Downey v Acting District Court Judge Boulton

[2011] HCATrans 109

[2011] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S243 of 2010

B e t w e e n -

RUTH DOWNEY

Applicant

and

ACTING DISTRICT COURT JUDGE BOULTON

First Respondent

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS

Second Respondent

DISTRICT COURT OF NEW SOUTH WALES

Third Respondent

THE STATE OF NSW

Fourth Respondent

GARY JOSEPH ASHTON

Fifth Respondent

LOCAL COURT OF NSW

Sixth Respondent

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 28 APRIL 2011, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR P.E. KING:   Your Honour, I appear for Mrs Downey.  (instructed by Sam Hegney Solicitors)

HER HONOUR:   Thank you, Mr King.

MR KING:   Subject to one thing, your Honour.  Sitting beside me is Mrs Ash, Mrs Downey’s sister, and her husband.

HER HONOUR:   Yes.

MR KING:   My instructions come from a firm in Walcha, Messrs Hegney & Co.  They have informed me that they are in the process of filing a notice of ceasing to act so I am really not in a position to take matters any further than that.

HER HONOUR:   Yes.  Mr King, thank you for your attendance this morning.  I should indicate there has been communication between Mrs Downey and the Court’s Registry.

MR KING:   I see.

HER HONOUR:   Mrs Downey has sent a set of submissions.

MR KING:   I am pleased to hear that, your Honour.

HER HONOUR:   She has also advised that, having regard to the travelling time and the expense, she would not be present today.  She makes no application for an adjournment of the proceedings.  She has made a request for her sister, Mrs Ellen Ash, to attend as her representative and I understand that Mrs Ash is present in Court.

MR KING:   And her husband, your Honour, both of whom are very familiar with the underlying facts and may be able to assist your Honour if there are any questions.

HER HONOUR:   Yes.

MR KING:   Would it be appropriate for me to excuse myself, your Honour.  I, of course, am very pleased to stay here and offer such assistance as I can, yet I do not wish to impede anything that Mrs Ash would wish to say.

HER HONOUR:   Yes.  Mr King, I am grateful for your appearance and I do excuse you.  Thank you.

MR KING:   If the Court pleases.

MS M. CASTLE:   May it please the Court, I appear for the second and fifth respondents.  (instructed by Smythe Wozniak)

HER HONOUR:   Thank you, Ms Castle.  I should indicate that the Court has received correspondence from the Crown Solicitor’s Office advising that the State, the fourth respondent in the proceedings, does not seek an order for its costs in relation to the special leave application and the indication was that the fourth respondent would not attend today.  The State takes a neutral position with respect to the relief that the second and fifth respondents claim in their summons.  I note that submitting appearances have been filed on behalf of the first, third and sixth respondents.

MS CASTLE:   Thank you, your Honour.

HER HONOUR:   Perhaps I might just inquire, Ms Castle, you heard my exchange with Mr King.  Mrs Ash, who I understand is the sister of the applicant, Ruth Downey, has attended Court today.  She is presently seated at the Bar table.  My inclination would be to permit Mrs Ash to remain where she is.  After I have heard from you – and it may be that I would wish to take something up with Mrs Ash.  However, I have the benefit of lengthy written submissions that have been filed by the applicant.  I take it you have a copy of those?

MS CASTLE:   Yes, I do.  Thank you, your Honour.

HER HONOUR:   Is there anything you wish to say about those matters?

MS CASTLE:   I do not wish to be heard on that matter, your Honour.

HER HONOUR:   Yes, thank you.  Yes, do proceed.

MS CASTLE:   Your Honour, the second respondent in the special leave application, the Royal Society for the Prevention of Cruelty to Animals, and the fifth respondent, Gary Joseph Ashton, who was the informant, apply for their costs of the special leave application.  Does your Honour have the summons filed on 8 April 2011?

HER HONOUR:   Yes, I do.

MS CASTLE:   And the affidavit in support of Mr Andrew Clachers affirmed on 7 April 2011.

HER HONOUR:   Yes, I do.

MS CASTLE:   Your Honour, I read that affidavit in support of the summons.

HER HONOUR:   Yes.

MS CASTLE:   Your Honour, the position simply is this.  In the submissions filed in support of its special leave application, the applicant was required to say how the Court ought to deal with costs and in Part 5 on the – according to the pro forma Part 5 is costs.  It is said there costs should abide the event.  Your Honour, I can hand this up if you would like to see it.

HER HONOUR:   I have a copy of the application book. 

MS CASTLE:   Yes, page 174 of the book.

HER HONOUR:   Yes.  I note that the second and fifth respondents in their summary of argument, in that part of the summary in conformity with the Rules that requires a statement of the position with respect to costs, indicated that they were seeking their costs.  The State, which was the fourth respondent, in that part of its summary of argument put the neutral submission that there was no reason that costs should not follow the event.  So that was the position as far as the papers that were filed were concerned.  The matter naturally that troubles me, Ms Castle, is the matter to which the applicant in her summary addresses attention which is that the application should have been pressed on the day when it was before the Court, constituted as it then was by the Chief Justice, Justice Gummow and Justice Kiefel.

MS CASTLE:   Your Honour, that certainly would have been a preferable course of events, but in fact, as your Honour knows, it did not occur.  The Court did not turn its mind to costs and counsel did not ask the Court to turn its mind to costs on that day.

HER HONOUR:   The difficulty that I have with that submission is you say the Court did not turn its mind to costs.  It is not necessarily evident that that is so.  The Court made no order for costs.  That does not carry with it that the Court did not consider that to be the appropriate order in the circumstances.

MS CASTLE:   There is simply an absence of any indication in the transcript of 11 March – it would be my submission, your Honour – as to whether the Court considered it or not.  An order that the Court might have made had it considered it might have been each party pay their own costs of the application.  That would have made it clear that it had turned its mind to it.  The absence of an order or any words in relation to costs I submit indicate that certainly the Court has not made a determination and it is open to your Honour to do so. 

We do not say that there is any presumption in favour of costs for the second and fifth respondents, but we seek them on the basis that at all levels of this dispute the applicant was unsuccessful in very long proceedings in the Local Court, in very long proceedings in the District Court.  Six judgments have emanated from the Court of Appeal in Downey v RSPCA and again in this Court the applicant found no success. 

She was represented in the District Court, the Court of Appeal and this Court by very experienced counsel and a firm of solicitors.  She was presumably taking legal advice.  The RSPCA as deposed to in the affidavit of Mr Clachers is a registered charity which does the work under its charter largely by way of donations.  That is the reason it seeks its costs and that is the reason that that evidence is provided by Mr Clachers, that it carries out its prosecutorial function on the basis that if costs are awarded in its favour it is indemnified for those costs.  If costs are not awarded, then it is not.

It is not the public purse that picks up the costs of prosecutions and nor does it have any form of legislative indemnity for its costs.  It has a public function to fulfil, but a public function without being publicly funded largely.  Mr Clachers says in his affidavit that the funding is about 2 per cent governmental and 98 per cent privately funded.

HER HONOUR:   Ms Castle, I have some difficulty with the relevance of the submissions that you have just advanced and that are set out in your written submissions with respect to the lengthy proceedings, both in the Narrabri Local Court, subsequently in the District Court and in the Court of Appeal.  I am concerned, so it seems to me, with whether or not I should now exercise the discretion to make an order in relation to the discrete question of the costs of the special leave application in circumstances in which that application was heard orally before a Bench of three Justices, an order was made, the second and fifth respondents were present on that occasion and legally represented and did not press any application for costs.  That is the matter that ‑ ‑ ‑

MS CASTLE:   In that case, your Honour, I will confine my submission to that matter.

HER HONOUR:   Yes.

MS CASTLE:   Your Honour, the question is does that disentitle them from later seeking costs.

HER HONOUR:   Ms Castle, one practical matter is this.  It is not in the interests of the administration of justice for parties to not press for an order to which they claim an entitlement at the time of the proceedings and to bring subsequent proceedings occasioning more costs.  That is a practical matter with respect to the administration of justice that would seem to me to have some force to it.

A second matter is that whilst the proceedings were an application for special leave to appeal from orders made in the Court of Appeal in its supervisory jurisdiction, the background to the proceedings involves allegations of criminal conduct which were found to have been proved, albeit dealt with under section 10 of the Crimes (Sentencing Procedure) Act. 

That circumstance might have been a discretionary reason against the making of an order for costs, a discretionary consideration in the minds of those Justices who determined the application on the day when it was before the court and when, as I have already noted, the second and fifth respondents were present and legally represented and in a position to put such arguments as might have been put and at a time when the applicant was legally represented.  These are considerations that at present weigh, in my view, somewhat against acceding to your application.

MS CASTLE:   Your Honour, I hear what has fallen from your Honour and thank you for the benefit of it.  In relation to the fact that the application is brought now, the only prejudice that is suffered – or a prejudice that would be suffered by Mrs Downey would be costs of today.  That could be excluded from your Honour’s consideration and your Honour’s consideration could be confined to the costs of preparing and responding to the special leave application.  The applicant, it is true, is no longer legally represented.  Your Honour, in that regard I hand up a document if I may.

HER HONOUR:   Yes.  Could I just get you to show it to Mrs Ash.

MS CASTLE:   Your Honour, that is a letter from Mrs Downey’s solicitor, Messrs Hegney, to Smythe Wozniak, the RSPCA’s solicitors.  I draw your Honour’s attention in particular to the paragraph that says “Regrettably, we have been unable to convince our client”.

HER HONOUR:   The letter relates to the signing of the bond under section 10.

MS CASTLE:   Yes, and in relation to the correspondence that was sent to Messrs Hegney in relation to this application.  The only submission I make about that, your Honour, is that Mrs Downey – you say Mrs Downey did not have the benefit of legal – or no longer has the benefit of legal advice and assistance but in respect of this application she has had that.

HER HONOUR:   The difficulty, Ms Castle, as I see it from your client’s perspective, is that she had the benefit of counsel at the hearing of the argument before the Justices who determined the application.  For whatever reason, she is without the benefit of counsel today.  It is not necessarily determinative but it is an indication why, in the interests of justice, it is desirable that orders for costs be applied for at the time, as distinct from being the subject of subsequent application.

MS CASTLE:   Yes.  Your Honour, in general terms that is no doubt the case and I do not wish to be heard against that proposition, only to say that the second respondent is no ordinary litigant in the sense that it has a prosecutorial duty to carry out, which it self‑funds, and it was, of course, as a respondent brought to this Court to respond to the application.  It had not choice.  It was not the moving party.  It is for that special circumstance, your Honour, if this were an ordinary litigant there may be little to say in response to your Honour’s proposition, but this is a special case where, because of matters of funding and the peculiar situation of prosecutions under the Prevention of Cruelty to Animals Act it would be unfair in these circumstances to deny the respondent the costs for that reason alone, your Honour, but there may be other matters but I am simply answering your Honour’s proposition in relation to the application not having been made at the time.

HER HONOUR:   Thank you.

MS CASTLE:   Your Honour, may I just say in relation to Mrs Downey’s submissions and those of Mrs Ash, they contain material that is not merely submission ‑ ‑ ‑

HER HONOUR:   I am sorry to interrupt you, Ms Castle, but I have the submissions of the applicant filed on 27 April 2011.  In addition to that document – that is a document – my apologies, I understand now.  I see that that document is signed by Mrs Ash.  Since it read “Applicant’s Submissions” I had rather understood that they were the submissions of Mrs Downey.  Do you have any objection to me having regard to any part of – I understand that you have objection to some parts of the submissions signed by Mrs Ash, but do you have objection to the whole of the submissions because of some ground that Mrs Ash is not a legal practitioner ‑ ‑ ‑

MS CASTLE:   Your Honour, I do in this sense.  My submission is that you ought not to receive them because, given that they are not prepared by a legal practitioner, they intermix fact, submission - there are matters there that if they are to be before your Honour ought properly be before your Honour by way of proper evidence.  We received Mrs Ash’s submissions yesterday.  There are matters that we take issue with and to the extent that it is a matter of prejudice for those matters to be put to your Honour without being put by way of evidence, I do object to your Honour receiving them.

HER HONOUR:   I understand that, Ms Castle.  The document filed on 27 April 2011 titled “Applicant’s Submissions”, a four‑page typed document to which there are a number of annexures, contains a deal of factual material which is not only not in proper form but would be, in any event, irrelevant to the application.

MS CASTLE:   Irrelevant, yes, your Honour.

HER HONOUR:   In the circumstances, I would not have regard to any of that material.  The one matter that I note at the commencement of those submissions is the statement that the applicant opposes the relief claimed in your summons and the assertion that your clients are “out of order asking for costs which should have been applied for on 11 March 2011”.  The submission is not further developed.  It is a matter that I have raised with you, since it seems to me in the administration of justice a matter appropriate for the Court to take into account.  I think you can proceed, Ms Castle, on the basis that I would not have regard to the balance of the submissions that are argumentative and contain statements of fact that are, in any event, irrelevant.

MS CASTLE:   Yes, your Honour, on that basis I have no objection to your Honour taking those into account.

HER HONOUR:   Yes.

MS CASTLE:   Your Honour, does your Honour have my written submissions, just for the record?

HER HONOUR:   I do, indeed.  I have your submissions, Ms Castle, filed on 27 April 2011 and I can indicate, as I think I did earlier, that I have read those submissions.

MS CASTLE:   Yes, thank you, your Honour.

HER HONOUR:   Is there anything further?

MS CASTLE:   I have nothing further.

HER HONOUR:   Thank you.  Mrs Ash, I do not need to hear from you.

MRS ASH:   I would just like to make one comment, if I could, your Honour.

HER HONOUR:   Mrs Ash, I do not wish any discourtesy to you, but in light of the determination that I have in mind, it is not necessary for you to say anything further.  Do you understand?

MRS ASH:   Thank you, your Honour.

HER HONOUR:   The second and fifth respondents, by summons filed on 8 April 2011, claim an order that the applicant pay their costs of the special leave application heard on 11 March 2011, together with their costs of the summons.

The applicant is an elderly lady who lives on a farming property near Narrabri.  She has not appeared today.  By letter dated 26 April addressed to the Sydney Registry of the Court she stated that she was unable to attend due to what she described as late notice and to the travelling time and expense associated with attending Court today.  She requested that her sister, Mrs Ellen Ash, attend as her representative. 

Mrs Ash has attended the Court today and has signed written submissions that were filed in the Registry on 27 April 2011.  For reasons explained in the exchange between myself and counsel for the second and fifth respondents, I have not had regard to those submissions, save to the extent of noting the relief claimed in the summons is opposed on the ground that any application for costs should have been pressed on the occasion when the application for special leave was before the Court, constituted, as it then was, by the Chief Justice, Justice Gummow and Justice Kiefel.

Submitting appearances have been filed by the first, third and sixth respondents.  The fourth respondent, the other active respondent in the special leave application, the State of New South Wales, has not appeared.  The State does not seek an order for its costs in relation to the special leave application and adopts a neutral position with respect to the relief claimed by the second and fifth respondents in their summons.

In October 2008, the Narrabri Local Court found 96 offences that were alleged against the applicant to be proved. Without proceeding to a conviction the applicant was discharged in respect of each of those matters upon condition that she enter a good behaviour bond. She was ordered to pay the prosecutor’s costs. The applicant appealed against the orders made by the Local Court pursuant to section 11 of the Crimes (Appeal and Review) Act 2001 (NSW). Her appeal was dismissed. She was ordered to pay the costs of the second respondent, both of the proceedings in the Local Court and in the District Court. Those costs amounted to some $458,000 or a little more.

In January 2010, the applicant commenced proceedings in the Court of Appeal, by summons in that court’s supervisory jurisdiction, by which she sought to challenge both the validity of the orders made in the Local Court and in the District Court.  On 15 September 2010, the proceedings were dismissed.  The applicant was ordered to pay the costs of the second and fifth respondents. 

Following the making of those orders, the State moved by notice of motion seeking an order for its costs which, by oversight, had not been made the subject of order.  The Court of Appeal corrected that error under the slip rule in order to give effect to the intention stated in its reasons that the applicant, as the losing party, should pay the costs of the proceedings. 

The applicant applied for special leave to appeal from the orders of the Court of Appeal made on 15 September 2010.  That application came before this Court constituted by the Chief Justice, Justice Gummow and Justice Kiefel on 11 March 2011.  The second and fifth respondents were represented on that occasion.  The Solicitor‑General appeared on behalf of the fourth respondent and the applicant was represented by counsel.  The application was dismissed.  The Court did not make an order for costs.  That is the background to the present summons.

In written and oral submissions some attention was directed to the length of the proceedings, both in the Local Court and the District Court.  The relevance of those submissions to the determination of the relief claimed in the summons was not pressed by counsel in the course of the oral hearing.  Each of the parties to the special leave application in the summary of argument stated her, its or his attitude to costs.  The summary of argument is, of course, filed in circumstances in which it is contemplated that the application might be dealt with on the papers.  This application was listed for hearing and proceeded upon oral argument.  No application was advanced at that time for costs.

The background to the proceedings, as I have noted, is the adverse finding, namely that each of the offences, criminal in nature, were found proved against the applicant.  The circumstance that the applicant was seeking to challenge findings of that character may have afforded discretionary reasons, as counsel fairly concedes, for a departure from the ordinary order that costs follow the event.  It was properly a matter for determination by the Bench dealing with the application.  No satisfactory explanation is provided for the failure to apply at the time for the order. 

In the circumstances I do not consider the appropriate exercise of my discretion to be to make the order that is claimed in the summons.  I decline to do so.  The summons is dismissed.  I make no order with respect to the costs of the summons.  Thank you.

AT 10.07 AM THE MATTER WAS CONCLUDED