Wolodymyr Holovinsky v The Commissioner of Police (No 3)

[2006] NSWDC 88

CITATION:	Wolodymyr Holovinsky v The Commissioner of Police (No 3) [2006] NSWDC 88
HEARING DATE(S):	06/12/2004-09/12/2004,13/12/2004-14/12/2004,16/12/2004-17/12/2004, 07/06/2005-09/06/2005, 15/06/2005, 31/07/2006-25/08/2006, 01/09/2006
EX TEMPORE JUDGMENT DATE:	09/01/2006
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Order the defendant to pay the plaintiff's costs. Certify for Senior Counsel. Certify for two counsel but only when two counsel were present. Plaintiff does not seek costs of 16 and 17 June 2005. Costs of today on a refresher basis.
CATCHWORDS:	Whether plaintiff who abandoned numerous parts of his appeal at stages during a lengthy hearing ought only have part of his costs paid
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 Workers Compensation Act 1987 District Court Act 1973 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Ruddock v Vardalis (No2) (2001) 115 FCR 229 Dew v The Delegate of the Anti Discrimination Commissioner (Northern Territory Supreme Court, 19 December 1997) Calman v The Commissioner of Police (1999) 19 NSWCCR 40
PARTIES:	Wolodymyr Holovinsky (Plaintiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ 6454/00
COUNSEL:	Mr B Gross QC (Plaintiff) Ms A Stenmark SC and Mr A Kostopoulos (Defendant)
SOLICITORS:	Proctor & Associates (Plaintiff) Bartier Perry Solicitors (Defendant)

JUDGMENT

1 HIS HONOUR: This is an argument about costs. As I have remarked constantly in the twelve years of my appointment to the Bench, nothing excites the zeal, the ardour, and the passion of members of the legal profession, than an argument about costs.

2 The matter now in question was listed for hearing over a period of eight weeks, in essence. Of those eight weeks two days were not available for the hearing owing to the fact that I was conducting callovers of the Special Statutory Compensation list. Two days were lost because of an adjournment granted to the plaintiff. Those days were 16 and 17 June 2005, but the plaintiff does not seek the costs of those days in any event. Another two days were lost due to personal reasons affecting me. One day was the day my father died and the other day was the day of his funeral.

3 I gave an extempore judgment in this matter on 24 and 25 August 2006 over a period of some thirteen hours. I finished that judgment after 5:00pm on Friday 25 August and stood the arguments concerning costs over until today.

4 The matter was fully contested and hotly contested. The plaintiff was successful in that I determined that the suffering by the plaintiff of the infirmity of mind certified by the Police Superannuation Advisory Committee was caused by the plaintiff's having been hurt on duty on 31 December 1990 when he was arrested and charged with a number of serious criminal offences and was bail refused. The plaintiff remained bail refused until either 25 or 26 January 2001 when he was released on bail from Long Bay Gaol. The plaintiff then was the subject of a lengthy committal hearing which commenced on 18 December 1991 and lasted until 19 November 1993 when the plaintiff was discharged by the learned Magistrate. The learned Magistrate subsequently ordered the Crown to pay the plaintiff's costs. However the Director of Public Prosecutions filed an ex officio indictment and the plaintiff then stood trial in this Court in the exercise of its criminal jurisdiction between 8 May 1995 and 29 November 1995 when the plaintiff was acquitted of all charges by the jury.

5 The plaintiff was reinstated to his duties as a sergeant of police on 29 January 1996 but did not in fact return to work, taking sick leave instead. There are a number of subsequent developments but they can be easily shortcut by saying that the plaintiff tendered his resignation with effect from 19 March 1997. On 27 September 2000 the Police Superannuation Advisory Committee determined that the plaintiff had been incapable of discharging the duties of his office at the time of his resignation on account of the certified psychiatric conditions. It is acknowledged by the defendant that the plaintiff cannot be ordered to pay any costs. That is provided by s 21(9) of the Police Regulation (Superannuation) Act 1906.

6 However the defendant seeks to limit any general costs order on a number of grounds. The primary ground is this. During the time after his arrest and before his acquittal the plaintiff saw a number of medical practitioners and gave them histories that the plaintiff's problems commenced with his arrest and charging and with the matters that ensued there from. Indeed the plaintiff gave a similar history to Dr Strum who was qualified by the defendant and whose opinion it would appear was the opinion adopted by the Police Superannuation Advisory Committee. However the case, as eventually pleaded, and as initially presented by the plaintiff, was not based solely on the circumstances leading to the plaintiff's arrest and charging. The plaintiff's solicitors had qualified Dr Wendy Louise Walker, a clinical psychologist. Dr Walker examined the plaintiff on a large number of occasions, eleven, if my memory be correct, and formed the view that the plaintiff's psychiatric condition pre-existed the events of the plaintiff’s being arrested and charged and were due to a number of traumata that the plaintiff had experienced earlier in his police career, such as: attending at suicides, dealing with rape investigations, dealing with horrific scenes at murders, dealing with badly decomposed bodies, and dealing with the investigation into what became known as the Milperra Father’s Day massacre, when the plaintiff told Dr Walker that threats had been made to investigating police which on the plaintiff's view, or perhaps on Dr Walker’s view, was taken as a direct threat to the plaintiff himself.

7 The plaintiff was ordered to file and serve an affidavit giving his evidence in chief. That affidavit was sworn on 30 April 2004. The affidavit contains fifty-one paragraphs. The first four paragraphs outline the plaintiff's background and joining of the New South Wales Police Force. Commencing at para 6 the plaintiff deposed to an incident in 1974 where he attended the scene of the suicide of a fourteen year old girl who had hung herself in a tree. Other instances of that sort and matters ultimately not relied upon by the plaintiff are contained in the ensuing paragraphs numbered up to twenty-eight. In para 29 of his affidavit the plaintiff deposes to his being arrested on the morning of 31 December 1990. The following paragraphs numbered 30-51 state the aftermath of that arrest and of the plaintiff's symptom complex at the time he deposed his affidavit. To put it in shortly, the plaintiff relied upon nearly adverse event that had occurred to him in his police career between 1973 and 1990, in addition to the events of his being arrested and charged on 31 December 1990 and of the events immediately prior thereto. Dr Walker’s view was that the plaintiff’s psychiatric condition pre-existed the event of 31 December 1990 and was due to the traumata such as the dealing with the young girl who had committed suicide and the subsequent matters.

8 Eventually, on 7 June 2005, the tenth day of the hearing, the plaintiff made a concession and withdrew certain parts of the particulars that he had delivered in support of his claim. Essentially, from the tenth day of the hearing the plaintiff was only relying upon his arrest and charging and the sequelae of that, together with the events antecedent to 31 December 1990, which led to his been arrested and charged. In other words the earlier events had been removed from the plaintiff's case and the carefully crafted thesis of Dr Walker was no longer relied upon.

9 In those circumstances the defendant seeks that the plaintiff's costs be limited such that the plaintiff ought not recover costs referable to his attempt to seek to establish that his condition arose other than by reason of his arrest and charging and the events leading to his arrest and charging. This is opposed by the plaintiff, and I have been favoured with 22 pp of written submissions from Mr Gross QC which have been marked MFI 27. In those written submissions Mr Gross refers to nineteen authorities, however I doubt that he has referred to all the authorities referable to the current issue. However, I shall quote two of them because they are presently relevant. The first decision is of Martin CJ in Dew v The Delegate of the Anti Discrimination Commissioner (Northern Territory Supreme Court, 19 December 1997). His Honour said:

“The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but it is said that where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs, per Nourse LJ in the Court of Appeal in Re Elgindata Ltd (No 2) (1993) AllER 232 at 237. At p 239 his Lordship said that the acid test on the question of costs is whether the party was entitled to submit the matter for the Court’s consideration. At p 241, Beldam LJ expressed the view that:

“It is only if it is possible so to isolate an issue in the case that it can be properly be said that it is unnecessarily pursued as having no bearing on the real questions in the suit that it would be proper to deprive the successful party of all costs of that issue.”

10 In Ruddock v Vardalis (No2) (2001) 115 FCR 229, Black CJ and French J said at 234-235:

“Within the general discretion of the Court’s to award costs it is accepted by decisions in both Australian and English jurisdictions that:

· Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.

· Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.

· A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.”

Perhaps I should have cited those authorities in the reverse order because the first authority I quoted is referable to the third point made by Black CJ and French J.

11 Here it has to be remembered that a plaintiff succeeded in obtaining the relief he sought. It was not as if, for example, he was claiming $500,000 damages and was awarded $50,000 damages. Therefore the issue must be whether it can properly be said that the issues which were raised and abandoned were improperly raised and unnecessarily pursued. I have much sympathy with the position adopted by the defendant. That is because it seems to me that if those issues had not been raised and pursued until the tenth day the extent of the hearing may have been less. However it must be remembered that one principle of the relevant law to be applied in cases of this nature arises from the decision of the High Court of Australia in Calman v The Commissioner of Police (1999) 19 NSWCCR 40. In that case the policeman had an underlying psychiatrist condition which was held to have been caused by his having been hurt on duty. However his absence from work was held to have been caused by a non work-related event which was said to cause the aggravation, exacerbation, or deterioration, etcetera, of the underlying condition. In other words the precipitating event that caused the policeman to cease duty was a non-compensable event. Nevertheless the High Court held that where the underlying condition was itself work related it was irrelevant that the precipitating event for the commencement of a period of incapacity was a non-compensable condition. It was possible for the plaintiff, if he could, to seek to establish that the underlying condition was caused by events antecedent to his arrest and charging and therefore, even if the events leading to his arrest and charging were not compensable he was still entitled to a finding that the underlying condition was caused by his having been hurt on duty. Therefore the legal basis existed for the plaintiff’s lawyers to decide to present the plaintiff's case in the way suggested by Dr Walker.

12 The next matter to be considered is this. The thrust of the plaintiff's evidence himself in cross-examination and indeed his position adopted when he saw practitioners before he saw Dr Walker, was based on a history of events being precipitated by the arrest and charging and not of the psychiatric infirmity pre-existing the arrest and charging. However litigants are often wrong in their attribution of the cause of their incapacity or injury. Generally litigants are keen to tell the Court that their back pain or neck pain resulted from a fall down the stairs at work or in the shopping centre or the like, because that was the only injury they had prior to waking up in bed one morning with neck or back pain. Most litigants seem to overlook the fact that neck or back pain is often the result of an underlying degenerative condition and can arise of its own momentum at any time and due to such a minor event as rolling over in bed, sleeping with the head awry on a pillow, or bending over to tie up shoelaces. Equally, when one comes to conditions affecting the psyche plaintiffs are often unaware that they may have been for years antecedent to a traumatic event suffering from some form of psychiatric illness and the traumatic event merely draws their attention to the existence of the psychiatric condition rather than being the cause of it. Therefore, the fact that the plaintiff himself may have originally not attributed his condition to events antecedent to his arrest and charging, is not an insufficient basis for the plaintiff's lawyers seeking to present his case on the basis of the thesis espoused by Dr Walker.

13 The further point which must be considered is the source of the thesis which was adopted and persisted with for ten days. Dr Wendy Louise Walker is not a medical practitioner, she is a psychologist. However she is a psychologist of great eminence who has regularly appeared in this Court on both sides of the record and who has from time to time been qualified by the Commissioner of Police and at other times has been qualified by plaintiffs’ solicitors, and, indeed, at times has been treating plaintiff's who have been members of the police force. Indeed Dr Walker told me in her evidence that she had a particular interest in psychologically disturbed policemen. If I may be so bold to say so, Dr Walker is an eminent practitioner in her field and generally regarded as a practitioner of integrity whose views are entitled to respect. Dr Walker could not be described as a “rogue practitioner” or “gun for hire”, who would prepare a report or adopt an opinion to suit the interests of the person seeking the report or arranging a patient’s referral to her. There are, unfortunately, I must say, some practitioners whom the Court could put in such a position. However the eminence of Dr Walker and her general acceptance on either side of the record in cases of this nature must be given weight. In other words it was not foolhardy or adventurous of the plaintiff's lawyers, to have prepared a case based on the thesis that Dr Walker put forward.

14 The first nine days of hearing, that is, the nine days that were taken in December 2004, were largely taken up with the plaintiff's evidence and the evidence of Dr Wendy Walker. The rest of the time was taken up with rulings on the admissibility of documents contained in eighteen lever arch binders of documents the defendant sought to rely upon. On the tenth day of the hearing, that is, the first hearing date on 7 June 2005, the plaintiff made the concession to which I have referred, withdrawing that issue. No doubt in the interim, a period of some six months, the plaintiff's lawyers had an opportunity of obtaining and perusing the transcript and seeing where the case was heading. Concessions made by the plaintiff about his only having a minor part to play in any major trauma such as his being only peripherally involved with the finding of the corpse of Mr Joe Borg, about only having a minor role to play in the investigation of the Milperra Father’s Day massacre, and of his not having any symptoms or need for treatment or time off work after other traumata, clearly undermined the reliance upon the earlier events as giving rise to the certified infirmity. That is to be taken with the plaintiff's frank concession that had he not been arrested on 31 December 1990 he would have continued to work as a sergeant of police. The concession was properly made, as I said in my reasons for judgment in deciding the substance of the plaintiff's claim, and in my view the timing of the concession is also explicable.

15 That some time had been wasted prior to the tenth day I have no doubt. It is hard to break it up but it appears to me to have been about nine hours of Court time. However those nine hours were not wholly wasted because it gave the defendant ammunition which was used very successfully to damage the plaintiff's credit. Indeed if some of the matters had not be initially relied upon by the plaintiff I doubt that the defendant would have been aware of the extent of the ammunition which it had to damage the plaintiff's credit. In particular I refer to the event of 19 January 1990. That was an event where it appeared after careful and incisive cross-examination that the plaintiff had absented himself from his police station for a period of three or four hours, gone to a hotel and drunk at least six schooners of beer when he was supposed to be the second in charge of the Five Dock police station. The plaintiff was assaulted when leaving the police station and the innuendo, and it can be put no higher than that, is that he was assaulted by the other policeman with which he was drinking in the hotel, his immediate superior, the patrol tactician Senior Sergeant O’Connor.

16 Eventually the plaintiff was departmentally charged with consuming intoxicating liquor whilst on duty, but that charge was never proceeded with because in the interim the plaintiff had been arrested and charged on 31 December 1990. The circumstances of the event of 19 January 1990 made it quite clear that the plaintiff was a person who did not do his duty properly, who lied to his superiors, who made false reports, and who was prepared to contest what was ultimately incontestable. Furthermore the plaintiff sought to maintain, even before me, that he was not intoxicated when statements taken from those who had to treat the plaintiff at the Repatriation General Hospital at Concord made it quite clear that the plaintiff was intoxicated. Had the plaintiff not initially relied upon that event then it may not have come to the attention of those with the carriage of the defendant's case and may not have been the subject of cross-examination and, even if it were, it would not have been possible for the defendant to tender for example, the statements of the hospital witnesses and other material which conclusively proved that the plaintiff had been telling lies and misconducting himself. In other words, although the plaintiff did raise matters which might be seen prima facie to have caused a waste of time what he did raise gave the defendant material in which to successfully impugn the plaintiff's credit.

17 The other broad thrust that the defendant adopts is the concession made by the plaintiff on the nineteenth day of hearing that the decision of the Commissioner of Police and certain others to arrest and charge the plaintiff was made in good faith and in the due exercise of the duties and powers of the New South Wales Police Service on the evidence available to the Commissioner of Police and his officers at the time. That concession was made by the defendant after evidence had been given by former Detective Chief Superintendent CJ Smith and whilst evidence was being given by former Detective Sergeant Jorge Michael Speck. The effect of the concession made by the plaintiff was in order to induce the defendant not to call further senior police personnel who were involved with decision making about the case that had been prepared essentially by Detective Senior Constable Robert McDougall and Detective Sergeant Krawczyk which formed the basis of the arrest and charging of the plaintiff. The reason that the defendant had elected to call the evidence of decision makers and those responsible for the arrest and charging of the plaintiff was because of wild and outrageous statements that the plaintiff had conveyed to Dr Walker and certain other people as to there being a conspiracy leading to the plaintiff's arrest and charging as to there being an attempt at “payback” and of other gross procedural irregularities. The defendant was merely seeking to prove procedural regularity. Once the concession was made the defendant did not need to have any longer to prove procedural regularity.

18 The plaintiff had not in his evidence in chief sought to establish any misfeasance by senior officers, or sought to establish a conspiracy or vendetta against him. He merely sought to establish errors and misfeasance by former Detective Senior Constable Robert McDougall and by Detective Sergeant Krawczyk. The plaintiff's evidence did not suggest any irregularity, by, for example, Assistant Commissioner Cole, who made the decision to charge the plaintiff, or by then Detective Inspector Schuberg, who appears to have been the informant to the Campbelltown Local Court, or by senior officers who arrested the plaintiff, such as Detective Chief Superintendent Smith. The defendant was acting no doubt to assert the integrity of police procedures and police regularity and to rebut the wild and unfounded statements of the plaintiff. In my view the concession which is exhibit W made on 8 August 2006 was properly and timely made. But there is no evidence before me for example, that the defendant sought that that be done at some earlier time. Bearing in mind the plaintiff did not seek to establish the “conspiracy” the defendant could equally have adopted the position that these were the wild unfounded and erroneous statements made by the plaintiff whose alcoholism no doubt caused him to blame everybody else for the position in which he found himself, which was to some extent, which I discussed in my primary reasons for judgment, the result of his own actions and inactions, the result of his own gross misconduct in the exercise of his duties as a police officer.

19 Again, doing the best I can, it would appear that if I adopted the defendant's position about another nine hours of Court time may have been lost in regard to the calling, for example, of former Detective Chief Superintendent Smith and former Detective Sergeant Speck and the matters associated therewith. However, again this merely gave the defendant further ammunition with which to impugn the plaintiff's credit. I point out that even the plaintiff's own lawyers could not seek to justify the wild and sweeping statements that the plaintiff had made about the circumstances leading to his arrest and charging.

20 The final consideration that I should make is this. This is a matter which is in what is called by statute the “Residual Jurisdiction” of the District Court of New South Wales. That, in fact, is a misnomer. It should be called the “Acquired Jurisdiction” of the District Court because the jurisdiction in question was originally called the “Residual Jurisdiction” of the Compensation Court of New South Wales. That is, the jurisdiction that that Court retained after jurisdiction in the Workers Compensation Act 1987 was transferred from the Court to a non-court, the current Workers Compensation Commission. Essentially this remains a workers compensation type case.

21 This case is governed by Div 8A of Pt III of the District Court Act 1973. Division 8A commences at s 142G and ends with s 142P. Under s 142K it is provided that s 112 of the Workplace Injury Management and Workers Compensation Act 1998 extends to any proceedings in the Residual Jurisdiction of the Court not just proceedings under that Act and is not limited by s 111A of the Workplace Injury Management and Workers Compensation Act 1998. In other words, essentially the costs provisions in the current matter are governed not by the general District Court Rules relating to costs and the Uniform Civil Procedure Rules relating to costs, but by the special scheme of costs under the workers compensation legislation. In that jurisdiction more than any other it can be seen that the costs are limited in quantum and although the general position at Common Law is that costs belong to a party rather than to the lawyers, in the development of workers compensation jurisprudence it has always been seen more that the costs belong to the practitioner rather than to the client. Bearing in mind that the quantum of costs is limited by statute in the current matter and is modest and that the issues in this case required senior counsel on either side, an eight week hearing, and a hard fought contest, I do not believe that this is an appropriate case in which to seek to limit the costs that might otherwise be payable on success in the appeal. Although the plaintiff may not have succeeded on some aspects of the case as initially pleaded, ultimately he succeeded in establishing what he sought to establish in the first place. There is much to commend the view adopted by senior counsel for the plaintiff that had the plaintiff not initially pleaded what he did the defendant would not have had such a strong case. However there is equally much to be said for that said by senior counsel for the defendant, that had the plaintiff not pleaded what he originally did the defendant may not have had available material to seek to damage the plaintiff's case. In other words, whilst on one view of it the extent of the hearing was prolonged by the additional matter pleaded and subsequently withdrawn, the direct beneficiary of that is in fact the defendant, who, because it enabled the defendant to strengthen the case the defendant otherwise had in contesting the plaintiff's claim.

22 The orders concerning costs are these:

I order the defendant to pay the plaintiff's costs. I certify for Senior Counsel. I certify for two counsel but only when two counsel were present.

23 Noted that the plaintiff does not seek any costs of 16 and 17 June 2005.

24 Costs of today on a refresher basis.

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