Pham v Taylor and Magistrates' Court of Victoria

[2000] VSC 567

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 5696 of 1999

VAN HONG PHAM	Plaintiff
v
KENNETH IVAN TAYLOR	Firstnamed Defendant
and
MAGISTRATES' COURT OF VICTORIA	Secondnamed Defendant

---

JUDGE:	Nathan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2000
DATE OF JUDGMENT:	16 March 2000
CASE MAY BE CITED AS:	Pham v Taylor and Magistrates' Court of Victoria
MEDIUM NEUTRAL CITATION:	[2000] VSC 567

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Heaton	Kuek & Associates
For the Firstnamed Defendant	Mr B. Kayser	Office of Public Prosecutions
For the Secondnamed Defendant	Ms M. Lodge	Victorian Government Solicitor's Office

HIS HONOUR:

1. I have before me two applications made pursuant to Order 63, Rule 23 of the Supreme Court Rules.  Those applications are for costs indemnities.  They are made by the two defendants in Action 5696 of 1999.  The first applicant is Mr Taylor, who was the original police informant in prosecutions launched against Mr Pham, the plaintiff.  The second applicant is the Magistrates' Court of Victoria.  I had indicated, upon giving judgment in the substantial matter, that I was minded to entertain applications to this court and, accordingly, I gave Mr Kuek, the solicitor for Mr Pham, the advantage of being heard in person.  I indicated to him at that time, the reasons (or some of them), which I thought might warrant an application of the present kind.

1. He requested and obtained an adjournment until this day at a time suitable for counsel of his choice.  I have heard argument by the applicants and, of course, the argument and contentions in reply on behalf of Mr Kuek, submitted by Mr Heaton of Counsel.  I say at the outset that it is somewhat unusual to hear an application of this kind from the Magistrates' Court.  However, in this case, I consider the application warranted for the reason that the Magistrates' Court appeared at the hearing before me to argue the limited issue as to whether or not the jurisdiction of such courts is suspended by the filing of a notice of motion seeking prohibition.

1. That issue, which I resolved in the hearing, is a critical one for the proper operation of the jurisdiction of the Magistrates' Court.  As one of the central arguments advanced by Mr Pham concerned the displacement of the jurisdiction of the Magistracy, this issue invited and received the appropriate attention of the Victorian Government Solicitor's Office.

1. Comments were made by the Court of Appeal in Etna and Anor. v. Arif (1999) VConvR paragraph 54.609 to the effect that applications of this kind should be made as a last resort rather than as a first.  Perhaps that is putting too highly the comment of the court but, nevertheless, they are not to be made in a cavalier way. I consider that, for the foregoing reasons, it was proper and appropriate for the Victorian Government Solicitor's Office to be represented before me and to make this application.

1. I turn now to it and the rules.  As appropriately edited and in alignment with the arguments put forward by the applicants, O63r23 reads:

“Where a solicitor has caused costs to be incurred improperly or without reasonable cause by negligence or any other misconduct or default, the Court may make an order that .... (c) the solicitor pay all or any of the costs payable by any party other than the client.”

1. There is no need for me to rehearse the judgment but the trial raised eight issues, which were advanced in the court below and again before me.  I, of course, have jurisdiction to award costs in respect of the Supreme Court hearing.  I do not intend to revisit the Magistrates' Court proceedings, where an application for costs was made and subsequently refused.  Therefore, be it plain that I am disposing of the costs issues raised in the hearing before me and nowhere else. 

1. The arguments submitted before me commenced with a contention that the magistrate, Mr Couzens, by continuing to hear the case, denied Mr Pham the counsel of his choice.  That counsel was Mr Perkins.  Mr Perkins had been convicted by the magistrate of some street offences but there is no need for me to detail them.  This caused Mr Perkins some personal embarrassment. However, he was at all times aware that the brief he held concerned a case that was to be heard by Mr Couzens.  The court mechanisms at Dandenong set up a particular fixed date for hearing before a named and nominated magistrate.  As I observed in the judgment, and I repeat here, if there was any embarrassment, it was personal to Mr Perkins.  Accordingly, such circumstances could not, in my view, have caused any reasonable observer to apprehend that the magistrate would express bias towards Mr Pham.

1. The magistrate rejected the argument and when it was recast before me, relying upon the transcript exhibited by Mr Pham, I too rejected the argument.  I consider that it was an argument which could not have possibly succeeded and was hopeless from its inception - its chances of success almost so remote as to be forlorn.  If Mr Perkins felt any personal embarrassment in the first instance, he should have withdrawn.  It would appear that the brief was delivered to him some two to three months before the fixed date for hearing.  Although Mr Kuek had advised the court that he was dissatisfied with the nomination of Mr Couzens as the magistrate, it is not for him to set the court calendar nor to dictate the assignment of cases before particular magistrates.

1. I do not consider that a solicitor, aware of the embarrassment of the counsel retained by him in appearing before a particular magistrate, can then transfer that difficulty to the magistrate and sustain thereby an argument of ostensible bias.  The case - one of drug trafficking and possession - is unfortunately familiar to the courts.  It did not require any particular expertise of which Mr Perkins or a limited number of barristers alone were possessed.

1. Be that as it may, on the critical objective test, to which I have referred in the judgment, I am satisfied that no reasonable observer and no reasonable solicitor could have apprehended that the magistrate would have been biased.  I accept that Mr Nash, one of Her Majesty's Counsel, properly put the argument before me and do not consider any opprobrium can attach to his advocacy or to the prosecution of a hopeless argument.  I am satisfied he was so instructed.  Nevertheless, the argument remained without merit from the moment of its inception.

1. The second set of matters which were argued before me related to the allegation that the magistrate had wrongfully set aside subpoenas.  As I have observed, no magistrate could possibly have upheld the terms of the subpoenas in issue and this allegation of ostensible bias bordered on the absurd.

1. The third set of arguments advanced by Counsel for Mr Pham alleged that the magistrate was ostensibly biased by refusing an adjournment to brief new counsel.  In response, I repeat the observations I have already made.  It was plain that Mr Perkins was, in this instance, an inappropriate counsel and, in any event, the magistrate did adjourn the matter, albeit for a brief time.  This argument was simply absurd.

1. The fourth matter concerned an allegation that the magistrate displayed bias by refusing an application to adjourn the proceedings in order to allow Telstra to respond to its subpoena, which it then said it could do so.  As it would have taken three to four months for a response to be forthcoming, this again was a ground which lacked any credibility at all and was hopeless.

1. The fifth matter concerned an alleged display of bias by the magistrate in failing to adjourn the proceedings to allow an application for an order to review to be taken out.  The argument is simply hopeless.  The magistrate did adjourn and did do so for a number of hours.  This would have enabled an application to have been made to the Practice Court whereas, in fact, none was.

1. The sixth set of allegations were that the magistrate displayed bias by refusing to stand the matter down when advised that an originating motion had been filed.  It was this ground which attracted the attention of the Magistrates' Court.  This ground was meritless and a reading of Order 56 of the rules of this court would have revealed as much.  Prohibition runs upon pronouncement of the order, not upon the filing of an application for one.  The magistrate properly said that he would cease adjudication when an order was served upon him.  No such order was served.  This ground was also meritless and hopeless.

1. A further alleged ground of bias related to a ruling by the magistrate refusing an application for further and better particulars.  At that time, Mr Kuek held the police brief and had knowledge of all the circumstances of the alleged offences.  Any issue as to the duplicity of charges could well have been argued as a separate and distinct matter.  It was not.  Moreover, the request for particulars in the circumstances was ludicrous.

1. The final matter concerned an alleged display of bias in that the magistrate insisted upon putting Mr Pham to his election as to whether he wanted a summary hearing or a trial.  It was argued that such insistence on the part of the magistrate was wrongful in the presence of the knowledge of the filing of a Notice of Motion.  In my view, the magistrate was simply performing his duty.  For the reasons already given, he could do nothing else.  This ground had no substance.

1. I am of the opinion that each of the grounds considered separately, or in any combination, reveal the paucity, flimsiness and tendentiousness of the plaintiff's case.  I consider that the plaintiff, in having put and argued these matters yet again before me, advanced a case which, in the given circumstances, was hopeless and unreasonable.  The submission of hopeless and tendentious arguments, as occurred in the Magistrates' Court, was repeated in this court.  Accordingly, the liability under O63r23 arose afresh in the proceedings before me.

1. I turn now to some of the appropriate authorities.  I am familiar with White Industries (Qld) Pty Ltd v. Flower and Hart (a firm) (1998) 156 ALR 169. It is a judgment of Justice Goldberg at first instance. It related to hopeless arguments being put in respect of bankruptcy proceedings. His Honour considered the Court of Appeal decision in Ridehalgh v. Horsefield [1994] Ch 205 and indicated that there were statements of principle therein which were relevant to the Australian jurisdiction. His Honour referred to earlier English cases in which orders had been made against the opposing party's solicitors for costs incurred as a result of improper, unreasonable or negligent acts or omissions on their part. The principles enunciated in some of these cases were reiterated by Goldberg J at 237:

“Those principles are, put shortly, that a solicitor does not act improperly or in breach of his or her duty to the court by acting for a party with a hopeless case.”

1. His Honour then continued:

“In order to affix liability for costs to a solicitor there must be something further added in the nature of acting unreasonably or for reasons unconnected with success in the litigation or for an otherwise ulterior purpose resulting in an abuse of process or in circumstances resulting in a serious dereliction of duty or serious misconduct in promoting the cause of and the proper administration of justice."  (at 237)

1. This is the most advantageous judicial pronouncement in the plaintiff's favour.  It postdates Colgate Palmolive Co and Another v. Cussons Pty Ltd (1993) 118 ALR 248, and predates Deputy Commissioner of Taxation v. Levick (1999) 168 ALR 383.

1. In Colgate and Palmolive, Justice Sheppard set out certain criteria which should be taken into account when dealing with applications of this kind.  He said, as is adequately summarised in the headnote at paragraph (xii) on page 249:

“The question must always be whether the particular facts and circumstances of the case warrant the making of an order for payment of costs other than on party and party basis. Circumstances warranting the exercise of the discretion to award indemnity costs include .... (d) the fact that the proceedings were commenced in wilful disregard of known facts or clearly established law; and (e) the making of allegations that ought never to have been made or the undue prolongation of a case by groundless contentions.”

(see also page 257)

1. In this case, the contentions were groundless.  The allegations made in the Magistrates' Court had no substance, but I put them to one side.  In my view, these proceedings were carried on in wilful disregard of the known principles of law, which rendered the case hopeless.

1. As I have noted, Levick's case, decided in 1999 by Justice Hill, referred to White's case.  In considering whether a solicitor should be liable for costs on an indemnity basis, Hill J turned his mind to the question of:

“whether the case advanced …… was such that it had no chance or perhaps no real chance of success.  An alternative way of putting it is whether the case advanced was untenable ……”

(at 391)

1. In my view, and for the reasons already given, there was no real chance of success in making the contentions or in advancing the arguments put before me.  I consider that there is default in so arguing and that it was unreasonable in the terms of O63r23 to persist with such arguments.

1. It follows then, that the criteria set out in O63r23 have been satisfied and that I should not, in the given circumstances, impose the costs of the solicitor's dereliction upon his client.  The arguments were not the arguments of a lay client, but the arguments of his solicitor.  They were chancy and, as I have said, tendentious.  Accordingly, I consider this to be one of the rather exceptional cases where a costs order should be made in the terms of O63r23 against the solicitor concerned. 

1. For the reasons above, the applications shall be granted.  I shall order costs to be taxed or otherwise agreed and, when so taxed or agreed, the applicants to be indemnified by the solicitor for the plaintiff.  Such costs are to include the costs of this hearing before me today.