Tosson MAHMOUD v Vincent SUTHERLAND

Judgment 1This is a case which started in the Local Court and is now on its way to the High Court of Australia. It has passed through this Court twice. This is the second occasion. At this stage I am called to give a judgment on a particular issue. 2I should explain something about the background first. Mr Mahmoud and Mr Sutherland live in the same block of units in Sydney. A dispute arose between them. Mr Mahmoud obtained an apprehended personal violence order against Mr Sutherland. The apprehended personal violence order application went to the Local Court and was heard by a magistrate. The magistrate dismissed Mr Mahmoud's application. Not only that, the magistrate ordered Mr Mahmoud to pay Mr Sutherland's legal costs. The costs were over $4,000. 3Mr Mahmoud appealed to the District Court against the magistrate's decision. The case came on before his Honour Judge Knox SC. His Honour heard the appeal and dismissed it. Mr Mahmoud appealed from Judge Knox's decision to the Court of Appeal. 4The Court of Appeal dismissed Mr Mahmoud's appeal so far as it concerned the apprehended personal violence order itself. However, the Court of Appeal made a different order so far as the costs order of the magistrate was concerned. The Court of Appeal said that the Local Court magistrate had completely overlooked the law about costs in apprehended violence orders. Accordingly, the Court of Appeal made an order in the following terms: "1. Order that the order of dismissal made by the District Court on 6 May 2011 be set aside insofar as it dismissed the appeal of Tosson Mahmoud against the costs order made against him by the Local Court on 20 April 2010. 2. Order that the appeal of Tosson Mahmoud against the said costs order be remitted to the District Court for determination according to law. 3. Order that the summons filed by Tosson Mahmoud in this Court on 4 October 2011 be otherwise dismissed." The Court of Appeal's judgment can be found in Mahmoud v Sutherland [2012] NSWCA 306. 5In other words, the Court of Appeal dismissed Mr Mahmoud's appeal insofar as it concerned the apprehended violence order. He still lost that case against Mr Sutherland. However, the Court of Appeal sent the costs question back to this Court for a fresh decision. I am called upon in this judgment to make that fresh decision. 6When the case first came on before me I realised that there were a number of matters upon which I needed legal assistance. I should add, if I have not said so already, that both Mr Mahmoud and Mr Sutherland are unrepresented. 7I should say a little about why I reached the view that I needed legal assistance. Mr Mahmoud, when the case came before me for the first time on 26 April 2013, made an application for me to disqualify myself. I dismissed that application but it is convenient to refer to my reasons for dismissing the application to explain some of the background to this case, in particular why I reached the view that I needed additional legal assistance. 8Before I came on to the bench on the first day that this case was listed, my associate was given information by a person who introduced himself as a law student. He told my associate that he was working with a barrister who wished to apply to assist the Court as a friend of the Court. That barrister, as it turned out, was engaged in another matter and would not be available until 2 o'clock in the afternoon. When I came onto the bench the law student had provided a card to my associate and had identified himself as Michael R Michalak. The barrister whom he had referred to was Mario Licha. 9Mr Michalak repeated that Mr Licha wished to be heard as a friend of the Court. Mr Mahmoud objected to this intervention and to any application for me to hear from Mr Licha as a friend of the Court. I decided to proceed with the case. I went off the bench and read the papers. When I came off the bench my associate handed me a piece of paper which, I infer, was written by the law student, Mr Michalak. I came on to the bench and marked it MFI 4. His card previously given was marked MFI 5. In MFI 4 the note reads: "The Judge made a mistake when reading out s. 99(3) His Honour missed out the word "Domestic'. This matter is 'Personal' - see para 15 of Court of Appeal." I disclosed that note to the parties when I came back on to the bench and made it available for them to read. I then delivered a judgment dismissing Mr Mahmoud's application for me to disqualify myself. 10I should explain the reference to s 99(3). In the Court of Appeal the Court said that the Local Court magistrate and Judge Knox SC had overlooked the law about costs in apprehended violence orders. The Court of Appeal said that the law was set out in s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007. The Court of Appeal pointed out that neither the magistrate nor Judge Knox had turned their minds to the test provided in s 99(3) of that Act as to whether the original application by Mr Mahmoud could be said to be "frivolous or vexatious". Hence that explains the Court of Appeal's order that although his main appeal was dismissed the appeal insofar as it concerned costs should be remitted to the District Court for determination according to law. 11When I read the note that I marked MFI 4 I looked more closely at the Crimes (Domestic and Personal Violence) Act. Section 99 does provide that a Court may award costs to the applicant or to the defendant. Subsection (3) goes on to provide - "A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious." 12That is the provision which the Court of Appeal said had not been applied in this case either by the magistrates or by Judge Knox. 13The note caused me to consider whether that provision applied at all to a case such as this. This is not a case concerning domestic violence. This is a case concerning an apprehended violence order sought by one occupant of a premises against another. Indeed when I look at exhibit 1 before Judge Knox - which is the application - it is an application for an apprehended personal violence order. The question therefore arose in my mind as to whether the Court of Appeal - which I add had also been unassisted by any lawyers appearing before it it seems, because the District Court as second defendant had made a submitting appearance - may have made an error. I therefore raised with Mr Mahmoud and Mr Sutherland my concern and said that I was considering asking the Crown Solicitor to appear as amicus to assist me. Mr Mahmoud objected to that course and pointed out that the Crown Solicitor was in fact acting or about to act in proceedings related to him under the legislation concerning vexatious litigants. 14Nevertheless I decided to seek the Crown Solicitor's assistance and I formulated a series of questions for the Crown Solicitor which my associate sent to him. Those questions I will mark MFI 12. MFI 12 asked for the Crown Solicitor's assistance on the following six issues: "1. Whether in Mahmoud v Sutherland [2012] NSWCA 306 the Court of Appeal overlooked the significance of the word "domestic" in s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 and its applicability in this case where exhibit 1 discloses that it was an application for an Apprehended Personal Violence Order. 2. What course is available if the conclusion is that there was an error by the Court of Appeal? 3. Whether there was, Mr Mahmoud's words, any corruption or interference (although regarded by the judge as innocent) in today's proceedings by the production by a stranger to the proceedings and reading by the judge of MFI 4 and, if so, the consequences. 4. What, if any, is the relevance to these proceedings (remitted from the Court of Appeal) of Mr Mahmoud's application for special leave to appeal to the High Court from orders made by the Court of Appeal in the same case. 5. Mr Mahmoud has applied for an order that his costs of today's proceedings be paid by two strangers to the proceedings - Mr Mario Licha, barrister, and Mr Michael Michalak, law student. Is such an option available and what are the considerations relevant to making such an order. 6. Is there any conflict of interest in the Crown Solicitor appearing given a report of proceedings against Mr Mahmoud to be declared a vexatious litigant." 15When the matter next came on before me there was an application by Anna Mitchelmore of counsel to appear as amicus. She was instructed by the Crown Solicitor's Office but indicated in her submissions, which were MFI 10, that "the Crown Solicitor has declined to appear as amicus but has briefed counsel to appear in that role." She added that the "submissions are not put on the instructions of the Crown Solicitor. Consistently with the traditional role of an amicus, the purpose of the submissions is to assist the Court." She was referring to MFI 10 which were entitled Submissions of Amicus Curiae and which were directed to the questions which I had sent to the Crown Solicitor. 16I gave leave for Ms Mitchelmore to appear having disclosed to the parties that I knew Ms Mitchelmore both professionally and socially and that she had formerly been employed in my chambers as a research assistant when I was the Crown Advocate. There was no objection to her appearance on that basis. 17With the assistance of Ms Mitchelmore's submissions I can now resolve some of the questions which I referred to the Crown Solicitor. It may not be necessary for me to resolve them for the purposes of the question which was remitted to this Court by the Court of Appeal but for the record I should note my decision on those issues. 18First, I accept Ms Mitchelmore's submission that there is no conflict of interest in her appearing as amicus. She made her position perfectly clear that although instructed by the Crown Solicitor she was not putting anything to me on his instructions and indeed that the Crown Solicitor had declined to appear as amicus. That disposes of question 6. 19Ms Mitchelmore also made submissions on the application by Mr Mahmoud to have his costs of the first day's proceedings paid by Mr Licha and Mr Michalak. Ms Mitchelmore referred me to High Court's decision in Cachia v Hanes (1994) 179 CLR 403. She referred to the joint judgment of Mason CJ and Brennan J, as his Honour then was, Deane, Dawson and McHugh both at pp 410-411. I too regard costs within the meaning of this legislation as being reimbursement for work done or expenses incurred by a legal practitioner or a legal practitioner's employee. I accept that compensation for the loss of time of a litigant in person cannot be said to constitute costs. For that reason I reject Mr Mahmoud's application for his costs of the first day to be paid by Mr Licha and Mr Michalak. 20On the question of the relevance if any to these proceedings of Mr Mahmoud's application for special leave to appeal to the High Court from the Court of Appeal's decision, it is apparent that neither party sought to stay the orders of the Court of Appeal so far as they relate to the remittal of the question of costs to the District Court nor has an adjournment been sought pending determination of the special leave application. Ms Mitchelmore pointed out those considerations in [15] of her written submissions. I accept that submission and saw no impediment in me proceeding to determine the case. 21So far as question 3 is concerned, the proceedings were indeed interfered with, in a manner of speaking, by strangers to the litigation. It was the note from the law student which first raised in my mind the statutory basis for the awarding of costs and caused me to look at it more closely and ultimately to seek legal assistance on it. But as Ms Mitchelmore pointed out, I disclosed to both parties as the matter proceeded these matters which had been drawn to my attention and communications initiated by the law student with my associate and documents which were handed to her. I marked them for identification if they were documents and disclosed communications. I then refused an application to disqualify myself. There is nothing in those events in my opinion which compromised the proceedings. 22Ms Mitchelmore also provided me with assistance on the question whether the Court of Appeal may have been in error, and I say this respectfully, in its reliance upon s 99(3) of the Crimes (Domestic and Personal Violence) Act. As Ms Mitchelmore pointed out, the present proceedings did not involve an application for an order under Part 4 of the Crimes (Domestic and Personal Violence) Act which relates to apprehended domestic violence orders but it was an application for an apprehended personal violence order brought under Part 5 of the Act. Accordingly, Ms Mitchelmore submitted in [6]: "[T]he exception in s 99(3) of the Act to the general rule in s 99(1) should not apply, and the Court should not need to be satisfied that the applicant's application was frivolous or vexatious in order to make an order for costs." Ms Mitchelmore pointed out that the Court of Appeal had assumed that s 99(3) applied in the circumstances of this case. Ms Mitchelmore pointed out that in [24] of the Court of the Appeal's judgment it was said that "a costs order can be made against that person only if the relevant state of satisfaction as to the 'frivolous or vexatious' criterion has been realised." She has submitted that the assumption that subs (3) applied was contrary to the terms of the subsection. 23I accept her submission and with respect am of the same view. I repeat, it seems that the Court of Appeal, like I was before I permitted the appearance of Ms Mitchelmore, was without the assistance, or at least active assistance of legal practitioners appearing before it. 24Ms Mitchelmore canvassed the question of whether the Court of Appeal may be able to set aside or vary its judgments. In [13] of her written submissions she examined the various provisions of the Uniform Civil Procedure Rules and did not submit that any of them was applicable. She concluded that in the "absence of any applicable rule of Court which could be invoked at this stage to vary or set aside the judgment of the Court of Appeal, this Court is bound by the decision of the Court on the question of costs. That is the case even if this Court considers that the Court of Appeal overlooked the significance of the particular designation of the apprehended violence orders referred to s 99(3) of the CDPV Act." 25Ms Mitchelmore referred to the decision of Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, particularly at 177. His Honour said at that page the following - "The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law. The law provides its own rules to admit of flexibility." 26I do not regard myself as being in a position to depart from or rather to apply the law differently to that announced by the Court of Appeal. Ms Mitchelmore had pointed out that in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, Basten JA described "according to law" as "a phrase which undoubtedly includes the conclusions of the appellate court as to the applicable law". That apparently appears at [33] of the judgment. 27Ms Mitchelmore submits that in "this case, and on that construction of the phrase, determination of the costs question 'according to law' would involve the application of s 99(3)" of the Crimes (Domestic and Personal Violence) Act. I accept Ms Mitchelmore's submissions in this regard and I propose to determine the costs question in accordance with the law pronounced in the Court of Appeal. MATTER STOOD IN LIST 28The Court of Appeal said in its judgment at [30]: "The task of the District Court was to determine an appeal by way of rehearing. It was therefore incumbent upon the District Court to consider for itself the issues the Local Court had to determine and the effect of the evidence the Local Court received as appearing in the record of the proceedings before the Local Court." The Court quoted from DAR v Director of Public Prosecutions (Qld) [2008] QCA 309 at [9] from the judgment of Keane JA, as his Honour then was, that the "appeal 'becomes, in substance, a hearing of the case for a second time'." 29The Local Court had before it Mr Mahmoud's application which stated its grounds but also an affidavit which was sworn by Mr Mahmoud. The affidavit was in fact related to the transcript and not related to the substance of the proceedings. The grounds of the application were set out in the application itself. Mr Mahmoud said in his application that on 18 December 2009 he entered into an elevator on level 15 of the complex he lived in. Mr Sutherland got in at level 14. Mr Mahmoud said in his application that Mr Sutherland "became agitated, stepped closer to the applicant, raised his right hand and appeared to be about to hit the applicant." Mr Mahmoud claimed that Mr Sutherland had repeatedly referred to him as "this is filthy vandal." Mr Mahmoud claimed that Mr Sutherland "appeared furious at the applicant for no apparent reason." He said that Mr Sutherland "hit the wall of the elevator several times with his fist in a violent and threatening manner towards the Applicant. The Defendant kicked the Applicant's trolley, shouted at the Applicant and said 'move that shit out of there'." As they left the elevator Mr Mahmoud said that Mr Sutherland shouted behind him all the way to the street and that he found Mr Sutherland's behaviour "threatening and intimidating" and held genuine fears for his own safety. 30Mr Mahmoud gave evidence before Magistrate Heilpern in the Local Court on 20 April 2010 in support of his application. Mr Mahmoud confirmed under oath that in the elevator Mr Sutherland had become agitated and hit the wall several times and said "Move that shit out of here" and yelled at him. He claimed that Mr Sutherland had left a bundle of newspapers at his front door and knocked very loudly on the door. Mr Mahmoud felt that he was going to be subjected to a home invasion. He said that Mr Sutherland met him in a nearby street and spat on the street in front of him many times. Mr Mahmoud said that he was "living in fear." 31In the Local Court there was then discussion about other matters, and Mr Sutherland's representative, a Ms Dahl, commenced cross-examination of Mr Mahmoud. He was asked about his name and gave an answer which the cross examiner found unsatisfactory because Mr Mahmoud had questioned whether he had to answer questions about his full name. The magistrate directed him to answer the question. The magistrate pointed out that it was a busy court. The magistrate said "We do not have time for games. The question is 'Have you ever gone by the name of Tosson Hussein Mahmoud'?" Mr Mahmoud answered that question by saying "I have gone by that name." He was then asked by the cross-examiner what his date of birth was. Mr Mahmoud answered "That's - that's personal, they cannot do it because--". His Honour intervened. His Honour said - "Sir, sir, it is not personal. You are the person who is seeking this Apprehended Violence Order. The defendant is clearly able to ensure the identification of the person seeking the order. Now please answer the question." 32Mr Mahmoud said that he was "told by another chamber Magistrate not to mention the date of birth." The magistrate responded by saying "you either answer the question or I am going to dismiss the claim." Mr Mahmoud pointed out that he would appeal to the Supreme Court. His Honour said "That is enough, thank you sir." The transcript notes that Mr Mahmoud withdrew and then the transcript records the magistrate is saying - "These papers are to be marked "The applicant is refusing to answer questions" IN THOSE CIRCUMSTANCES, PARTICULARLY GIVEN THE NATURE OF THE ORIGINAL COMPLAINT, THE APPLICATION IS DISMISSED." 33His Honour then was asked to award costs in the amount of $4,547.95 in favour of Mr Mahmoud. [Sic. This should apparently read "Mr Sutherland".] His Honour referred in disposing of the application to the "general rule in proceedings of this type, costs ought to follow the cause." His Honour said the question is whether there is any rule or reason to vary the order that would ordinarily flow, that is that costs should follow the cause. His Honour went on to observe that "the fact that Mr Mahmoud is not prepared to give his date of birth and was, to say the least, unhelpful in giving his middle name so that he could not even be identified properly, indicates to me that there is no reason to vary the ordinary course of events which is the costs would follow the cause." 34His Honour then awarded costs to Mr Sutherland in the amount which was claimed. It seems to me that his Honour was applying the law as set out in s 99(1) and (2) of the Crimes (Domestic and Personal Violence) Act. His Honour assessed the question by reference to a standard consideration in costs matters that costs should follow the outcome of the proceedings and be awarded to the successful applicant. 35However, the Court of Appeal has said that the applicable law is subs (3) which provides that the court is not to award costs against, in this case, Mr Mahmoud "unless satisfied that the application was frivolous or vexatious." I must, therefore, consider whether I regard the application as frivolous or vexatious. 36One matter which I should consider first are the responses of Mr Mahmoud in cross-examination. He was somewhat unco operative in providing his full name but in the end he provided his name. I myself am not sure of the relevance of his date of birth. It seems from a reading of the transcript that the questions may have been related to identifying him as corresponding to a person who was referred to in some documents which had been produced to the court pursuant to a subpoena. I myself am not convinced that is a relevant question for Mr Mahmoud to be required to answer, nor is that a relevant reason for him to be required to answer it. 37But there is a further consideration. Mr Mahmoud himself referred, in the context of being asked about his date of birth, to a "chamber magistrate" who told him not to mention the date of birth. 38It is apparent that this matter was mentioned several times in the Local Court before it came on for hearing. I take into account also, although strictly speaking perhaps I ought not to, that Mr Mahmoud indicated from the bar table in this Court that he had spoken to a magistrate in the Local Court who assured him that questions about his date of birth were not relevant. That confirms or supports the reference in the transcript to Mr Mahmoud talking about the chamber magistrate. 39The point is this. It seems that Mr Mahmoud was acting on the understanding given to him by a source which he should regard as authoritative that he was not required to answer a question about his date of birth. In those circumstances I would not regard his responses to the questions and answers in his cross-examination - particularly given that he eventually answered the question about his name and that he had a reason to decline to answer the question about his date of birth - as either frivolous or vexatious. He verified at least some of the assertions which he had made in his application. If those verified assertions were accepted by the court, and I might add that these proceedings have been dismissed, then they would appear to me to disclose a reasonable basis for fear and apprehension on the part of Mr Mahmoud. 40Mr Sutherland helpfully provided some written submissions on the question of whether the proceedings were frivolous and vexatious. I marked those submissions MFI 1 and MFI 2. Mr Sutherland made observations of a personal nature about Mr Mahmoud's behaviour in court. I do not regard myself as being in a position to determine those, or make a decision about those observations. I need to make my decision based upon what happened before the magistrate, and whether I regard the magistrate's decision as erroneous. As I said, one exception that I make to that is that I regarded Mr Mahmoud telling me from the bar table in this case about seeing the magistrate on the date of birth question as confirming his evidence in the Local Court about that. 41Mr Sutherland pointed out the expense and inconvenience which he said he has been put to in defending these proceedings. He referred to vexatious litigant proceedings in the Supreme Court which he said that he is considering undertaking. 42He referred in MFI 2 some further submissions to Mr Mahmoud's behaviour in terms which are uncomplimentary and about which I am not in a position to make a finding. He refers to Mr Mahmoud's body language and the attitude of the magistrate. Mr Sutherland made some further helpful submissions, which I marked MFI 11, about vexatious litigant proceedings in the Supreme Court. He also made some factual assertions about Mr Mahmoud's personal financial status, which I am not in a position to determine because I do not appear to have evidence about those matters. 43Returning to MFI 1, Mr Sutherland carefully went through the transcript of the proceedings, highlighting passages in which he said Mr Mahmoud was acting in a frivolous or vexatious manner. He used various adjectives to describe Mr Mahmoud and the nature of his submissions. He also made reference to the magistrate's remarks. 44I myself do not regard the application as being frivolous or vexatious. I have seen Mr Mahmoud in my court a number of times now. He is a determined and articulate litigant. I would not be surprised if an opponent would regard him as annoying because of his persistence. But I have no evidence, or no sufficient evidence before me, to conclude that from his behaviour in my court or, more appropriately I should say before the magistrate, that the application which he brought in these proceedings, which commenced in the Local Court with his application for an apprehended personal violence order, was frivolous or vexatious. 45I would, therefore, determine the question of costs in the following way. Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine this appeal against costs by setting aside the costs order of the magistrate. HIS HONOUR: All right, now that is it. The costs order has been set aside Now you have both heard what I have said about the Court of Appeal, and I once again say it with respect to the possible error which occurred in the Court of Appeal. Mr Sutherland, it is a matter for you as to whether you appeal or not. What I may do, and Ms Mitchelmore, as you know, from her written submissions, said that I can draw the Court of Appeal's attention to matters such as this. I will probably have my judgment transcribed. In fact I will now order that a transcript be taken of my judgment and made available to me for revision. I will send copies to you and Mr Mahmoud in the usual way, and I may send a copy to the Registrar of the Court of Appeal, because it raises those questions about whether the Court of Appeal was in error or not. I am not the judge to determine that question authoritatively, but you also have the option of appealing and raising this question directly in the Court of Appeal.