Simon Daniel Hopkins v Magistrate Wayne Evans & Director of Public Prosecutions [2012] NSWSC 186

Supreme Court New South Wales

Medium Neutral Citation: Simon Daniel Hopkins v Magistrate Wayne Evans & Director of Public Prosecutions [2012] NSWSC 186 Hearing dates: 22 February 2012 Decision date: 22 February 2012 Jurisdiction: Common Law Before: Adams J Decision: Director pay to the plaintiff the sum of $10,000 as a gross sum of costs relating to the earlier proceedings and the sum of $500 in respect of present hearing. Catchwords: COSTS - sought in summons - overlooked by counsel - Suitor's Fund application rejected - whether party can seek costs order. Legislation Cited: Civil Procedure Act 2005 Suitors Fund Act 1951 Uniform Civil Procedure Rules 2005 Cases Cited: De L v Director-General, NSW Department of Community Services (No. 2) (1997) 190 CLR 207 Hancock v Arnold; Dodd v Arnold (No. 2) [2009] NSWCA 19 Category: Principal judgment Parties: Simon Daniel Hopkins (Plaintiff) Magistrate Wayne Evans (First defendant) Director of Public Prosecutions (Second defendant) Representation: Self-represented (Plaintiff) C.A. Webster (Second defendant) Self-represented (Plaintiff) Crown Solicitors Office (First defendant) Office of the Director of Public Prosecutions (Second defendant) File Number(s): 2011/66649

Judgment 1This is an application to vary orders made by me on 10 March 2011 in proceedings seeking prohibition against a Local Court Magistrate who, as I found, should have disqualified himself from hearing a prosecution which he set down for hearing before him. The defendants to the summons were the Magistrate and the Director of Public Prosecutions. The solicitor for the Director of Public Prosecutions in the Local Court opposed the application but in this Court the Director submitted to the orders, except as to costs in this Court, as also did the Magistrate. Some appearance was necessary since, although the Director submitted, it was necessary for me to satisfy myself that the orders sought were appropriate, these proceedings not being purely adversarial. 2As it happened, quite apart from the question whether the circumstances demonstrated a reasonable apprehension of bias arising from previous adverse findings concerning the plaintiff (a submission which the learned Magistrate rejected), it seems that the principal reason for rejecting the application was that it would be inconvenient to require another Magistrate to hear the matter. This is some distance from the possible application of the so-called rule of necessity. As was rightly conceded by counsel for the Director, the application was unassailable as a matter of law. That left the matter of costs to be considered. 3Although the summons sought an order for costs, Mr McCulloch SC for the plaintiff sought only an order under the Suitors Fund Act 1951 for a certificate. I am satisfied that he believed that the Attorney would make a decision in the plaintiff's favour. However, this understanding was mistaken, so that the plaintiff has no costs at all. I think that Mr McCulloch was acting under a misapprehension as to the effect of the order or mistakenly thought that a decision in his client's favour would inevitably be made in the circumstances. 4The plaintiff now seeks to re-open the question of costs. The question is governed by Division 4 of the Uniform Civil Procedure Rules 2005, in particular Part 36 Rule 16. Sub-rule (3) provides: "In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief." 5In respect of this rule the Court of Appeal said in Hancock v Arnold; Dodd v Arnold (No. 2) [2009] NSWCA 19 at [10]. "[10] The precise scope of this provision is unclear. Read literally, it might be thought to operate only in respect of orders which were not sought by any party. That reading seems implausible. Given its context, it is more likely that the distinction intended to be drawn is between substantive relief, to which the power does not extend, and ancillary or consequential relief, to which it does extend. On that understanding, a costs order would clearly fall within the latter category. Such a distinction would make practical sense because appropriate orders as to costs frequently depend upon the existence of offers of compromise which are properly not known to the Court until after substantive relief has been determined. On that basis, a party seeking to vary a costs order would not need to rely upon subr (3A)." 6If I may respectfully say so, this reasoning is persuasive. At all events, sitting at first instance, I think I should act in accordance with it, though it may have been tentatively expressed. 7That leaves the question whether, having the power to revisit the question of costs, I should do so. Broadly speaking, if the interests of justice require it, then the matter should be revisited. In De L v Director-General, NSW Department of Community Services (No. 2) (1997) 190 CLR 207 the High Court pointed to the relevant considerations when re-opening a final order: see pp215 and 223. The plurality noted (at 215) that the course is exceptional and that the applicant should show that he or she was without fault, adding (at 223) - "It is one thing to permit reopening of the orders to allow consideration of a matter accidentally overlooked so that it may be taken into account. It is another to provide relief where the party seeking it has, by its own confession, not done all that might have been done to raise the point when it was timely and appropriate to do so." 8I am satisfied there was a misapprehension by counsel as to the likely outcome of the Suitors Fund order and, furthermore, it is likely that although the summons itself sought costs, counsel simply forgot to ask the Court to reserve the question of costs to await the outcome of the Suitors Fund application. There was thus no order as to costs made. I do not think it is just to visit the oversight of counsel on the plaintiff. Had an application to reserve costs been made at the hearing, it would undoubtedly have been granted. The present application, in reality, merely delays an order that would have been inevitable had it been made. The interests of justice require - or at least permit - the matter to be revisited. 9The question now is what orders should I make in respect of costs. It is necessary briefly to deal with the chronology of events. The summons was filed on 1 March 2011 and time was abridged since the hearing in the Local Court was imminent and it was necessary to deal with the matter expeditiously. Written submissions made by the plaintiff were served on the defendant on 8 March and, on 9 March, the Director indicated that he would submit to the orders sought except as to costs. The matter being listed for hearing, of course it was necessary the plaintiff should be represented, though whether he should be represented by senior counsel in the circumstances may be doubted. Had they been sought, costs would have almost certainly been awarded since it was essential to bring the proceedings to correct the position and solicitor for the Director had opposed the plaintiff's application to the Magistrate. 10The maximum amount payable under the Suitors Fund is $10,000. I do not think it appropriate to award a greater sum since (despite Mr Hopkins' - if I may say so - honest assertion that he was unaware that the limit was $10,000) I should act on the basis that Mr McCulloch SC advisedly made the application, which would have had that effect had it been successful. I do not think that Mr Hopkins should be able, by seeking a re-opening of the orders, to now obtain a greater sum. 11Accordingly, exercising the Court's powers under s 98(4)(c) of the Civil Procedure Act 2005 I order that the Director pay to the plaintiff the sum of $10,000 as a gross sum of costs relating to the earlier proceedings before me and the sum of $500 in respect of today's proceedings.