Plaintiff Seeks Order Varying Dismissal of Complaint

James Bowers v Judicial Commission of New South Wales (No 2) [2022] NSWSC 179 (1 March 2022)

Orders were made on 3 December 2021 set aside the decision of the Judicial Commission of New South Wales dismissing the complaint of James Bowers.  The plaintiff sought orders varying orders made on 3 December 2021 in the substantive judicial review proceedings.  The Court, in making its orders, considered the proper construction of r 1.13.

Facts:

By a notice of motion filed on 17 December 2021, the plaintiff, Mr James Bowers, sought orders varying orders made on 3 December 2021 in the substantive judicial review proceedings.  The orders made on 3 December 2021 set aside the decision of the Judicial Commission of New South Wales dismissing the complaint of James Bowers dated 29 March 2021 (the Complaint).  Mr Bowers relied upon the evidence and submissions he had made in the substantive proceedings and upon written submissions filed on 22 December 2021.  The Judicial Commission relied upon its written submissions filed 15 February 2022.

There was no challenge to order (4) made on 3 December 2021 that the defendant pay Mr Bowers’ costs of and incidental to the judicial review proceedings.  The variation sought by Mr Bowers was that those costs should be paid on an indemnity basis.  Mr Farinha of counsel, who appeared for the defendant, submitted that departure from the usual rule that costs are to be assessed on the ordinary basis in favour of an indemnity costs order in this case required a sufficient special or unusual feature in the case such as some relevant delinquency.  It was contended that the substantive judgment specifically involved the rejection of Mr Bowers’ contention that he should have been informed of information obtained by the defendant from another source and given the opportunity to respond to it.

Mr Bowers’ grounds for seeking judicial review included “a breach of procedural fairness” and part of the support for this ground was that he should have been permitted to put before the defendant in support of his complaint the ex tempore judgment of the second judicial officer dated 20 February 2020 which indicated that, by the time the second judicial officer delivered the ex tempore judgment, the fact that Mr Bowers had made an enquiry about the reserved judgment in the original matter had been disclosed to the second judicial officer, potentially in breach of the reserved judgment protocol.  He submitted in effect that the information obtained by the defendant from the first judicial officer should have been disclosed to him and he should have been given an opportunity to respond to that information by, among other things, providing a copy of the ex tempore judgment.

Issue:

Whether or not the order in the nature of mandamus should be varied.

Applicable law:

Civil Procedure Act 2005 (NSW) s 98 - permits the Court to order costs on an ordinary or an indemnity basis.

Uniform Civil Procedure Rules 2005 (NSW) r 1.13 - provides that if no time is fixed by these rules, or by any judgment or order of the court, for the doing of any thing in or in connection with any proceedings, the court may, by order, fix the time within which the thing is to be done.

Uniform Civil Procedure Rules 2005 (NSW) r 36.5 - provides that if a judgment or order requires a person—

(a) to do an act forthwith or forthwith on a specified event, or

(b) to do an act but does not specify a time within which he or she is required to do the act,

the court may, by order, require the person to do the act within a specified time.

Uniform Civil Procedure Rules 2005 (NSW) r 42.2 - provides that, unless the Court orders otherwise or the rules otherwise provide, costs payable are to be assessed on an ordinary basis. 

Dobbie v Commissioner of Victims Rights [2019] NSWSC 111 - Davies J held (at [11]) that the intent of an order such as order (3) was that the administrative decision maker was, at some time or another, to redetermine or reconsider the matter and it would be inappropriate to restrict the scope of r 36.5 simply by the “syntactic form” of the order in question. 

Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 - provides that indemnity costs are not ordered to punish an unsuccessful party for persisting with a case that fails; nor are they awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty: rather, they serve to compensate a successful party fully for costs incurred, when the Court takes the view that it was unreasonable for the unsuccessful party to have subjected the other party to the expenditure of cost.

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; 46 IR 301 - provided that it is sufficient to enliven the discretion to award [indemnity] costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 - provides that a number of circumstances have been recognised as capable of warranting the making of an order for payment of costs on an indemnity basis, including where conduct in the proceedings of the party against whom the order is sought was “plainly unreasonable“ or involved some “delinquency“ or was otherwise such as to involve “some special or unusual feature” justifying the court’s departure from the position that party/party costs be assessed on the ordinary basis.

Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 - provides that since the Judicial Officers Act does not specify a time within which the defendant must carry out its preliminary examination and decide whether to dismiss a complaint summarily or refer it under s 21 of that Act, it should be construed as requiring those steps to be taken within a reasonable time or without undue delay.

Analysis:

Mr Bowers submitted that, bearing in mind the delay occasioned already by the defendant’s conduct, the Court should keep the defendant under a “tight rein” by specifying the time within which the defendant should perform its statutory duty, with liberty to apply since, as far as he was aware, the defendant had done nothing about complying with the orders made on 3 December 2021.  Mr Farinha submitted, on behalf of the defendant, that the effect of order (3) was to require the defendant to exercise its powers to conduct a preliminary examination of the complaint and either to dismiss it summarily or to refer it in accordance with the Judicial Officers Act.   

The proper construction of r 1.13 is that it relates to the time for doing things in relation to the conduct of proceedings and not to the time within which things may be ordered to be done by the Court by way of interlocutory or final judgments or orders dealing with substantive, as opposed to procedural, issues.  Mr Bowers’ prayer for relief seeks that order (3) be varied in effect so that the defendant would be required to deal with his complaint according to law “forthwith”.  However, varying order (3) in this way does not fall within what is contemplated by r 36.5 because that rule only permits the Court by order to “require the person to do the act within a specified time” which, as r 36.5(2)(a) makes clear, is different from order that an act be done “forthwith”.  The evidence did not establish that there had been any unreasonable delay on the part of the defendant nor did it establish that Mr Bowers has suffered any prejudice as a result of the time taken by the defendant since order (3) was made.

Conclusion:

Mr Bowers was successful on the limited basis that he should have been afforded the opportunity to put before the defendant all the material in support of his complaint, including the ex tempore judgment, prior to his complaint being summarily dismissed.  Mr Bowers was unsuccessful in relation to his submission that the information obtained from the first judicial officer should have been disclosed to him with an opportunity to respond.  The Court will not vary order (4) made on 3 December 2021 to require the defendant to pay Mr Bowers’ costs on an indemnity basis.