2000; and · what were said to be lies on his part in his letter of 27 March 2000 to the Law Society. 53 In my view, none of the matters relied upon by NAALAS can be said to have "provoked" or contributed significantly to NAALAS' decision to commence this proceeding. 54 Dealing first with the position of the Northern Territory, it is true that it did not, in its defence, proffer an explanation for the disconformity between the Special Determination and the Instrument of Appointment along the lines of that which I found, in the primary judgment, to be the likely reason for what had occurred. In my opinion, it was not obliged to do so. It was entitled to plead a general denial of the allegation of improper purpose made by NAALAS. It was also entitled, as it did, at the conclusion of the evidence, to proffer the explanation that what had occurred was the result of "administrative error" rather than some form of conspiracy. (I interpolate that the term "administrative error", which I used at par 483 of the primary judgment, was plainly intended to reflect the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, which I set out in the preceding paragraph.) 55 I have already dealt with NAALAS' claim that it was denied evidence to which it was entitled by the refusal of the respondents to produce any documents, in compliance with subpoenas, relating to the terms of Mr Bradley's appointment. 56 The documents which were eventually produced in response to the orders of Wilcox J were considered by NAALAS to support its case of improper purpose. Had those documents been produced earlier, it is most unlikely that they would have induced NAALAS to abandon this proceeding. 57 Finally, as regards the Northern Territory, there is little doubt that Mr Burke's ill-informed comment inflamed an already difficult situation. However, I am not persuaded that it provoked, or contributed significantly, to NAALAS' decision to embark upon the challenge to Mr Bradley's appointment. In my view, Mr Jones was set upon that course almost from the moment that he first received instructions to ask Mr Bradley to disqualify himself from hearing the Clancy matter. 58 I accept that Mr Jones had very real concerns about the potential threat to judicial independence posed by Mr Bradley's appointment. However, I gained the distinct impression from his comments during the course of the ABC interview that there was a degree of personal hostility on his part towards Mr Bradley. I do not accept that he acted with an appropriate degree of objectivity and detachment in advising NAALAS to commence this proceeding. I note, of course, that Mr Jones has expressed regret for having spoken in such strong terms about Mr Bradley's integrity. 59 So far as Mr Bradley's conduct is concerned, I am not persuaded that his failure to respond specifically to the letter of 12 April 2000 provoked or contributed significantly to NAALAS' decision to commence this proceeding. The letter was, on any view, couched in extraordinary terms. In my opinion, it was inappropriate for Mr Jones to have written a letter in those terms to Mr Bradley, particularly while proceedings were on foot in the Supreme Court to have him disqualified for bias. I do not regard it as suprising that Mr Bradley did not respond to Mr Jones' interrogatories. The proper venue to address any concerns legitimately expressed regarding his appointment was the Supreme Court. 60 Finally, I am not persuaded that what Mr Bradley wrote to the Law Society on 27 March 2000 should be regarded as a lie, or as having been misleading, or less than frank. I accept that, on its face, some of what he said in that letter may be difficult to reconcile with comments contained in his letter to the Remuneration Tribunal of 16 February 2000. However, I do not believe that this warrants the conclusion that he lied. At its highest, it suggests that his use of language was infelicitous. 61 In order to explain my reasoning, it is necessary to consider the statements made by Mr Bradley in these two letters with some care. 62 In his letter to the Remuneration Tribunal, Mr Bradley accepted that his recollection of the circumstances surrounding his appointment did not entirely accord with "the documentation". He acknowledged that there had been an increment "arranged by Mr Flynn" which reflected an allowance for a "short term appointment". He accepted that there was no basis for that allowance to be continued. 63 In his letter to the Law Society, Mr Bradley stated, correctly, that the Special Determination was for two years. He went on to say that it "was and remained the case" that after that period, he would "revert to standard conditions". 64 NAALAS submitted that in that letter to the Law Society, Mr Bradley had implied that the Special Determination contained a term to the effect that, upon its expiry, he would revert to standard conditions (whatever he may have meant by that expression). However, it submitted that Mr Bradley had no basis for making that assertion as the Special Determination was silent upon the point. 65 NAALAS also submitted that what Mr Bradley said in his letter to the Law Society could not be reconciled with what he had written to the Remuneration Tribunal just a few weeks earlier. 66 There is no substance in either of these contentions. 67 Mr Bradley's letter to the Law Society should not be read as containing an assertion, express or implied, regarding the terms of the Special Determination. His comments reflect little more than his belief (incidentally shared by some others within the Attorney-General's Department) that when the Special Determination expired, he would revert to normal terms of appointment. Whether he was correct in that belief is not to the point. 68 Upon careful analysis, there is no inconsistency of any kind between what Mr Bradley wrote in the two letters. He was addressing different matters, and the two statements can be satisfactorily reconciled. 69 NAALAS submitted that the inferences for which it contended, namely that Mr Bradley had lied, or been less than frank with, the Law Society, could more readily be drawn because he chose not to give evidence in this proceeding: Jones v Dunkel (1959) 101 CLR 298. NAALAS also relied upon the observations of Handley JA in Commercial Union Assurance of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 in support of that contention. 70 There is something to be said for NAALAS' submission regarding the way that Mr Bradley's letter to the Law Society should be viewed having regard to his reluctance to explain what he meant when he wrote what he did. However, even making allowance for that fact, there is no warrant, in my view, for concluding that he lied. 71 I should add that even if I were to conclude that Mr Bradley had lied in that letter, there is no evidence to suggest that any such lies provoked or contributed significantly to the decision by NAALAS to commence this litigation. Mr Jones himself did not make any such claim.

Other conduct on the part of the respondents said to justify a departure from the usual costs order 72 NAALAS identified a number of matters which it contended justified an order that the respondents pay its costs. These included: · the findings made in the primary judgment regarding the manner in which Mr Bradley's appointment, or at least the fixing of his remuneration, was mishandled; · the finding which NAALAS submitted I had made that Mr Stone had lied; · the criticisms which I had levelled at Mr Bradley for having continued to receive a 10% loading on his salary, based upon a "short term appointment" when no such appointment was in fact made. 73 I can deal with these matters briefly. It is true that the Northern Territory was subjected to criticism in the primary judgment for the manner in which it had implemented Mr Bradley's appointment. However, NAALAS did not challenge the validity of the Special Determination. Whatever deficiencies were exposed in the manner in which it was brought into existence did not effect the validity of the appointment itself. However ill-advised the Northern Territory may have been to contemplate the introduction of fixed term appointments for Magistrates, it was open to it to introduce legislation to bring about that end. However ineptly Mr Bradley's appointment was handled, nothing said or done by the Northern Territory or its officers amounted to conduct of a type that should disentitle it from receiving its costs. 74 NAALAS' contention that I had found that Mr Stone had lied was contained in its written submissions, and was not developed in oral argument. The answer to that submission is that I made no such finding. Though I found myself unable to accept certain parts of Mr Stone's evidence (see par 284 of the primary judgment), I did not express any conclusion to the effect that he had deliberately lied. Indeed, in par 285, I referred to his "faulty recollection". 75 I should add that senior counsel for NAALAS did not suggest to Mr Stone, in cross-examination, that he had lied. Nor did he invite me, in its closing submissions, to reach that conclusion. 76 With regard to my criticism of Mr Bradley for having accepted a component of the Special Determination designed to compensate him for a "short term appointment" when no such appointment was in fact made, I note that this is the subject of a Notice of Contention in the forthcoming appeal to the Full Court in this matter. 77 It was submitted, on behalf of Mr Bradley, during the course of the costs application, that there was no evidence that he was ever aware of the fact that, included within his "contract salary" of $193, 602, there was a loading intended to compensate him for a short term contract, with no provision for long service leave. Mr Flynn's letter of 7 January 1998, which I set out in par 99 of the primary judgment, spoke only of the "contract" salary, and did not break it down into its individual components, though it noted that the "contract" would be for a period of two years and six weeks.. The breakdown of that salary was contained only in a Ministerial sent by Mr Flynn to Mr Stone on 12 January 1998. That breakdown was $156, 674 (the existing salary of the Chief Magistrate), $27, 261 (being an addition of 17.4% of salary as compensation for superannuation contributions foregone), $15, 667 (the loading for a "short contract", with no long service leave), less $6, 000 (salary sacrifice for the difference in costs between a Camry and a Calais motor vehicle). Senior counsel for Mr Bradley submitted that there was no evidence that his client had ever seen this Ministerial. 78 It is not appropriate that I say anything in detail regarding the criticism which I levelled at Mr Bradley. It is sufficient to observe, as I did in argument during the costs application, that I inferred that Mr Bradley must have been aware, from his negotiations with Mr Flynn, that he was being compensated for a "short term appointment". It will be recalled that during those negotiations which took place prior to 11 December 1997, both Mr Flynn and Mr Bradley acted upon the assumption that the appointment as Chief Magistrate would be for a fixed term of two years. Whether Mr Bradley knew the precise amount of the loading included in his salary of $193,602 is not to the point. He must have been aware that the difference between that figure, and the normal salary of $156,674 paid to the Chief Magistrate, could not be accounted for simply by the payment of an additional sum in lieu of government contribution towards superannuation. Once it become clear that he was not to be appointed on a fixed term contract, he was not entitled to any additional payment to compensate him for a short term appointment. I note from what I was told by counsel during the costs application that that amount has still not been re-paid. 79 Even accepting that my criticism of Mr Bradley for having accepted this loading may be thought to reflect adversely upon him, there is no basis, in my view, for requiring him to pay NAALAS' costs. Nor does his conduct in retaining these monies in the circumstances set out above justify denying him his costs in this proceeding, provided that he is otherwise entitled to them.

naalas' "issues" claim 80 NAALAS submitted that, having been successful in resisting the challenges to its application based upon standing and justiciability raised by the Northern Territory, and the challenge based upon justiciability raised by Mr Bradley, it should either receive the costs associated with dealing with these issues, or at least not have to pay the entirety of the respondents' costs. 81 A successful party who has failed on certain issues may not only be deprived of the costs of those issues but also be ordered to pay the other party's costs in relation to them. In this context, "issue" is not used in the technical pleading sense, but refers to any disputed question of fact or of law: Cretazzo v Lombardi (1975) 13 SASR 4 at 12; Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 222 and Ruddock v Vadarlis [2001] FCA 1865 at par 11. 82 In my view, NAALAS is entitled to some reduction in the amount of costs which it would otherwise be required to pay the respondents by reason of its having had a measure of success, on these issues, in this proceeding.

Naalas' claim that this is public interest litigation and that there should therefore be no order as to costs 83 NAALAS submitted that its challenge to the validity of Mr Bradley's appointment should be regarded as "public interest litigation" and, though unsuccessful, should be dealt with in accordance with the principles laid down by the majority in Oshlack v Richmond River Council (1998) 193 CLR 72. It submitted that, as a result, there should be no order as to costs. 84 In Oshlack, Stein J, at first instance, declined to make an order for costs in favour of a successful defendant in what was said to be "public interest litigation". The New South Wales Court of Appeal reversed that decision in respect of the Council's costs. In the High Court, Gaudron, Gummow and Kirby JJ determined that the appeal should be allowed, and reinstated the costs order made at first instance. Brennan CJ and McHugh J dissented. 85 In their joint judgment, Gaudron and Gummow JJ noted that the primary judge had reasoned from a starting point which favoured costs orders against the appellant, as the unsuccessful party. Having characterised the nature of the litigation as concerned with public rather than private rights, and having found that "something more" than this characterisation had been demonstrated, "special circumstances" existed to justify a departure from the usual rule. Among the additional factors identified as amounting to that "something more" were the following: · the appellant's pursuit of the litigation was motivated purely by his desire to ensure obedience to environmental law, and to preserve the habitat of endangered fauna, a "worthy motive"; · a significant number of members of the public shared his stance; · the basis of the challenge was arguable and had raised an resolved "significant issues" as to the interpretation of statutory provisions relating to the protection of endangered fauna. 86 Their Honours concluded that Stein J had not taken into account any considerations extraneous to the sound exercise of discretion in relation to costs and that accordingly the Court of Appeal ought not to have reversed his decision. 87 Kirby J concluded that it was a clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of the environmental law before the Land and Environment Court. It followed that a rigid application of the compensatory principle in costs orders would discourage, frustrate or even prevent the achievement of that purpose. His Honour considered that it was legitimate to have regard to the fact that litigation was pursued in the public interest when determining whether to award costs against an unsuccessful applicant. He acknowledged that it was difficult to define with precision what was meant by " public interest litigation", described by other members of the Court as a "nebulous" consideration of a social, economic or political kind. However, his Honour was not persuaded that there was any basis for interfering with the orders made by Stein J. 88 NAALAS also referred to the decision of the Full Court in Ruddock v Vadarlis (supra), where Black CJ and French J recognised that public interest litigation could give rise to "special circumstances" that justify a departure from the usual order that the unsuccessful applicant pay the successful respondent's costs. NAALAS referred in particular to par 13 of the joint judgment where their Honours said: "… Where, for example, declaratory relief is sought because of genuine uncertainty about the interpretation of a document or a statute, it will not explain why the successful party should be reimbursed at the cost of its opponent where the legal issue is novel and has consequences extending beyond the particular litigation. The alternative rationale for the compensation principle is simply that the winner should not have to suffer financially for vindicating its rights. The criticism of this intuitively attractive approach is again that it does not necessarily follow that the obligation to compensate the winner should be imposed on the losing party. For the losing party may have had very good legal grounds for its position and have conducted itself in the litigation in an entirely reasonable way. Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness. Moreover it may set up a significant barrier against parties of modest means even if the contemplated claim has substantial merit: See Tollefson, "When the 'Public Interest' Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) 29 University of British Columbia Law Review 303 at 309-311; see also McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article" (1996) 30 University of British Columbia Law Review 309. These criticisms will not justify a global modification, in public interest cases, of the usual rule that costs follow the event. They do however indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise." 89 NAALAS submitted that an order that it pay the respondent's costs might deter parties in a similar position from bringing public interest cases. It submitted that the following factors, referred to by the majority of the Full Court in Ruddock, were equally applicable in the instant case: · the proceedings raised a number of novel and important questions of law, including questions of standing, justiciability and constitutional law; · whether Mr Bradley was appointed for what was, in effect, a fixed term had a tendency to affect judicial independence, a matter of high public importance; · NAALAS had been justified in bringing and maintaining these proceedings on the basis of the facts known to it; and · there was no financial gain to NAALAS in bringing its claim. 90 NAALAS submitted that the effect of Oshlack and Ruddock was that, once it was accepted that this was "public interest" litigation, there was no basis whatever for ordering it to pay costs to the respondents. Indeed, NAALAS submitted that any such order would be impossible to reconcile with the principles laid down in these cases, and would constitute appealable error on my part. 91 I am unable to accept that submission. I do not understand Oshlack or Ruddock to approach the matter of costs in that way. In both cases, the majority considered that the fact that the litigation had been brought in the public interest was relevant to the question of costs. However, that fact was not regarded as being decisive. 92 In Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975, a Full Court was confronted with a submission similar to that advanced before me on behalf of NAALAS. It rejected that submission and concluded that Oshlack did not bear the interpretation sought to be placed upon it by the unsuccessful applicant. 93 Likewise, in South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management [No 2] (1998) 72 ALJR 1008, Kirby J explained that nothing in Oshlack required that every time an individual or body brings proceedings asserting a defence of the public interest, and protection of the environment, a new costs regime is to apply which exempts that individual or body from the conventional rule with regard to costs. His Honour said that to suggest that this was so would be to misread what the Court decided in Oshlack. He also noted that Oshlack had turned in part upon the terms of the particular legislation in New South Wales facilitating an increased opportunity for public involvement and participation in environmental planning, and enlarging the standing rules to permit that to be done. 94 See also the decision of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 at par 11, which is to the same effect. 95 I accept that there are features of the present proceeding which can fairly be described as having the hallmarks of "public interest litigation". At the same time, there are absent from this case a number of the factors which led Stein J, and the majority in Oshlack, to hold that there should be no order for costs in that case. The same may be said of the factors identified by the majority in Ruddock as warranting the conclusion that there should be no order for costs in that case. 96 Not all of the matters raised in this proceeding involved novel questions of law. Nor are all of the matters raised of high public importance. Much of the case turned upon a series of factual allegations regarding the circumstances underlying Mr Bradley's appointment which NAALAS was unable to prove. In addition, the constitutional arguments that NAALAS advanced were unsuccessful, as was its attempt to invoke the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 97 There is a case for making an adjustment to the amount of costs ordered against NAALAS to reflect some of the considerations referred to in Oshlack and Ruddock. There is no justification, however, in the present case, for an order that the parties bear their own costs.

naalas' contention that mr bradley ought not receive costs 98 NAALAS submitted that whatever order might be made in relation to the Northern Territory's costs, there was no justification for an order that it be required to pay any of Mr Bradley's costs. 99 There were two bases upon which that submission rested. First, it was contended that Mr Bradley ought not to have been separately represented because his interests were identical to those of the Northern Territory. Second, it was contended that Mr Bradley was not entitled to any order for costs because he had been completely indemnified by the Northern Territory. 100 The first contention is without merit. NAALAS originally pleaded that both Mr Bradley and the Northern Territory were parties to an agreement which reflected an improper purpose on the part of the Northern Territory in relation to Mr Bradley's appointment as Chief Magistrate. The allegation of improper purpose was ultimately withdrawn against Mr Bradley, at least so far as the pleadings were concerned. However, in correspondence between Mr Jones and Mr Farquhar, NAALAS made it clear that if the evidence disclosed that Mr Bradley was in fact party to such an agreement, it would invite the Court to make a finding to that effect. In those circumstances, it is difficult to see how any legal practitioner could have acted on behalf of both respondents. The potential for conflict of interest was plain. Even the question whether Mr Stone or Mr Bradley should give evidence could not be addressed without consideration being given to the different interests of each of the respondents. 101 The contention that Mr Bradley is not entitled to costs because he was fully indemnified from the outset by the Northern Territory is equally without merit. NAALAS submitted that if Mr Bradley were to be awarded costs, he would be under no obligation to re-pay the Northern Territory for the legal fees which it had met on his behalf. Mr Farquhar, unnecessarily in my view, made it clear that any costs recovered from NAALAS would be re-paid to the Northern Territory. 102 NAALAS also submitted that the principles which underlie the making of orders for costs, as set out in Latoudis v Casey (1990) 170 CLR 534, and in Ruddock, dictated that Mr Bradley not recover costs. It submitted that the award of costs to a successful party is principally by way of perceived restorative justice. The general rule that ordinarily costs follow the event assumes that where an applicant fails, the respondent will have incurred costs defending an action which ought not to have been brought against it. The order made in such cases is compensatory: Cilli v Abbott (1981) 53 FLR 108. Where a successful party has not been put to any costs because it has been indemnified throughout, no justification exists for costs to be ordered. 103 The effect of this submission, if accepted, would be remarkable. Ministers of the Crown are frequently sued in this and other courts. When proceedings fail, they receive costs. There is no suggestion that they are personally liable for costs incurred in defending those proceedings. They are, by convention, fully indemnified by their governments. 104 Whatever arrangements there may in any given case be for the payment of fees, whether by government or by some benevolent third party, that is a matter between the parties to those arrangements. It is of no relevance when determining whether or not, as successful litigants, they are entitled to costs. 105 Accordingly, Mr Bradley is entitled to an order for his costs.

conclusion 106 As indicated earlier, it is my view that NAALAS is entitled to some reduction in the costs which it must pay to the respondents having regard to the fact that it successfully resisted challenges to its standing and the justiciability of its improper purpose claims. That reduction cannot be substantial, having regard to the amount of time spent on those issues. I consider that an additional reduction is warranted by reason of the fact that some aspects of this proceeding may be characterised as "public interest litigation", including in particular, the constitutional arguments, and the attempt to invoke the principles in Kable. 107 Doing the best that I can, and recognising that the process is somewhat imprecise, the justice of the case requires that NAALAS pay 70% of the respondents' costs of and incidental to the primary proceeding, including reserved costs. That order applies also to the costs of and incidental to this costs application. Such costs are to be taxed in default of agreement. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the Applicant: Geoff James Solicitor and Notary

Counsel for the First Respondent: Mr J Reeves QC

Solicitors for the First Respondent: Cridlands Lawyers

Counsel for the Second Respondent: Mr T Pauling QC, Solicitor-General for the Northern Territory

Solicitor for the Second Respondent: Solicitor for the Northern Territory

Dates of Hearing: 26 and 27 April 2002