Bravehearts Inc v County Court of Victoria (No. 2)
[2010] VSC 542
•29 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 9830 of 2009
IN THE MATTER of Order 56 of the Supreme Court(General Civil Procedure) Rules 2005
and
IN THE MATTER of a trial between The Queen v Arno Fisher No. CR-09-00033
and
IN THE MATTER of Orders made during the trial by His Honour Judge McInerney on 1 September 2009 and 8 September 2009 being “Prohibition of Publication of Reporting in respect of ‘White Balloon Day 2009’”.
BETWEEN
| BRAVEHEARTS INC | Plaintiff |
| v | |
| THE COUNTY COURT OF VICTORIA | Defendant |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2010 | |
DATE OF JUDGMENT: | 29 September 2010 | |
CASE MAY BE CITED AS: | Bravehearts Inc v County Court of Victoria (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 542 | |
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ADMINISTRATIVE LAW – discretion to order costs – challenge to a decision of an inferior court – Hardiman’s Case – an inferior court appearing as a contradictor – when an inferior court should be treated as an ordinary litigant - Supreme Court Act 1986 (Vic) s 24(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr K. Hanscombe SC with Ms F. McKenzie | DLA Phillips Fox |
| For the Defendant | Mr D. Masel | Victorian Government Solicitor |
HER HONOUR:
On 7 September 2010, the plaintiff, Bravehearts Inc, obtained declaratory relief in relation to the lawfulness of orders made in County Court proceeding R v Arno Fischer No. CR-09-00033. The Court declared that orders made on 1 September 2009 and 8 September 2009 respectively entitled “Prohibition of Publication of Reporting in respect of ‘White Balloon Day 2009’” were not authorised by s 36A(3) of the County Court Act 1958 (Vic).
Bravehearts now contends that it should have its costs of the application for declaratory relief. It identifies the relevant principles as follows:
(a)First, as in any proceeding, the Court has discretion to order payment of costs in a judicial review matter;
(b)Secondly, an inferior court which participates in actively defending its decision is liable to a costs order in the event that it loses on review;
(c)Thirdly, an inferior court which does not actively participate in the review proceedings may still be liable to a costs order if jurisdictional error is found, or if exceptional circumstances exist.
It is common ground that there is no basis for excepting applications for prerogative relief from the operation of s 24(1) of the Supreme Court Act 1986, which confers a broad discretion on the Court as to costs.
It is also common ground that an inferior court or tribunal may appear and make submissions in relation to the review of its decision in certain circumstances without offending the principle in Hardiman’s Case.[1]
[1]R v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35-36.
In Fagan v The Crimes Compensation Tribunal,[2] Brennan J had said that where proceedings are not inter partes and where the Attorney‑General cannot or does not intervene to represent the public interest and no ‘law officer’ or ‘public official’ is heard by the Court, it may be desirable for the tribunal to appear by counsel and make such submissions as it thinks calculated to assist the court, and in an appropriate case, to argue against the applicant’s case. His Honour said that it was right that the tribunal in that case had appeared by counsel to respond substantially to the application. However, it followed, so his Honour said, that the tribunal should be treated as an ordinary party in the matter of costs.
[2](1982) 150 CLR 666, 681-2.
Likewise, in Magistrates’ Court (Vic) v Robinson,[3] Brooking JA said that where proceedings are taken to challenge a decision of an inferior court and that court, instead of appearing only as a submitting party, chooses to participate in the proceedings by attempting to support its own decision and its opposition is unsuccessful, the inferior court’s participation in the proceedings by way of attempting to support its own decision may lead to an award of costs against it.
[3](2000) 2 VR 233, 236.
Bravehearts therefore submits that where an inferior court or tribunal chooses to participate in proceedings by supporting its decision, its protection against a potential cost order disappears. Bravehearts accepts that Hardiman’s Case did not prevent the defendant from actively participating in the application for review in this case, because the matter would not have been remitted to the defendant and there was no other contradictor. However, it says that having chosen to defend its orders, the defendant must accept the costs consequences of adopting that position.
Bravehearts submits that in this case, although the defendant asserted that it did not “enter the fray” to uphold the orders made below, both the written and oral submissions of the defendant in fact clearly departed from the non-partisan position in Hardiman’s Case. It contends, in particular, that the defendant actively submitted that Bravehearts was not entitled to relief if it succeeded on the grounds of jurisdictional error, and actively resisted the grant of declaratory relief on the grounds that the orders were spent. It says that in so doing, the defendant conducted its case as an active contradictor, not within the limitations set out in Hardiman’s Case.
In this context, Bravehearts also alleges that the defendant actively resisted the application for a speedy trial and put the plaintiff to unnecessary proof regarding evidentiary matters, despite those evidentiary matters being its own transcripts, and despite the model litigant guidelines. In taking this stance, it acted like an ordinary litigant.
Consequently, Bravehearts says that it ought not to be deprived of its costs and the Court ought to exercise its discretion under s 24 of the Supreme Court Act in accordance with the normal principle in contested litigation that costs follow the event.
For its part, the defendant denies that it has stepped outside the non-partisan position in Hardiman’s Case so as to become exposed to a costs order absent serious misconduct, corruption or having acted perversely. In the alternative, it says that the Court has a broad discretion in the award of costs and that in the circumstances of this case, whether or not the defendant has stepped outside the non-partisan position in Hardiman’s Case, it should not be subject to an order for costs.
The question of whether the defendant became a protagonist in the case so as to lose the protection enjoyed by a tribunal that simply abides the decision of the court is a difficult one in the present circumstances, where the defendant was the sole contradictor and many difficult questions of fact and law arose.
The defendant says that its submissions went to matters of powers and procedure, including the power invested in the County Court by s 36A(3) of the County Court Act and to matters of practice and procedure relevant to the exercise of that power, the application of the hearing rule and the principles relevant to apprehended bias where the County Court is asked to vary an order previously made of its own motion. In addition to questions of power and procedure, the defendant submits that the case that it presented encompassed exploring the provenance of a transcript extract upon which Bravehearts relied, ensuring that relevant evidence was before the Court, drawing attention to facts that were not included in Bravehearts’ summary and making submissions as to factors militating against the grant of discretionary relief. In particular, the defendant says that in the absence of any other contradictor, it fell upon the defendant to raise for the Court’s consideration the appropriateness of granting relief in the nature of certiorari and the caution with which the Court should approach the grant of declaratory relief.
The defendant emphasises that it made no submissions at all as to the merits of the orders made by the County Court judge.
I accept that the defendant briefed counsel to appear and make submissions in order to be of assitance the Court. It had no interest in maintaining the Orders, as the Fisher trial had been completed and the Orders were accordingly spent. The defendant made submissions for the Court’s assistance on important questions raised in the proceeding in the absence of any other contradictor. Although it pursued its submissions with a certain amount of vigour, it did not, in my view, intervene in the proceeding for the purpose, as Brooking JA said in Magistrates’ Court (Vic) v Robinson, of “attempting to support its own decision”. [4] It is correct, to the best of my recollection, that no submissions were made by the defendant as to the merits of the Orders.
[4](2000) 2 VR 233, 236.
Much of what the defendant had to say involved the factual circumstances surrounding the making of the Orders. As Bravehearts was not involved in the making of the first Order, the defendant’s assistance in relation to the factual circumstances was invaluable to the Court. Those submissions in fact led to the Court concluding that the Orders were wider than even the trial judge thought necessary to ensure that the accused received a fair trial.
The assistance given by the defendant was especially useful for the Court in view of Bravehearts’ request that the application for review be heard and determined before the next White Balloon Day, which was only a week after the hearing date. Bravehearts had waited almost a year before bringing on its application. It then asked that the matter be heard and determined very quickly. The application raised numerous and complex grounds for review, all of which were maintained and argued in full.
In these circumstances, the Court was greatly assisted by having the defendant assume the role of contradictor and brief counsel to prepare written submissions and appear at the hearing of the application. Even if in some limited respects the defendant could be said to have taken on the role of protagonist rather than remaining purely neutral or ‘non-partisan’, in the exercise of the Court’s discretion under s 24(1) of the Supreme Court Act, it should not be ordered to pay Bravehearts’ costs. In the circumstances of this case, the general rule that costs follow the event should not apply.
Bravehearts was responsible for the urgency in hearing and deciding the matter and for the pressure that this put on the parties, counsel and the Court. Bravehearts decided to bring the matter on for determination, even though the trial to which the Orders related was well and truly over, the Orders were spent, and there would likely be no contradictor if the defendant did not take on that role.
Moreover, Bravehearts did not succeed in having the Court state authoritatively, as it invited the Court to do, that it would never be necessary to restrain the distribution of White Balloon Day materials if their content was general and no mention was made of any particular criminal trial. The Court held that the fact that there was no evidence that any of the White Balloon Day activities or materials referred to the Fisher trial or to particular issues raised in the Fisher trial did not necessarily deprive the County Court of jurisdiction to make an order prohibiting the distribution of White Balloon Day materials. Bravehearts was also unsuccessful in its grounds for review based on an alleged want of procedural fairness.
Finally, there is nothing in the allegations that have been made against the defendant concerning the provision of transcript or its resistance to the speedy trial application that should cause the Court’s discretion to be exercised otherwise than as I have indicated. Such conduct was in my view the result of the speed with which the matter had to be heard and determined.
Accordingly, as a matter of discretion, even if the defendant is to be treated as an ordinary litigant, there should be no order that the defendant pay Bravehearts’ costs of the proceeding.
In these circumstances it is unnecessary to decide whether the decision of the defendant was ‘perverse’ in the sense that it manifested obstinacy or persistence in error. However, I do not accept the proposition that his Honour did not properly apply his mind to the facts or law of the case. His Honour made an error in drawing orders that were wider than was permissible and wider than he himself intended. If Bravehearts’ application for costs fell to be decided according to whether the learned judge’s decision to make the orders was perverse, the application would fail.
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