AB v Paulet (No 2)
[2022] VSC 646
•26 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04597
| Between: | |
| AB | Plaintiff |
| -and- | |
| ANDREW PAULET | First Defendant |
| -and- | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2022 |
DATE OF JUDGMENT: | 26 October 2022 |
CASE MAY BE CITED AS: | AB v Paulet (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 646 |
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JUDICIAL REVIEW — Relief — Where, on judicial review, Court quashed findings of guilt recorded in County Court (on de novo appeal from Magistrates’ Court) against plaintiff on two charges of sexual assault and one of stalking — Where, because no evidence of “sexual” touching, Court satisfied no case on either charge of sexual assault — Where Court satisfied arguable case remaining on stalking — Where Court remitted stalking charge to County Court — Where Court heard further submissions on possible consequential orders, if any, to be made in respect of sexual assault charges — Where Director of Public Prosecutions (“DPP”) undertakes that, if sexual assault charges remitted to County Court, prosecution of those charges will not be pursued — Where undertaking includes that prosecution of remitted stalking charge will not be pursued either — Where, to give effect to undertaking, DPP would withdraw all three charges upon matter being called on for hearing in County Court — Where plaintiff does not oppose this course — Whether appropriate to remit sexual assault charges in those circumstances — Sexual assault charges remitted to County Court — Unnecessary to decide whether, if sexual assault charges not remitted, order for prohibition open instead — Unnecessary to decide whether giving of undertaking provides discretionary basis to refuse to issue order for prohibition.
COSTS — Where plaintiff unrepresented in this Court but seeks administrative costs of bringing application for judicial review — Where application not opposed by DPP — Order for administrative costs made.
COSTS — Where plaintiff legally represented in County Court and Magistrates’ Court — Where DPP does not oppose application for reasonable costs incurred by plaintiff in those courts — Whether application should be dealt with by this Court or by County Court upon remittal — Any such application to be determined by County Court upon remittal.
COSTS — Where amici curiae appointed by Court — Where amici curiae seek their costs in this Court — Where application opposed by DPP — Whether exceptional circumstances warranting departure from usual position that amici curiae bear own costs — Where amici curiae provided considerable assistance (including on matters and to an extent beyond initial request by Court) by research, preparation, written submissions and appearances — Where proper conduct of proceeding depended upon amici curiae’s participation — Exceptional combination of circumstances established — Order for costs made in favour of amici curiae on standard basis — Madafferi v The Queen [No 2] (2021) 63 VR 143.
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| Appearances: | Counsel | Solicitors |
| For the Plaintiff | In person | N.A. |
| For the First Defendant | Ms M Mahady with Mr G Barr | Solicitor for Public Prosecutions |
| Amici curiae | Mr T Danos with Mr L McAuliffe | N.A. (Direct brief, Victorian Bar Pro Bono Scheme) |
| For the Second Defendant | Submitting appearance | N.A. |
HIS HONOUR:
OVERVIEW
In September 2020, on an appeal from the Magistrates’ Court to the County Court, AB[1] was found guilty of two charges of sexually assaulting CD and one of stalking her. He was sentenced to pay an aggregate fine of $10,000, without conviction.
[1]By a pseudonym order, the plaintiff is designated AB, and the complainant, CD.
After hearing AB’s application for judicial review, on 27 July 2022, I concluded that these findings of guilt were vitiated by jurisdictional error and error of law on the face of the record. I published reasons for my decision.[2]
[2]AB v Paulet [2022] VSC 414.
The same day, I ordered that the findings of guilt on all charges and the aggregate sentence be quashed.
Since there was an arguable case remaining on stalking, I ordered that that charge be remitted to the County Court for rehearing.
There was, however, no evidence on the element of “sexual” touching on either charge of sexual assault. Despite the joint submission that, in those circumstances, an order for prohibition would be available, I adjourned the application to allow further written submissions on whether to make, and, if so, the nature and form of, any further orders in respect of the sexual assault charges.
The Director of Public Prosecutions has since proffered an undertaking to the effect that, if the sexual assault charges were remitted to the County Court, the prosecution of those charges would not be pursued. The undertaking extended to a decision to decline to pursue the stalking charge as well. Effect would be given to this undertaking by the withdrawal of all three charges upon the appeal being called on in the County Court. AB is content with this course. I have concluded that, in view of the undertaking and AB’s position, the sexual assault charges should be remitted to the County Court.
The other issues on which I invited further submissions concern costs. After considering these submissions, I have concluded, first, that there will be an order in favour of AB for his administrative costs in bringing this application. Second, any application by AB for his costs in the Magistrates’ Court or the County Court should be determined by the latter court upon the remittal. Finally, there will be an order in favour of amici curiae for the costs of this application.
My reasons for those conclusions and orders follow.
FURTHER RELIEF
Instead of summarising afresh the background to the question of the appropriate relief, it is convenient to extract here much of what I said on the issue in my earlier reasons:[3]
[3]AB v Paulet [2022] VSC 414 at [518]-[523] & [526]-[531] (footnotes omitted).
Application succeeds; findings of guilt and sentence quashed
[518] Given the grounds that I have upheld, AB’s application for judicial review must succeed. I will make an order in the nature of certiorari quashing each finding of guilt and the aggregate sentence imposed.
Submissions on consequential orders on stalking
[519] The parties agreed that, as there was still an arguable case on stalking, it would be appropriate to make an order in the nature of mandamus in respect of the stalking charge, so that it would be remitted to the County Court for rehearing. I also agree.
Submissions on consequential orders on sexual assault
[520] As I understood them, the parties and amici curiae also submitted that, were I satisfied that the evidence before the County Court was incapable of establishing either charge of sexual assault, then there should be no further hearing in respect of those charges. Instead, it was agreed that it would be appropriate to make an order in the nature of prohibition in respect of any such rehearing.
Further orders, if any, on sexual assault charges
[521] For the reasons I have given above, I am satisfied that the evidence was incapable of warranting a finding or conclusion that either instance of touching was sexual. On reflection, however, I am not so sure that prohibition would be an appropriate consequential form of relief.
[522] That said, given that it follows from what I have held that the only order open to the County Court on the sexual assault charges was to dismiss them, I do not think it would be appropriate to remit the matter for rehearing on those charges. Further, I consider that it would be unfair if AB were made to face those charges a third time.
[523] There was no suggestion by the Director on the application in this Court that the prosecution were in any way wrongly denied an opportunity to prosecute the case on the sexual assault charges in the County Court. Nor was there any suggestion that the prosecution should be allowed to run a new case based on fresh or new evidence.
…
[526] It may seem odd that this Court, on the present application, cannot simply substitute or make orders dismissing the sexual assault charges. But that is the reality. Judicial review is a supervisory jurisdiction. In exercising that jurisdiction, this Court does not have the power to make orders of that type.
[527] It seems that there may be at least four options instead. The first is simply to make no further order. In that event, when the fact that all three findings of guilt have been quashed is coupled with these reasons and the remittal of the stalking charge, but the absence of an equivalent remittal order on the sexual assault charges, it would be a clear signal to all that that is the end of the latter charges. But it would not amount to the dismissals that ought to have been ordered in the County Court.
[528] A second option would be in addition to the first. It would be for the Director and Victoria Police to undertake not to prosecute the sexual assault charges any further. This would ensure that AB would not be put in jeopardy of revival of the charges or of any possible findings of guilt or penalty. However, he would still be without orders dismissing the charges.
[529] A third option is to make an order in the nature of prohibition, in line with the submissions of the parties and amici curiae. This would mean that the sexual assault charges could not be prosecuted again. Assuming prohibition is indeed available at law in the present circumstances, about which (despite the submissions of the parties) I am not entirely certain, this would give AB the added comfort that, by order of this Court, the sexual assault charges could not be revived. There would also be these reasons explaining that there was no case on sexual assault. Still, however, there would be no dismissals.
[530] A fourth option may be this. Assuming these orders are available at law, about which I am not certain, this Court could remit the sexual assault charges to the County Court with a direction that they be dismissed, as they should have been in the first place. Presumably, dismissals would be ordered on the sexual assault charges by the County Court at the outset of the remitted proceedings on all three charges, before any evidence were called. If need be, the Director could, in conformity with the remittal, announce that she leads no evidence on the sexual assault charges. Either way, the County Court could then dismiss those charges and commence hearing the stalking charge, if it were still pursued. This option would achieve what the law required originally in the County Court — namely, dismissal of the sexual assault charges.
Further submissions required
[531] In light of the foregoing, and despite the previous submissions of the parties and amici curiae, I will refrain from making an order in the nature of prohibition in respect of the sexual assault charges, at least for the moment. Instead, before finally deciding which further orders, if any, to make on those charges, I wish to receive further submissions from the parties, and amici curiae, on whether the third and fourth options are available at law and, in any event, on the preferable course to take. The Director will be asked whether she and Victoria Police are prepared to give the undertakings spoken of in the second option, and the parties and amici curiae will be asked for submissions on whether that possible course may be appropriate.
In written submissions (dated 24 August 2022), counsel for the Director addressed the foregoing questions in this way:[4]
[4]Footnotes omitted.
[2] By way of Orders dated 27 July 2022, charge 3 (stalking) was remitted back to the County Court for rehearing and further submissions were directed with respect to the disposition of charges 1 and 2 (sexual assaults). His Honour … raised the possibility that the simplest disposition may be an undertaking from the Director … that the charges (at least charges 1 and 2) would not proceed, noting that this was entirely a matter for the Director.
[3] Pursuant to this, the First Defendant [(the informant)] undertakes that:
·if charges 1 and 2 are remitted to the County Court for rehearing, the prosecution of those charges will not be pursued; and
·the prosecution of charge 3 (already remitted for rehearing) will not be pursued.
[4] To effect this outcome, the First Defendant will withdraw any remitted charges in the County Court, upon the matter being called for hearing of the appeal. No further prosecution will be commenced for those charges.
[5] On the basis of this undertaking, it is submitted that all three charges should be remitted to the County Court for rehearing. If this submission is not accepted, the First Defendant’s position remains unchanged with respect to the orders that are available to the court:
·Charges 1 and 2 – As jurisdictional error has been found for these charges, an order of prohibition is open. There is significant doubt as to whether an order granting certiorari “and no further order” is available at law and, even if available, the uncertainty that it is likely to create in terms of the Plaintiff’s criminal record militates against such approach being adopted.
·Charge 3 – should be remitted to the County Court for rehearing.
In his responding written submissions (dated 12 September 2022), AB said this:
[6] The [Director] gave an undertaking that [she] is going to withdraw the charges. Thus, [it] seems right to only do a certiorari and mandamus to be sent to the County Court, as the [Director] also says.
In their written submissions (dated 29 September 2022), amici curiae addressed the matter in this way:
[3] On 24 August 2022, by written submissions, the Director … on behalf of the First Defendant undertakes to the Court that:
a) if charges 1 and 2 are remitted to the County Court for rehearing, the prosecution of those charges will not be pursued; and
b) the prosecution of charge 3 (already remitted for rehearing) will not be pursued.
[4] The Director will effect this undertaking, on behalf of the First Defendant, by withdrawing charges 1, 2 and 3 in the County Court on the matter being called on for hearing. The Director’s willingness to give such an undertaking on behalf of the First Defendant would be appropriate discretionary grounds on which to refuse to issue an order for prohibition. Accordingly, the amici say nothing further about this matter.
On 7 October 2022, I caused my associate to email the parties and amici curiae in the following terms:
[His Honour] has read and considered the further submissions filed in this matter.
His Honour is of the view that the undertaking referred to in paragraphs 3-5 of the [Director’s] submissions of 24 August 2022 should be made clearer. In particular, given the Director’s authority over prosecution, his Honour suggests that it should be made clear:
1)that it is the Director’s undertaking that, if the matter is remitted to the County Court, the charges will not be pursued by the Director and that no further prosecution will be commenced for those charges (which will be given effect to by withdrawing any remitted charges upon the appeal being called on for hearing before the County Court); and
2)that the Director gives the same (or an equivalent) undertaking on behalf of the first defendant/informant.
If the issue is clarified in this way by return email, his Honour will make orders accordingly (i.e. remittal of the sexual assault charges to the County Court) and provide further written reasons, without the need for any further written or oral submissions.
On 10 October 2022, the solicitor with the conduct of this matter in the Director’s office responded by email in this way:
I confirm that, consistent with his Honour’s suggestion, it is the Director’s undertaking that if the matter is remitted to the County Court, the charges will not be pursued by the Director and that no further prosecution will be commenced for those charges (which will be given effect to by withdrawing any remitted charges upon the appeal being called on for hearing before the County Court). The Director makes the same undertaking on behalf of the first defendant/informant.
No further submissions have been received by the parties or amici curiae.
In view of the Director’s undertaking and AB’s response, I am satisfied that it is appropriate to remit the sexual assault charges to the County Court. I shall make an order to that effect.
This will mean that, pursuant to the undertaking, the three charges faced by AB will not be pursued by the Director or Victoria Police and no further prosecution will be commenced for those charges. Further, it is understood that the Director will give effect to this undertaking by withdrawing all three charges when the appeal is called on for hearing before the County Court.
In those circumstances, it becomes unnecessary to determine whether, in addition to the orders I have made in the nature of certiorari, it might have been open or appropriate to make an order in the nature of prohibition, another order or no further order in respect of the two sexual assault charges.
AB’S ADMINISTRATIVE COSTS IN THIS COURT
Since AB was unrepresented in this Court, he did not incur the costs of solicitors or counsel. Nor did he make any application for legal costs in the usual way.
In his written submissions, however, AB applied for an order for his administrative costs in this Court. These costs were comprised of the cost of obtaining the transcript of the hearing before the County Court ($1,315) and the half of the cost of transcript in this Court ($1,139.16),[5] making a total of $2,454.16.
[5]Presumably, the Chief Commissioner of Victoria Police (on behalf of the first defendant/informant) or the Director paid the other half.
In the Director’s written submissions, which preceded AB’s, it was said that, in the event that AB applied for an order for administrative costs associated with bringing this application for judicial review, that application should be dealt with in this Court. Neither before nor since the receipt of AB’s submissions has the Director made any objection to an order for administrative costs at all or in the amount sought.
As AB submitted, the costs of the transcript were necessarily incurred.
In those circumstances, I shall make an order for AB’s administrative costs in the amount of $2,454.16.
AB’S COSTS IN THE COURTS BELOW
AB was represented by solicitor and counsel in the Magistrates’ Court and on his appeal in the County Court. Ordinarily, if an accused successfully appealed a conviction from the Magistrates’ Court to the County Court, there would be an order for his or her costs of the appeal, and also an order in respect of his or her costs in the Magistrates’ Court. Given his success on judicial review in this Court, the question arose as to whether AB could or should apply to this Court for his costs in the other courts, or whether it would be preferable to make any such application to the County Court upon any remittal.
At the time this question was posed (on 27 July 2022), while I had quashed the findings of guilt on all three charges and ordered the remittal of the stalking charge to the County Court, it was not known what further orders, if any, would be made vis-à-vis the sexual assault charges. As we have seen, given the undertaking since proffered by the Director, I have decided that I shall order that those charges be remitted to the County Court, where they will be withdrawn.
In the written submissions, counsel for the Director submitted that it is appropriate for any costs application by AB relating to the costs incurred in the courts below (including any costs associated with the remittal of the charges) to be dealt with by the County Court upon the remittal. It was also indicated that there would be no opposition to an order for reasonable legal costs incurred in the courts below, consistent with the principles in Latoudis v Casey.[6]
[6]Latoudis v Casey (1991) 170 CLR 534.
In his written submissions, AB accepted that it “seems right” that any application by him for costs in the other courts be dealt with by the County Court.
I agree. There is no need for any order in this Court. Instead, when making the other orders to be made today, I shall note (under the heading “Other matters”) that any application by AB for his costs in the Magistrates’ Court and the County Court is to be determined by the latter court upon the remittal.
AMICI CURIAE’S COSTS IN THIS COURT
Introduction
In my earlier reasons, I raised the possibility that this was a case in which amici curiae might consider making an application for costs, if they wished to do so. In this regard, I referred counsel to the Court of Appeal’s decision in Madafferi v The Queen [No 2].[7]
[7]Madafferi v The Queen [No 2] (2021) 63 VR 143 (Emerton, Weinberg and Osborn JJA).
In their written submissions, amici curiae have since made an application for costs. AB supported the application. In anticipation, it was indicated in the written submissions on behalf of the Director that any such application would be opposed.
The submissions made on behalf of the Director and by amici curiae are detailed. In what follows, I shall record the main points made in each of the written submissions.
Director’s submissions
As the Director pointed out, the Court has a broad discretion with respect to ordering costs, including in favour of non-parties.[8] However, there is a longstanding principle that those appearing as amici curiae should not be entitled to costs,[9] nor liable to pay costs.[10] The Director submits that the underlying policy of such a position is clear.
[8]Counsel referred to s 24 of the Supreme Court Act 1986 (Vic); and DPP v Brady (2019) 58 VR 628 at 640[64] (per Hollingworth J).
[9]Counsel referred to Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 at 411; and Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1663.
[10]Counsel referred to Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 384[64].
It was accepted by the Director, however, that in more recent times it appears that such orders may be made if exceptional circumstances are made out.[11] While no issue was taken with my characterisation of the considerable assistance provided to the Court by amici curiae in this matter,[12] it was submitted that exceptional circumstances do not exist in this case so as to warrant a departure from the ordinary position that amici curiae bear their own costs.[13]
[11]Counsel referred to Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 384[64]; and Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147[19].
[12]AB v Paulet [2022] VSC 414 at [37]-[38].
[13]Counsel referred to Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147[19].
The Court in Madafferi listed several factors that may be relevant in determining whether “a particular case is an exceptional case justifying a costs order in favour of amici curiae”.[14] The Director accepted that the following features of the present case were consistent with some of those matters:[15]
[14]See Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147-148[20].
[15]In particular, matters (a), (c), (d), (e) and (f) (see Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147-148[20]).
a) amici curiae appeared at the request of the Court (rather than seeking leave);
b) they were independent counsel, not an interested non-party;
c) they provided extensive written submissions and appeared on two-and-a-half days of hearing, which provided considerable assistance to the Court in circumstances which resolved an issue of wider importance (namely, the correct interpretation of “sexual” touching as an element of sexual assault); and
d) their submissions were largely accepted.
In the Director’s submission, however, of particular importance to the present case is the following consideration listed in Madafferi:[16]
whether the proceeding depended on the participation of the amici curiae, for instance because the amici curiae played the role of, or obviated the need for, a contradictor, including where a party is unwilling or unable to participate in the proceeding.
[16]In particular, matter (b) (Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147[20]).
In these proceedings, the Director argued, unlike many of the cases referred to in Madafferi, there was a contradictor — namely, AB. That said, the Director correctly noted that I formed the view that independent counsel were needed to assist the Court in interpreting the new provisions, which were bereft of authority.
The Director accepted that AB is not legally trained. However, it was observed that the nature of his capabilities as a contradictor were acknowledged by me during the proceedings. As the Director pointed out, I told AB that he had done a better job than any other unrepresented person that I could think of with his written submissions, and even suggested that he may want to consider a career in law. I also remarked that he was skilled and articulate.[17]
[17]See, e.g., AB v Paulet [2022] VSC 414 at [33].
By way of comparison, it appeared to the Director that the cases in which costs orders have been made in favour of amici curiae have been in circumstances in which there was no other contradictor.[18] The Director submitted that, while this is only one of the relevant factors, and accepting that AB is not legally trained, it is still a significant consideration.
[18]Counsel referred to Federal Commissioner of Taxation v Administrative Appeals Tribunal (2011) 191 FCR 400 at 404[12]; Federal Commissioner of Taxation v Warner [No 2] [2015] FCA 1281 at [16]-[17] & [36]; Re Kumar [2017] VSC 81 at [5] & [120]. Counsel also submitted that, although costs were awarded to the WorkCover Authority in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260, it appears that the court assumed that the authority was a party, whereas, on appeal, the authority was held to be amicus curiae and therefore was not entitled to costs (see [2011] NSWCA 149 at [11] & [116]).
It was submitted that this case could be contrasted with, for example, the circumstances in Madafferi and Zirilli v The Queen [No 2].[19] In both of those cases, amici curiae were appointed as the only possible contradictors with respect to the review of, and submissions relating to, a significant number of documents which were the subject of a claim of public interest immunity which, ipso facto, counsel for the applicants were precluded from viewing. As the Court of Appeal held in Zirilli, the “just determination of the application depended on [the] involvement [of amici curiae]”.[20] In the Director’s submission, the same cannot be said of amici curiae’s role in the present proceeding.
[19]Zirilli v The Queen [No 2] [2021] VSCA 5 (McLeish, Emerton and Weinberg JJA).
[20]Zirilli v The Queen [No 2] [2021] VSCA 5 at [28].
Notably, submitted the Director, the Court in Madafferi also held that the scope of amici curiae’s involvement “significantly exceeded the scope of the original request”, adding that “they were put under considerable time pressure and required to work very close to Christmas Day and during the legal vacation”.[21]
[21]Madafferi v The Queen [No 2] (2021) 63 VR 143 at 149[26]. On this point, counsel also referred to Zirilli v The Queen [No 2] [2021] VSCA 5 at [27]-[28].
It was suggested that the combination of these exceptional circumstances in both Madafferi and Zirilli may explain why the Chief Commissioner of Police did not formally oppose the costs applications, submitting that the applications were neither consented to nor opposed.[22]
[22]Counsel referred to Madafferi v The Queen [No 2] (2021) 63 VR 143 at 148[22]; and Zirilli v The Queen [No 2] [2021] VSCA 5 at [27].
Finally, it was submitted that, without in any way seeking to detract from the valuable assistance provided by counsel who appeared at the request of the Court in this matter, there are no exceptional circumstances justifying the departure from the longstanding principle that amici curiae bear their own costs.
AB’s submissions
In AB’s submission, the circumstances of this case “substantially [meet] the things that were said in [Madafferi] where the [amici curiae] were paid”. While, in his submission, amici curiae did not perform the role of contradictors, they represented “the independent side of the community on a question of public interest”, and conducted research on the issue.
Amici curiae’s submissions
In their written submissions, amici curiae observed that in Madafferi the applicable principles were not in dispute. Essentially, a costs order will be made in an exceptional case, where it is appropriate to depart from the usual position that amici curiae bear their own costs.[23] Whether a particular case is exceptional depends on the circumstances, including the nature of the case and amici curiae’s involvement and contribution.[24] It was submitted that each factor identified by the Court in Madafferi as potentially relevant to the assessment of whether there might be exceptional circumstances was also relevant to, and present in, amici curiae’s application in this case.
[23]Amici curiae referred to Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147[19].
[24]Amici curiae referred to Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147-148[20].
Amici curiae went on to make eight points. First, reference was made to the following matters mentioned in the “Other matters” section of my orders seeking the assistance of amici curiae, as well as to the orders themselves:
a) AB was (and remains) unrepresented.
b) The present case was a significant matter given the paucity of authority on the construction of the relevant legislative provisions. It was of “importance to the due administration of justice” that AB be represented by counsel or that amici curiae be appointed to assist the Court on the principal issue of statutory construction.
c) AB did not wish to have counsel briefed to assist him. No party objected to the appointment of amici curiae.
d) By Order 3, the Court made a request for senior counsel (or junior counsel of at least five years’ call) with substantial experience in criminal law and junior counsel to act as amici curiae.
Second, amici curiae were appointed at the Court’s request and in the interests of the administration of justice. Amici curiae had no interest in the outcome of the application; rather, their focus was solely on the proper construction of the relevant provisions and the application of that construction to the facts of the current proceeding.
Third, amici curiae submitted that AB’s capacity to assist the Court in the statutory construction exercise was necessarily limited by his lack of legal training and experience. It was of import that the Court sought the assistance of either senior counsel or junior counsel of at least five years’ call and junior counsel. These criteria and scope of the request underscored the nature and complexity of the task with which the Court was confronted. It was submitted that the proper construction of the relevant provisions was not easy to discern and required considerable application of both black letter law and common law skills. Accordingly, the fair and just determination of this matter depended heavily on the involvement of amici curiae — who played the role of, or obviated the need for, a contradictor on these legal issues, particularly in circumstances where AB could not play that role.
Fourth, amici curiae observed that the preparation of the submissions in advance of the hearing involved enormous time and effort. There were voluminous materials to consider, including the brief of evidence, CCTV footage, transcripts from the County Court and this Court, several different amended originating motions, and several sets of submissions filed by the parties. The written submissions requested were filed within 14 days of accepting the Court’s request for assistance. Amici curiae were put under considerable time pressure to read and consider the materials, and to provide useful assistance to the Court.
Fifth, as recorded in my earlier reasons, amici curiae’s submissions were of considerable assistance to the Court.[25] These submissions also assisted in resolving issues of wider legal importance — by dealing with the construction of the relevant provisions. There was no “success” per se, because the role of the amici curiae transcended the interests of the parties to assist the broader community and the due administration of justice.
[25]AB v Paulet [2022] VSC 414 at [37]-[38].
Sixth, the original scope of amici curiae’s retainer described in the Court’s orders was expanded somewhat to include consideration of the adequacy of the reasons of the primary judge. Further, during the drafting of submissions, it became necessary for amici curiae to consider, at length, the relief to be granted and whether orders in the nature of prohibition might be available (which neither party had addressed in detail to that point).
Seventh, AB continued to file further amended originating motions and submissions on the eve of, and during, the hearing. The Director also filed further submissions prior to the hearing. This necessarily complicated and expanded the task set for amici curiae prior to the hearing and in the running.
Eighth, the hearing of AB’s application was set down for 6 December 2021, with the understanding that it was likely to spill into the next day. However, the matter then ran into a third day, which was only arranged at late notice during the running of the hearing.
It was submitted that the matters raised in the last three paragraphs, when considered together, were circumstances beyond the control of amici curiae, which led to the scope of the original request being exceeded significantly.
Accordingly, submitted amici curiae, these circumstances are, in combination, exceptional, and it is appropriate that the Court order costs in their favour on the standard basis.
Consideration
In substance, I accept the submissions of amici curiae. The circumstances are exceptional, and amici curiae should have their costs.
I accept the Director’s submission (based on my remarks during the hearing) that, despite his lack of legal training, AB was skilled and articulate, and that he was able to make helpful submissions in support of his application. I also accept that it might be said that AB was therefore in the position of contradictor to the Director, and that in both Madafferi and Zirilli there was no contradictor other than amici curiae. But, for reasons that follow, none of this defeats the application by amici curiae in this case.
It will be remembered that the passage in Madafferi upon which the Director relied, at least in part, for her submission was as follows:[26]
whether the proceeding depended on the participation of the amici curiae, for instance because the amici curiae played the role of, or obviated the need for, a contradictor, including where a party is unwilling or unable to participate in the proceeding.
[26]Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147[20](b).
However, whether the proceeding depended upon the participation of amici curiae was just one of six matters that the Court in Madafferi said “may be relevant in [the] assessment” of “[w]hether a particular case is an exceptional case justifying a costs order in favour of amici curiae”.[27] There was no suggestion by the Court that, for exceptional circumstances to exist, all six matters listed must be present. Nor was it said that one matter, or this matter in particular, would be more important than another or others in the calculus.
[27]Madafferi v The Queen [No 2] (2021) 63 VR 143 at 147[20].
While, for reasons that will become apparent in a moment, I need not decide the point, the fact that the other five matters listed in Madafferi were present here would seem to be enough, in the particular circumstances of this case, to warrant a conclusion that exceptional circumstances exist and that an order for costs in favour of amici curiae is justified.
I now return to the particular matter that appears to be the focus of the Director’s submission — that is, whether the proceeding depended on the participation of the amici curiae. In my view, it is one thing to hear argument from a skilled and articulate unrepresented litigant without legal training who is capable of putting helpful submissions in furtherance of his own cause. But it is entirely another to have had independent counsel with no interest in the proceeding and with many years’ experience, particularly in the criminal law, putting submissions as amici curiae on, among other things, the construction of provisions of wide import to the administration of criminal justice, especially where those provisions were bereft of authority and, in some respects, were not easy to construe. Amici curiae were also required to put submissions on whether there was evidence rationally capable of justifying a finding that the principal element in dispute on each of the two sexual assault charges was proved, and on several other questions of law raised by the application. As capable an unrepresented litigant as AB was, he was no substitute for independent counsel with legal training and experience. Nor could he provide the particular assistance that I considered necessary in this case. Only counsel for the Director and amici curiae could do that. Simply having AB and counsel for the Director participating in the hearing, in my opinion, would not have been sufficient in the circumstances that obtained in this matter.
Thus, for these reasons, I am satisfied that the proper conduct of the proceeding did depend upon the participation of amici curiae. In my view, their participation was just as important as the participation of the Director — and, in some ways (in particular, on matters of law), even more important than AB’s more limited form of participation. The fair and just determination of the application for judicial review, including my ultimate decision on the proper construction of the relevant provisions (which may well be of importance for cases beyond this matter), depended heavily on the involvement of amici curiae.[28]
[28]See Madafferi v The Queen [No 2] (2021) 63 VR 143 at 149[25].
Furthermore, as in Madafferi, as a result of circumstances beyond their control, the scope of amici curiae’s involvement in this matter significantly exceeded the scope of the original request.[29] Initially, it was expected that the application might spill into a second hearing day, but it ended up taking three days.[30] Further issues were raised by AB, and the Court, during the running of the application, and responded to by the Director, all of which amici curiae had to grapple with, and under considerable time pressures. In addition, as we have seen earlier in these reasons, at my request and despite the submissions made at the hearing, further assistance was sought on the appropriate form of consequential relief required in respect of the sexual assault charges. All of this was above and beyond what might reasonably have been expected by amici curiae when they answered the initial call for assistance.
[29]Madafferi v The Queen [No 2] (2021) 63 VR 143 at 149[26].
[30]Appearances were also required at a mention and the taking of judgment.
Finally, it strikes me as relevant to the exercise of the discretion that the success of amici curiae’s costs application will result in the Chief Commissioner of Victoria Police being ordered to pay only one set of costs as the unsuccessful litigant in this Court.[31] This, of course, is because AB did not seek costs in this Court,[32] and, given his lack of legal representation, he could not sensibly have done so anyway. Yet, had AB been legally represented in this Court, in which case amici curiae would not been involved, then, more or less, the Director would have been neither any better off nor any worse off vis-à-vis costs, as AB would have been entitled to a costs order similar to that sought by amici curiae, which is likely to have involved a comparable total impost.[33]
[31]In referring to the Chief Commissioner as “the unsuccessful litigant in this Court”, I recognise that the first defendant is in fact the informant. But the convention is that the Chief Commissioner is ordered to pay the costs in situations of this type.
[32]Other than his administrative costs, to which no objection was taken. See above.
[33]This assumes that the matter would have run for three days. That said, had AB had the benefit of more targeted submissions from his own counsel, and absent amici curiae, the hearing may well have been shorter. On the other hand, AB might have briefed senior and junior counsel, which would have been warranted. As we have seen, my request for amici curiae embraced the possibility of senior counsel and junior counsel (and the Director had two counsel in the matter). Thus, that those who answered the call for assistance turned out to a senior junior and a relatively junior member of counsel, instead of silk and a junior, may have saved the Director a dollar or two on daily rates. Swings and roundabouts.
Thus, I am persuaded that these matters amount to an exceptional combination of circumstances warranting a departure from the usual rule. I am therefore satisfied that it is appropriate that amici curiae have their costs in the terms sought.
ORDERS
Accordingly, I shall make the following orders:
1) In accordance with the undertaking given to this Court by the Director of Public Prosecutions, the County Court, differently constituted, is directed to rehear and determine Charge 1 (sexual assault) and Charge 2 (sexual assault) in accordance with law and this Court’s reasons.
2) The Chief Commissioner of Victoria Police is to pay AB’s administrative costs of the application in this Court, fixed in the amount of $2,454.16.
3) The Chief Commissioner of Victoria Police is to pay amici curiae’s costs of the application in this Court on the standard basis (to be assessed by the Costs Court in default of agreement).
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