Were invoices from lawyers who had from time to time represented the Applicant in other proceedings mandatory relevant consideration which the primary judge was bound to take into account?

Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264 (29 October 2021)

Intro:-

The applicant, Raed Hariz, seeks judicial review in the supervisory jurisdiction of this Court of an order for costs made in the District Court.

Facts:

On 9 March 2020 Judge Smith SC (the primary judge) heard an appeal by the applicant from a conviction in the Local Court. The appeal was upheld and the conviction quashed. Immediately following delivery of that judgment, senior counsel appearing for the applicant foreshadowed a costs application. The judge upheld the application and, on 28 August 2020, awarded costs of the proceedings in the Local Court in an amount of $9,000 and costs of the proceedings in the District Court in an amount of $12,000.

Before delivering judgment on 28 August 2020, the judge noted that he had limited material before him as to the amount of costs incurred. Shortly after the delivery of judgment, the matter having been stood in the list, counsel then appearing for the applicant raised an issue as to the quantification of costs. Pursuant to a motion filed by the applicant on 5 November 2020, to which the respondent consented, the orders of 28 August 2020 were set aside and directions given for service of evidence as to quantification of costs, in advance of a hearing on 5 March 2021. No such evidence was served, and when the matter came on for hearing the applicant, then unrepresented, sought an adjournment to obtain the opinion of a costs assessor. The application was refused. Only then did the applicant tender a bundle of invoices, referred to below, which were admitted without objection. A second judgment was handed down on 30 April 2021. The orders made were as follows:

“(1) The respondent to pay the applicant’s costs of the proceedings in the Local Court in the amount of $9,000.

(2) The respondent pay the applicant’s costs of the proceedings in the District Court in the amount of $12,000.

(3) The applicant is to pay the respondent’s costs incurred in these proceedings after 28 August 2020 as assessed or agreed.”

On 18 August 2021 the applicant issued a summons for judicial review in this Court.

The summons was some three weeks out of time, but no objection was taken by the Director to an extension of time, which extension was granted at the commencement of the hearing.

There is no appeal from a judgment of the District Court in its criminal jurisdiction on appeal from the Local Court. Further, there is a privative clause contained in the District Court Act 1973 (NSW), s 176, which precludes any form of review by this Court other than for jurisdictional error. Counsel for the applicant accepted the limitation, but submitted that each of the grounds identified a jurisdictional error. While in their terms the grounds used language which may engage forms of jurisdictional error, it is necessary to identify with greater precision the scope of the jurisdiction of the District Court and what is meant by “jurisdictional error” in that context.

Issues:-

a) did His Honour fail to exercise the Court’s jurisdiction, by failing to have regard to the evidence and submissions provided by the parties; or, alternatively,

b) was His Honour’s decision unreasonable, or plainly unjust; and

c) was the plaintiff denied procedural fairness in circumstances where the first defendant did not seek an order for costs, and his Honour did not raise the question with the plaintiff.”

Consideration:-

Jurisdictional error – District Court

Much of the jurisprudence concerning the nature of jurisdictional error is found in cases reviewing administrative decisions, often decisions made by officers of the Commonwealth. Findings made in relation to administrative decision-making must be applied cautiously in relation to review of a court exercising judicial power. As the High Court explained in Craig v South Australia, rejecting the reasoning of Lord Reid in Anisminic Ltd v Foreign Compensation Commission which was understood to discard the distinction between jurisdictional error and error within jurisdiction as “not intended to refer to a court of law”:

“That distinction has not, however, been discarded in this country and, for the reasons which follow, we consider that Lord Reid’s comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari. In that regard, it is important to bear in mind a critical distinction which exists between administrative tribunals and courts of law.”

With respect to the latter, the joint reasons continued:

“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction.”

Further, although the concept of “jurisdictional error” can be described in general terms embracing concepts such as procedural unfairness and relevant and irrelevant considerations, the scope of the authority given to the court or tribunal must ultimately be identified by reference to the statutory context in which it operates, as well as by reference to institutional considerations which may distinguish courts from tribunals and some tribunals from others.

Applied in the present circumstances, the decision sought to be reviewed is a judgment of the District Court, being a court of record. There is no doubt that it had been exercising the criminal jurisdiction conferred on it under Pt 4 of the District Court Act in hearing an appeal from the Local Court. Further, there was no dispute as to the nature of the jurisdiction with respect to costs: it was that derived from s 28 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), which relevantly provides:

28 Miscellaneous powers
....
(2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.

(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

Grounds 1 and 2

Ground 1 asserted that the primary judge had failed “to have regard to” either “the evidence” or the “submissions provided by the parties”. In the event that that could not be established, it was submitted that the amount awarded was “unreasonable, or plainly unjust”. These two grounds were dealt with together at the hearing as being alternative complaints.

The alleged error in failing to “have regard to the evidence” appears to confuse a number of ideas. A ground of judicial review of administrative decision-making is sometimes expressed as a failure to have regard to a relevant consideration: see, for example, Minister for Aboriginal Affairs v Peko-Wallsend Ltd. As Mason J explained, “[t]he ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision”. Those matters, if not expressly stated, must be derived from the subject matter, scope and purpose of the Act. As explained above, the purpose of an award of costs requires the judge to consider what would be fair and reasonable professional costs to be incurred in the circumstances of the case. However, there is not, and could not be, a suggestion that the judge did not give attention to that factor. It was the criterion which he stated he was applying and undoubtedly applied.

A major problem for the applicant was that the evidence upon which he relied was incomplete, confusing and not properly proved. The “evidence” constituted a bundle of invoices from lawyers who had from time to time represented the applicant. The primary judge set out in his second judgment a table showing the amounts of the invoices which totalled $238,516. He identified the invoices by numbers, 1-11. The judge dealt with the invoices globally and individually. He placed them in one of two categories, namely those in respect of which he was “not satisfied that [the applicant] has in fact incurred these costs in respect of this matter” and, secondly, “to the extent that any costs do relate to this matter, I am satisfied that they are excessive”. Those factual findings were not and could not be challenged in this proceeding.

Counsel for the applicant referred to two particular matters, of which he said there was evidence, which the judge disregarded. The first was a bail application made by Mr Greg James QC. Items 1 and 2 on the judge’s list of invoices were tax invoices delivered by Mr James. The judge referred expressly to both invoices in his second judgment, repeating a finding made in his first judgment that “senior counsel was unnecessary.” The first item on the first invoice was appearance on a bail application made on 20 December 2018. However, the bail application was not limited to the charge in respect of which the conviction had been set aside by the District Court. There was no finding that the bail application was not made, nor that the applicant was not liable to pay counsel for appearing for him. Rather the judge concluded that the tax invoice provided no assistance in determining what expenses were reasonably necessary and what fee was reasonably appropriate in respect of each in the circumstances.

The second invoice relied upon in argument was an invoice delivered by a solicitor from Kings Law Group, Mr Reslan. The judge noted that the invoice charged for 28 hours of conferences, 9 hours of preparation and 286 emails, as well as a 6-hour court appearance on the costs application. It also recorded fees payable to a counsel who had not appeared in the matter. The judge may have been wrong as to the nature of the court appearance (it was said to have been the hearing of the appeal, not the costs application), but nothing turns on that; indeed it was the day on which the costs application was made. The short point is that the judgment contradicts the proposition that the judge failed to have regard to these aspects of the evidence.

The second and alternative manner in which the claim was presented was that the amounts awarded were so unreasonable as to demonstrate some legal error in the judge’s assessment. That ground is also untenable. The judge explained in his first judgment (and repeated in his second judgment) the basis on which he had assessed costs in an amount of $9,000 in the Local Court and $12,000 in the District Court. In each case he included what he described as “a reasonable amount of preparation” and fees at a daily rate with respect to the hearings. It is to be borne in mind that at no stage did the judge have before him any material other than the invoices, which, understandably, he deemed to be excessive, to determine what might constitute a fair and reasonable award of costs. The only basis upon which the amounts allowed could be described as manifestly unreasonable was by comparison with the tax invoices. That comparison itself was unhelpful. It is not for this Court, as it was not for the primary judge, to try to disentangle the different sets of criminal proceedings which appear to have been encompassed within the charges made by the lawyers. There was no standard demonstrated on the evidence which the primary judge must have taken into account, and failed to take into account. Without that, the claim of manifest unreasonableness has no standard against which the actual order can be measured. No level of unreasonableness has been established.

Ground 3

The final order made on 30 April 2021 was that the applicant pay the Director’s costs from 28 August 2020. That was an application of the “costs follow the event” principle. As the judge explained in his second judgment:

“Nothing in the invoices now relied on by Mr Hariz changes my view about the amount of costs that are just and reasonable. As Mr Hariz was unsuccessful in persuading me otherwise with evidence that he ought to have adduced prior to the date of that judgment, he should pay the respondent’s costs incurred since 28 August 2020 as assessed or agreed.”

The order was unremarkable, and the applicant does not suggest otherwise. Rather, ground 4 is based on the proposition that the applicant was not, and should not reasonably have been, on notice that such an order might be made. Further, even if a legal practitioner would have appreciated the risk of such an order, at the hearing on 5 March 2021 the applicant was unrepresented and, in accordance with authority in this Court, should have been warned before such an order was made.

As to the claim regarding the applicant’s lack of knowledge, there was no evidence before the Court to support the allegation.

As to what the primary judge should have done and failed to do, the applicant relied on the following statement by Emmett AJA in Dempsey v Director of Public Prosecutions:

“Procedural fairness normally requires a court to identify, for a person affected by its decision, any critical issue that is not apparent from the nature of the decision or the terms of the statutory power exercised. Such a court must also advise of any conclusion adverse to the person affected that would not obviously be open on the known material.”

As the Director submitted, the question is whether some obligation to advise was engaged in the present case.

The applicant’s submissions in this regard rested on three propositions. First, the Director did not expressly seek costs. Secondly, although a legal practitioner might have appreciated that costs would usually follow the event, the applicant was unrepresented at the hearing prior to the second judgment. Thirdly, it is exceptional for costs to follow the event in criminal, as opposed to civil, matters.

Further, whatever may be said about unrepresented litigants, the applicant was unrepresented only at the final hearing of his reopening application. He had been represented at the earlier hearing by counsel and had been represented by counsel when the first judgment was delivered, which led to the application to reopen the judgment with an opportunity to present further evidence. In my view it would have been both unnecessary and inappropriate for the judge to give the proposed advice. Failure to do so was not procedurally unfair.

Thirdly, any practice in relation to indictable cases is inapplicable in the summary context. The possibility of an adverse costs order was the very purpose of the applicant’s proceeding. The proceedings between the applicant and the Director were entirely incidental to the applicant’s success in appealing his criminal conviction and related only to costs. The reopening request related only to a costs order in his favour. The unsuccessful attempt to improve his position beyond that which he had achieved invited the adverse costs order which was in fact made.

The claim of procedural unfairness must demonstrate a material error. There was no plausible suggestion as to what might have been put had the opportunity been given and availed of. As the joint reasons of Kiefel CJ, Gageler, Keane and Gleeson JJ observed in MZAPC v Minister for Immigration and Border Protection:

“[1] This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.

[2] Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.”

In the present case, there was no realistic possibility that a different order might have been made had the opportunity for further submissions been proffered.

Conclusion:-

Each of the grounds proposed in the amended summons having been rejected, the summons must be dismissed. As proposed by the Director, the applicant must pay the Director’s costs in this Court.