Francesco Madafferi v The Queen [No 2]
[2021] VSCA 4
•29 January 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0045
| FRANCESCO MADAFFERI | Applicant |
| v | |
| THE QUEEN [No 2] | Respondent |
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| JUDGES: | EMERTON, WEINBERG and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2020 and 19 January 2021 |
| DATE OF JUDGMENT: | 29 January 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 4 |
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CRIMINAL LAW – Practice and procedure – Costs – Application for leave to appeal against conviction – Application for public interest immunity by Chief Commissioner of Victoria Police in relation to materials sought for production to applicant for leave to appeal – Whether applicant entitled to costs of public interest immunity application – Whether public interest immunity application ‘proceeding preliminary or incidental’ to appeal – Public interest immunity application incidental to appeal – Court lacks power to award costs to applicant – Criminal Procedure Act 2009, s 409(c).
COSTS – Amici curiae – Confidential submissions and material requiring assistance of amici curiae and circumscribing role of parties – Whether an exceptional case justifying costs award in favour of amici curiae – Amici curiae independent counsel whose services requested by Court – Participation of amici curiae necessary to conduct of proceeding – Involvement of amici curiae significantly exceeded scope of initial request – Submissions of amici curiae successful and of considerable assistance to Court – Costs awarded.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Madafferi | Ms C A Boston | Condello Lawyers |
| For the Director of Public Prosecutions (Cth) | Ms C Fitzgerald | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Chief Commissioner of Victoria Police | Ms S Maharaj QC with Ms K Chan | Mr M Hocking, Victorian Government Solicitor |
| As Amici Curiae | Mr C T Carr SC with Ms R Shann and Ms K E Foley |
EMERTON JA
WEINBERG JA
OSBORN JA:
Introduction
The applicant, Francesco Madafferi, has applied for leave to appeal his 2014 conviction for drug trafficking.
On 24 May 2020, Madafferi made an application, pursuant to s 317 of the Criminal Procedure Act 2009, for orders that the Chief Commissioner of Victoria Police (‘Chief Commissioner’) produce certain material, including material relating to communications between his former solicitor, Joseph ‘Pino’ Acquaro, and members of Victoria Police (see particulars (e), (f) and (g) of the application). The Chief Commissioner applied for a ruling that he not be required to produce documents to Madafferi on the basis that any relevant documents or information in his possession were protected from disclosure by public interest immunity (‘PII application’).
On 19 January 2021, the Court refused the PII application, to the extent it related to the existence or non-existence of information as to whether or not Mr Acquaro was or was not a police informer.
Madafferi now seeks his costs of the PII application on an indemnity basis from the Chief Commissioner.
Madafferi was represented by counsel briefed to oppose the PII application. Madafferi’s counsel had access to the submissions and affidavits filed by the Chief Commissioner, but only to the extent that the submissions and affidavits were ‘open’, that is, to the extent that they were not confidential. In order to preserve the subject matter of the PII application, most of the hearing was conducted in closed court in the absence of Madafferi and his counsel, and the vast majority of the materials filed by the Chief Commissioner were confidential materials. As a consequence, the Court obtained the assistance of amici curiae, who considered and made submissions about the confidential materials and as to the merits of the PII application generally.
The amici curiae now also seek their costs in the PII application.
Applicant’s costs
Section 24 of the Supreme Court Act 1986 provides:
(1)Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
(2) Nothing in this section alters the practice in any criminal proceeding.
Section 409 of the Criminal Procedure Act provides:
No costs are to be allowed to a party to—
(a) an appeal under Part 6.3 or 6.4; or
(b) a new trial; or
(c) a proceeding preliminary or incidental to an appeal or new trial.
The Chief Commissioner submits that the effect of s 409 of the Criminal Procedure Act is that the Court has no power to award costs to Madafferi for the hearing and determination of the PII application, which is ‘a proceeding preliminary or incidental to’ Madafferi’s appeal under pt 6.3 (or, alternatively, pt 6.4).
Madafferi submits this was not ‘a proceeding preliminary to or incidental to’ his appeal; such preliminary or incidental proceedings would include (for example) directions hearings related to the conduct of the appeal, applications for leave to appeal, and elections. Here, by contrast, a third party (the Chief Commissioner) made an ancillary application which sought to deny him material to which he was ultimately found to be legally entitled. Madafferi further submits that the general practice that in criminal proceedings the Crown neither pays nor receives its costs does not apply in this case and that, in any event, the circumstances of this case are so exceptional that an order for indemnity costs is warranted.
We consider that s 409 of the Criminal Procedure Act precludes an order for costs in favour of Madafferi. The PII application was made in Madafferi’s appeal, which is an appeal against a criminal conviction under pt 6.3 (or pt 6.4) of the Criminal Procedure Act. Madafferi is plainly a ‘party’ to the appeal and continued to be a party for the purposes of the PII application. Insofar as the Chief Commissioner had an obligation at common law to disclose the materials to Madafferi, that obligation arose in, or as a direct consequence of, the appeal. Likewise, the requirement to produce documents under s 317 of the Criminal Procedure Act applied to documents ‘connected with’ a proceeding under pt 6.3, that is, to documents connected with Madafferi’s appeal. In our view, therefore, the PII application may be described as a proceeding ‘incidental’ to the appeal, in that it naturally attaches to, follows from or forms part of the appeal. Put more simply, it was an incident of the appeal.
Accordingly, the Court has no power to order costs in favour of Madafferi and his application to be paid his costs of the PII application must be dismissed.
Amici Curiae costs
On 2 October 2020, this Court made orders requesting, through the Victorian Bar Pro Bono Barristers Court Referral Scheme, the services of senior and junior counsel to act as amici curiae in the PII application.[1]
[1]Orders in the same form were made in respect of a similar PII application in the application for leave to appeal against conviction of another of Mr Acquaro’s clients, Saviero Zirilli. See Zirilli v The Queen [2020] VSCA 2 and Zirilli v The Queen [No 2] [2020] VSCA 5.
The Court’s orders recorded that it was in the interests of the administration of justice that the request be made. The assistance of the amici curiae was sought to:
(a) examine the submissions and materials filed by the Chief Commissioner in support of the application, including confidential submissions and material;
(b) file submissions and any other materials in response; and
(c) appear and make submissions at the hearing of the PII application.
At the time the Court’s orders were made, it was thought that the PII application was relatively confined and anticipated that it would be heard in a single day.
Senior counsel and two junior counsel were duly appointed as amici curiae. Following their appointment, the Chief Commissioner filed a large body of material consisting of confidential affidavits and submissions. The amici curiae prepared and filed comprehensive submissions in response. They appeared and made oral submissions at the hearing of the PII application on 18 November 2020.
Following the hearing, the Chief Commissioner filed and sought to file copious further material. The amici curiae were called upon at short notice to review and respond to this material, and they filed supplementary submissions.
Following the publication of the Court’s judgment, on 19 January 2021, the amici curiae appeared at a further hearing concerning the redaction and publication of the judgment. At this hearing, the amici curiae sought a costs order in their favour.
Having regard to the somewhat exceptional way in which the PII application developed, the importance of the assistance provided by the amici curiae, and for the reasons that follow, the Court will order that the amici curiae be paid their costs on the standard basis.
Applicable principles
The principles applicable to the making of a costs order in favour of amici curiae were not in dispute. The Court’s costs jurisdiction extends to making costs orders in favour of non-parties, including in criminal or quasi-criminal proceedings.[2] Costs may be ordered in favour of (and against) amici curiae. However, a costs order in favour of amici curiae will only be made in an exceptional case, where it is appropriate to depart from the usual position that amici curiae bear their own costs.[3]
[2]Supreme Court Act 1986, s 24. See, eg, Director of Public Prosecutions (Cth) v Brady (2019) 58 VR 628, 640 [64]; [2019] VSC 397 (Hollingworth J).
[3]See, eg, Campbelltown City Council v Vegan (2006) 67 NSWLR 372, 384 [64] (Basten JA, Handley JA relevantly agreeing at 374 [1], McColl JA agreeing at 377 [33]); [2006] NSWCA 284; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149, [116] (Campbell JA, Hodgson JA agreeing at [1], Handley AJA relevantly agreeing at [118]) (‘Riverina Wines’); Attorney-General (WA) v Marquet (2003) 217 CLR 545, 576 [86] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 638 [303] (Callinan J); [2003] HCA 67 (‘Marquet’).
Whether a particular case is an exceptional case justifying a costs order in favour of amici curiae depends on the circumstances, including the nature of the case, and the nature of the amici curiae’s involvement and contribution. The following matters may be relevant in that assessment:
(d) whether the amici curiae were appointed by, or appeared at the request of, the Court, as opposed to having successfully sought leave to appear;[4]
[4]Federal Commissioner of Taxation v Administrative Appeals Tribunal (2011) 191 FCR 400, 404 [12]; [2011] FCAFC 37 (Keane CJ and Gordon J) (‘FCT v AAT’); Re Kumar [2017] VSC 81, [5] (McMillan J) (‘Kumar’); Federal Commissioner of Taxation v Warner [No 2] [2015] FCA 1281, [16]–[17], [36] (Perry J) (‘Warner’).
(e) whether the proceeding depended on the participation of 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;[5]
[5]FCT v AAT (2011) 191 FCR 400, 404 [12]; [2011] FCAFC 37 (Keane CJ and Gordon J); Warner [2015] FCA 1281, [36] (Perry J). See also Marquet (2003) 217 CLR 545, 618 [219]; [2003] HCA 67 (Kirby J); Kumar [2017] VSC 81, [5] (McMillan J); Forestry Tasmania v Ombudsman [No 2] [2010] TASSC 52, [26] (Porter J) (‘Forestry Tasmania’). This factor is similarly relevant to resisting an application for costs against an amicus: see WHV v Commissioner of Police [2014] WASCA 153 (S), [16] (Martin CJ, Buss and Murphy JJA) (‘WHV’).
(f) whether the submissions of the amici curiae were of particular or significant assistance to the Court;[6]
[6]FCT v AAT (2011) 191 FCR 400, 404 [12]; [2011] FCAFC 37 (Keane CJ and Gordon J); Warner [2015] FCA 1281, [36] (Perry J); Forestry Tasmania [2010] TASSC 52, [26] (Porter J).
(g) whether the submissions of the amici curiae assisted in resolving issues of wider legal importance, transcending the interests of the parties to the proceeding;[7]
[7]See, eg, Marquet (2003) 217 CLR 545, 618 [219]; [2003] HCA 67 (Kirby J); Warner [2015] FCA 1281, [1], [36] (Perry J); FCT v AAT (2011) 191 FCR 400 403–4 [11]–[12]; [2011] FCAFC 37 (Keane CJ and Gordon J). This factor is similarly relevant to resisting an application for costs against an amicus: see WHV [2014] WASCA 153 (S), [15]–[16] (Martin CJ, Buss and Murphy JJA).
(h) whether the amici curiae were independent counsel appointed to assist the Court and the administration of justice,[8] or an interested non-party, such as a statutory body or officer of the Crown;[9] and
(i) the outcome of the proceeding, although it is not a bar to a costs order in favour of amici curiae that their arguments were unsuccessful.[10]
Submissions
[8]FCT v AAT (2011) 191 FCR 400, 404 [12]; [2011] FCAFC 37 (Keane CJ and Gordon J).
[9]Compare the orders in favour or for the costs of independent counsel acting as amici curiae in FCT v AAT, Warner and Kumar with absence of orders as to the costs of statutory bodies and government officials acting as amici curiae in Vegan, Riverina Wines and Marquet.
[10]Marquet (2003) 217 CLR 545, 618 [219]; [2003] HCA 67 (Kirby J); Warner [2015] FCA 1281, [36] (Perry J); Kumar [2017] VSC 81, [120] (McMillan J).
Although they agreed to appear pro bono, the amici curiae submitted that this was an extraordinary case justifying an order for their costs. They submitted that it was significant that they had been appointed at the Court’s request, in circumstances where the conduct of the proceeding depended on their involvement, and that their submissions were, as was recognised by the Court, of great assistance. Further, it was relevant that the scope of their involvement had expanded quite significantly following their appointment, requiring, amongst other things, the review of lengthy further materials, a further hearing, and the filing of supplementary submissions.
The Chief Commissioner neither opposed nor consented to the amici curiae’s application for costs. He acknowledged that the involvement of amici curiae was necessary in the circumstances of the case, and that they had made a valuable contribution. However, he discounted the unanticipated expansion in the scope of their involvement, which he characterised as a possibility inherent in any pro bono brief.
The Chief Commissioner also cautioned against the precedential value of a costs award in favour of amici curiae.
Discussion
We consider that this was an exceptional case justifying an award of costs in favour of the amici curiae. They are entitled to be compensated for the enormous amount of time and effort demanded of them, especially as the circumstances required their involvement and they otherwise had no interest in the outcome of the PII application.
The amici curiae, independent counsel with no interest in the proceeding, were appointed at the request of the Court and in the interests of the administration of justice. The involvement of the parties to the appeal was necessarily circumscribed and the amici curiae effectively played the role of contradictor. The fair and just determination of the PII application depended heavily on their involvement.
Furthermore, as a result of circumstances beyond their control, the scope of the amici curiae’s involvement significantly exceeded the scope of the original request. They were put under considerable time pressure and required to work very close to Christmas day and during the legal vacation. Their written and oral submissions, including the supplementary submissions, were of very high quality and of great assistance to the Court. They dealt with issues of wider legal significance, likely to be relevant in related applications.
In this exceptional combination of circumstances, it is appropriate that the amici curiae have their costs.
Accordingly, the Court will order that the Chief Commissioner pay the amici curiae’s costs of the PII application on the standard basis.
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