AB v Constable Joshua Hedges
[2013] NSWSC 814
•21 June 2013
Supreme Court
New South Wales
Medium Neutral Citation: AB v Constable Joshua Hedges & Anor [2013] NSWSC 814 Hearing dates: Thursday 23 August 2012 Decision date: 21 June 2013 Jurisdiction: Common Law Before: Hidden J Decision: Application for judicial review dismissed
Catchwords: COSTS - summary criminal proceedings - costs order against prosecutor purportedly by consent - whether order validly set aside by magistrate - whether consent order for costs against public prosecutor appropriate Legislation Cited: - Crimes Act 1900
- Criminal Procedure Act 1986
- Civil Procedure Act 2005Cases Cited: - V (a child) v Constable Joshua Hedges [2011] NSWSC 232
- Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
- Cameron v Cole (1943) 68 CLR 571
- Taylor v Taylor (1978 - 79) 143 CLR 1
- Harvey v Philips (1956) 95 CLR 235
- Grassby v The Queen (1989) 168 CLR 1Category: Costs Parties: AB (plaintiff)
Constable Joshua Hedges (1st defendant)
Magistrate Albert Sbrizzi (2nd defendant)Representation: Counsel:
Mr B Coles QC & P Conway (plaintiff)
M Hutchings (1st defendant)
Submitting appearance (2nd defendant)
Solicitors:
Mr Emanueli Oliveri, Oliveri Lawyers (plaintiff)
Phillip Salem, Sparke Helmore Lawyers (1st defendant)
IV Knight, Crown Solicitor (2nd defendant)
File Number(s): 2012/76236 Publication restriction: Yes
Judgment
At the time of the events which give rise to these proceedings the plaintiff was a juvenile, and for that reason he is referred to as "AB" (which are not his initials). The proceedings arise out of the prosecution of the plaintiff in the Children's Court for certain offences, the informant being the first defendant, Constable Hedges. The second defendant is the magistrate who dealt with the matter in that court, who has entered a submitting appearance. It is convenient to deal with the background to the matter before turning to the relief sought.
On 10 April 2009, Constable Hedges arrested the plaintiff and charged him with five traffic offences and a charge of resisting him, an officer, while in the execution of his duty, an offence under s 58 of the Crimes Act 1900. The evidence upon which these charges were based is not material for present purposes. The plaintiff pleaded not guilty, and he was legally represented in the Children's Court. The hearing proceeded for two separate days in 2010, and were adjourned to enable submissions as to whether there was a prima facie case. Those submissions were made but, shortly before the hearing was due to resume, all charges against the plaintiff were withdrawn. They were accordingly dismissed.
The plaintiff made an application for costs pursuant to s 213 of the Criminal Procedure Act 1986, which confers a discretion on a magistrate to award costs where a matter is dismissed or withdrawn. The application was governed by s 214 of the Act, limiting the award of professional costs to an accused against a prosecutor acting in a public capacity. The subsection provides:
"S 214(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following.
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs."
In deciding the application the magistrate focused on the issue raised by subs (1)(b), "that the proceedings were initiated without reasonable cause ... ." In the light of a concession made by Constable Hedges during evidence, his Honour found that his arrest of the plaintiff was unlawful and that a prima facie case of the charge of resisting an officer could not have been made out. As to the traffic matters, however, he found that a prima facie case might have been made out. Accordingly, he refused the application for costs, taking the view that the charges collectively constituted the "proceedings" for the purposes of s 214.
The plaintiff sought judicial review of his Honour's decision in this court, and the matter was dealt with by McCallum J: V (a child) v Constable Joshua Hedges [2011] NSWSC 232. He succeeded in part only. Her Honour held that the magistrate was in error in regarding the six charges as collectively constituting the proceedings for the purpose of s 214, as "each separate offence for which a person is prosecuted ought properly to be regarded as giving rise to separate criminal proceedings": [29]. She found that it was open to his Honour to have declined to order costs in respect of the traffic offences on the basis that it had not been shown that proceedings for them had been initiated without reasonable cause. However, he should have considered separately the exercise of his discretion to order costs in respect of the charge of resisting an officer: [30].
Accordingly, her Honour quashed the magistrate's order dismissing the plaintiff's application for costs insofar as it related to the proceedings for the offence of resisting an officer, and remitted those proceedings to the Children's Court for determination of the plaintiff's application for costs according to law.
The matter came back before the magistrate on 29 April 2011 for directions. The application for costs was listed for 28 July, and the magistrate suggested that the parties attempt to settle the matter. On that same day, 29 April, the plaintiff's solicitor, Mr Oliveri, wrote to Sergeant Jamie Palmer, the prosecutor who had appeared on that day, setting out an estimate of costs totalling $107,828.90, but offering to settle the matter for $90,730.00. Sergeant Palmer referred the matter to Sergeant Will Somers, the prosecutor who had appeared at the hearing of the charges. On 19 May Sergeant Somers responded by email conveying that he had instructions from the Commander of the relevant Local Area Command to accept that amount.
Further correspondence ensued confirming the agreement and making arrangements to notify the court of it. By 17 June consent orders for the payment to the plaintiff of costs in the amount of $90,730.00, by cheque payable to Mr Oliveri's firm, had been agreed upon.
However, by email of 20 June Sergeant Somers informed Mr Oliveri that he had been instructed that the prosecution "withdraws the agreement to consent orders being filed." The matter was said to be under review by the Commander of the Police Prosecutions Command, and a decision "whether to proceed to hearing or consent to the costs" would be made by the end of that week. Mr Oliveri responded on the same day, asserting that there was a "binding settlement agreement", that it was not open to the prosecution to unilaterally set it aside, and that he was instructed to enforce it.
By email of 22 June Acting Senior Sergeant Tyler-Stott, Area Prosecutions Co-ordinator at Parramatta Children's Court, informed Mr Oliveri that "the prosecution's position is that the quantum of costs are to be left to the determination of the court", and asked him to advise how he wished "to advance" his application. Mr Oliveri responded, again on the same day, saying that, in the absence of "consent to the orders as previously agreed", he would be seeking orders under s 73 of the Civil Procedure Act 2005 confirming the terms of the settlement. By a further email to Sergeant Tyler-Stott of 24 June Mr Oliveri stated that he considered the matter to have been settled, that a binding agreement was in place, and that orders pursuant to the settlement would be sought on 28 July, when the matter was listed before the court.
By a letter to Mr Oliveri of 8 July 2011, Ms Alison Byrne of the Office of the General Counsel of the NSW Police Force expressed the view that the Children's Court did not have jurisdiction to hear an application under the Civil Procedure Act, and asserted that on 28 July the court would be asked to determine "the issue remitted by" McCallum J.
On 19 July 2011, Mr Oliveri filed an affidavit in the Children's Court setting out his dealings with the prosecution, including the proposed consent orders and the prosecution's subsequent repudiation of the agreement. He asserted that the plaintiff "does not consent to the attempted unilateral withdrawal of the settlement agreement reached herein", and sought the entry of an order for costs in the agreed amount. On the same day, in the absence of the parties, the magistrate made an order in chambers for costs in the amount of $90,730.00, noting it as an order for costs made under s 214(1)(b) of the Criminal Procedure Act "by consent." His Honour also vacated the hearing date of 28 July.
On 28 October 2011, Constable Hedges filed in the Children's Court an application to set aside the costs order, and seeking an order that the matter be re-listed so that the question of costs remitted by the Supreme Court could be determined according to law. It is unnecessary to recount the procedural steps which then ensued. Suffice to say that on 6 March 2012 his Honour set aside the costs order, giving reasons on that day.
Put shortly, his Honour found that he should not have made the order in chambers of 19 July, adding that he would not have done so if he were aware that there was an issue as to consent to the order. The parties had a right to be heard on the matter and, in the circumstances, they had been denied natural justice. That being so, the order was a nullity and a submission for the plaintiff that, the order having been made, he was functus officio was rejected.
Further, his Honour rejected a submission for the plaintiff that the consent of a prosecutor to a costs order would be determinative of the issue of costs under the relevant provisions of the Criminal Procedure Act. He noted that s 213(1) provides that a court "may" make an order for costs, the amount being that which the magistrate "considers to be just and reasonable": subs (2). He also noted the opening words of s 214(1) that professional costs "are not to be awarded in favour of an accused person" unless the court is satisfied of one or more of the matters set out in the subsection. He saw the consent of the prosecutor as a matter relevant to the exercise of the discretion under ss 213 and 214, but as no more than that. If consent were determinative, he held, the court "would effectively have no discretion in the matter" and "would merely be a rubber stamp for what the parties had agreed to."
As to the question whether there was a binding agreement between the parties in the present case, his Honour found that he had no jurisdiction to determine issues "relating to contract law that had been raised by both parties". Those issues, he said, were for resolution by this court, not the Children's Court.
Having set aside his costs order of 19 July 2011, his Honour set the costs application down for hearing on 3 May 2012. However, the proceedings in this court intervened. By a summons filed on 8 March 2012, the plaintiff seeks an order in the nature of certiorari quashing the magistrate's order of 6 March 2012 and, as against Constable Hedges, damages for breach of contract. The issues raised by these claims for relief overlap, but it is appropriate to deal with them separately.
Judicial review
Put shortly, the grounds for judicial review are the following:
- There was no denial of natural justice when the magistrate made his order of 19 July 2011. It was a valid order and, having made it, he was functus officio.
- Alternatively, the question whether the consent order should have been set aside was properly the subject of separate proceedings: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, per Handley JA at 696 - 7.
- Further in the alternative, on the question whether the order should be set aside, his Honour should himself have determined whether the order was made without the lawful consent of the parties.
- Yet further in the alternative, his Honour erred in holding that a court could not enter a consent order for costs under ss 213 and 214 of the Criminal Procedure Act, and that the court was bound to determine for itself whether such an order should be made.
In determining that the costs order of 19 July was a nullity because of a denial of natural justice, his Honour had regard to Cameron v Cole (1943) 68 CLR 571 and Taylor v Taylor (1978 - 79) 143 CLR 1. In Cameron v Cole, Rich J said at 589:
"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside ... . In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial ... ." (References to authority omitted)
In Taylor v Taylor, Gibbs J (as he then was) affirmed that principle, referring to the judgment of Rich J, at pp 7 - 8.
Mr Coles QC, who appeared in this court with Ms Conway for the plaintiff, submitted that that line of authority has no application to the present case. Cameron v Cole was a bankruptcy matter in which a sequestration order had been made against a debtor in his absence, where he, through inadvertence, did not have notice of the date of the hearing. Taylor v Taylor was similar. It involved divorce proceedings in which orders had been made against the husband when, through no fault of his, he was neither present nor represented at the hearing. Mr Coles argued that the principles expressed in those cases have no bearing upon a final order of a court expressed to be made by the consent of the parties. Where there is such consent, he said, no question of procedural fairness (denial of natural justice) could arise.
Of course, there have been cases where a party has sought to challenge an agreement giving rise to consent orders. Mr Coles referred to a leading High Court decision on that matter in Harvey v Philips (1956) 95 CLR 235. In that case the plaintiff sought unsuccessfully to challenge the settlement of proceedings despite the fact that counsel, on her instructions, had signed terms of settlement. In a joint judgment the High Court said at 243 - 4:
"The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf Halsbury's Laws of England, vol 26, 2nd ed, pp 84, 85); but there is a dictum of Lindley LJ which is distinct enough: '... nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual ... . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good': Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [(1895) 2 Ch 273 at 280]."
In Spies v Commonwealth Bank of Australia (supra) the appellant had sought to set aside a judgment by consent on the basis that his consent had been procured by fraud. At 696 - 7 Handley JA, with whom Mahony and Clarke JJA agreed, cited that passage from Harvey v Philips. His Honour added (at 697) that "it is also established that the jurisdiction to set aside a consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings," citing authority for that proposition.
In written submissions Mr Coles cited subsequent cases in which these principles have been considered and applied, but the principles are clear and those cases need not be referred to. Mr Coles argued that if Constable Hedges sought to set aside the consent order for costs on any of the bases referred to in Harvey v Philips, he should have instituted separate proceedings for that purpose or, at least, have filed a cross-claim in the present proceedings. He noted that there is no evidence before me of the circumstances in which the prosecution consented to an order for costs and then sought to withdraw that consent. (Nor, it appears, was there any such evidence before the magistrate.) It is not in dispute that, in the course of negotiations with Mr Oliveri, Sergeant Somers was the representative of Constable Hedges, the informant.
That said, counsel for Constable Hedges in this court, Mr Hutchings, referred to two matters arising from the evidence suggesting that his Honour's order might have been the product of mistake. Firstly, in his judgment of 6 March 2010, his Honour noted that he made the order as a result of documents forwarded to him in chambers by registry staff on 19 July 2011. He added, "I made the order because at the time I believed both parties had agreed to the order for costs and had also agreed to the amount that was to be ordered." What the documents were which were sent to him in chambers is not clear but, one would have thought, they included Mr Oliveri's affidavit of that day. As I have said, that affidavit disclosed the fact that the prosecution had repudiated the agreement. His Honour's judgment of 6 March suggests that he was not aware of that fact or, at least, had overlooked it.
Secondly, it is clear from the transcript of 29 April 2011, when the matter came back before his Honour for directions following the decision of McCallum J, that he believed that it had been remitted only on the issue of the amount of costs to be awarded, not whether there should be an order at all. It also appears from the transcript that Mr Oliveri shared that view. Moreover, when Sergeant Palmer referred the matter to Sergeant Somers she informed him that that was his Honour's view. However, it is clear from her judgment that McCallum J remitted the whole issue of the costs relating to the resist an officer charge, not just the question of quantum. Before her Honour it was conceded on behalf of Constable Hedges that that particular matter should be remitted, but there was not a concession that the plaintiff was entitled to an order for costs.
Mr Coles responded that none of this makes any difference. Agreement had been reached between the parties for an order for costs and a consent order had been formulated. The prosecution subsequently repudiated that agreement, but that repudiation was not accepted and the agreement remained on foot. That being so, he said, the consent order was properly made. He noted that in Harvey v Philips the plaintiff, who gave instructions to settle the matter only after being subjected to considerable pressure, sought unsuccessfully to disown the compromise before judgment had been given in accordance with the terms of settlement. Nevertheless, judgment was given even though the court was aware at that time that she had withdrawn her consent to it. The High Court noted (at 244) the "finding of the Supreme Court" that the evidence sufficed "to establish that she definitely did give her authority, however reluctant it may have been." The court added that it was impossible "to regard the authority she thus gave as insufficient to support the compromise."
However, the present matter is not as simple as that. I agree with the magistrate that an application for costs involving s 214 of the Criminal Procedure Act cannot be resolved simply by a consent order. Mr Hutchings argued for the same view in this court. It may be that an application under s 213 could be resolved in that way in a private prosecution. Section 214 does not apply to the award of costs against a prosecutor "acting in a private capacity": subs (2). However, an application for costs against a prosecutor acting in a public capacity raises important questions of policy recognised by s 214(1).
The opening words of the subsection are emphatic. Professional costs "are not to be awarded" to an accused in a public prosecution unless the court is satisfied of one or more of the preconditions set out in pars (a) to (d). In oral argument, Mr Coles submitted that "the best possible form of satisfaction must be the consent of the prosecutor to that order." He likened that consent to an admission by a party conclusive of the issues in a proceeding. This I cannot accept. No doubt, a public prosecutor might responsibly concede that one of the matters set out in subs (1) is, or could readily be, established. This may well be such a case. Nevertheless, it would remain for the court to decide for itself whether that is so.
I do not find it necessary to assess the significance of the mistakes on his Honour's part raised by Mr Hutchings. I am satisfied that there was a denial of procedural fairness justifying the setting aside of the consent order. How the matter came to be referred to his Honour in chambers remains unclear. As noted at [10] above, Mr Oliveri's email to Sergeant Tyler-Stott of 24 June 2011 asserted that the agreement for costs was binding and that orders accordingly would be sought on 28 July, the date on which the matter had been listed for hearing. Presumably, he filed his affidavit of 19 July in preparation for that hearing, not with a view to a consent order being made in the absence of the parties in the meantime. In his judgment of 6 March 2012, his Honour frankly acknowledged that he had "erred in making the order in chambers," properly describing that error as a "significant one."
If the parties had appeared on the planned hearing date, they would have had the opportunity to be heard on the issue of the agreement and the prosecutor's decision to resile from it. More importantly, the prosecutor would have had the opportunity to be heard on whether, in the light of the terms of s 214, a consent order was appropriate. The parties having been denied that opportunity, the making of the consent order was a nullity for the reasons expressed by Rich J in Cameron v Cole. In the passage cited from that case Rich J referred to the "inherent jurisdiction" of any court, superior or inferior, to set aside a decision arrived at after a denial of natural justice. In relation to the Children's Court that jurisdiction might now be described as an implied power: Grassby v The Queen (1989) 168 CLR 1, per Dawson J at 16 - 17, but the outcome is the same.
Accordingly, no error has been demonstrated in his Honour's decision to set aside the consent order. The application for judicial review must be dismissed.
Contract claim
The claim in contract seeks the following:
- the principal sum of $90,730 or, alternatively, the difference between that amount and any amount validly awarded as costs by the Children's Court;
- damages for the defendant's repudiatory conduct, being the plaintiff's professional costs of appearances in the Children's Court after the consent order of 19 July 2011.
My decision on the application for judicial review does not necessarily mean that this claim cannot be pursued. However, it would seem sensible not to do so until the application for costs in the Children's Court has been determined. In any event, a question arises whether this is a claim which should have been commenced by statement of claim: UCPR r 6.3. Having been commenced by summons, it may be appropriate to order that the proceedings continue on pleadings: r 6.6. Apart from other issues which might arise, it may be necessary to consider the bearing upon the claim of my finding as to the effect of s 214 of the Criminal Procedure Act.
I shall hear the parties on appropriate directions for the conduct of the matter, and on costs.
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Decision last updated: 21 June 2013
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