James Bowers v Judicial Commission of New South Wales (No 2)

1. [1]

   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, see James Bowers v Judicial Commission of New South Wales [2021] NSWSC 1570.

2. [2]

   The orders made on 3 December 2021 relevantly included the following:

3. [3]

   The prayers for relief in the 17 December 2021 notice of motion were as follows:

4. [4]

   In support of his notice of motion, 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. No point was taken that the orders made on 3 December 2021 could not be varied under r 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and, in these circumstances, I shall address each of the numbered prayers for relief in turn.

Indemnity costs

1. [5]

   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.

2. [6]

   Mr Bowers submitted in effect that the comments of French J in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70 at [5]; 46 IR 301 were applicable in the present case. Those comments relevantly included:

3. [7]

   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 then submitted that there was no such basis in the present case. It was submitted that the matter raised difficult issues of statutory interpretation as to the existence and content of an implied duty to accord procedural fairness to complainants under the Judicial Officers Act 1986 (NSW), which were not covered by binding authority. In addition, 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. In short, it was submitted that the defendant’s case was not hopeless.

4. [8]

   Section 98(1)(c) of the Civil Procedure Act 2005 (NSW) permits the Court to order costs on an ordinary or an indemnity basis. Rule 42.2 of the UCPR provides that, unless the Court orders otherwise or the rules otherwise provide, costs payable are to be assessed on an ordinary basis. The rules did not otherwise provide in the present case. The principles that provide some guidance as to whether the Court should “order otherwise” include the following:

   1. (1)

      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 costs: Hamod v New South Wales [2002] FCAFC 97 at [20]; (2002) 188 ALR 659.

   2. (2)

      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: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44]; James v Douglas [2016] NSWCA 178 at [63].

5. [9]

   In the present case, 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. Mr Bowers’ submissions in relation to this ground went further, however, and 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.

6. [10]

   For the reasons set out in the substantive judgment, 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.

7. [11]

   As Mr Farinha submitted, the resolution of the question of whether there had been a failure to accord procedural fairness involved a question of statutory construction:

   1. (1)

      in relation to which there was no binding authority and there was considerable uncertainty; and

   2. (2)

      in relation to which the defendant was partially successful.

8. [12]

   This was certainly not a situation where the defendant’s case was hopeless. Nor did the defendant’s conduct in the proceedings involve any element that was plainly unreasonable or delinquent in some way. In my view, there was no special or unusual feature in this case justifying a departure from the position that party/party costs should be assessed on the ordinary basis.

9. [13]

   Accordingly, I would not vary order (4) made on 3 December 2021 to require the defendant to pay Mr Bowers’ costs on an indemnity basis.

Time for compliance with order (3)

1. [14]

   By numbered prayer 2, Mr Bowers sought that order (3) be varied to require, pursuant to UCPR rr 1.13 and/or 36.5(2), that the defendant “perform its statutory duty forthwith”. He 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.

2. [15]

   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. It was noted that the Act did not prescribe a time within which such action was to be taken but it was submitted in effect that, nonetheless, the Act would be construed as requiring the defendant to act without unreasonable delay. It was further contended that if there were unreasonable delay the normal remedy would be an order in the nature of mandamus to compel a decision to be made. It was also submitted that performance of a statutory duty by an administrative decision maker was not “the doing of anything in or in connection with any proceedings” for the purposes of UCPR r 1.13. As to UCPR r 36.5, it was contended that, while that provision had been held to be sufficiently wide to include orders for remitter, there was no basis to find unreasonable delay in the present case nor was there any evidence that Mr Bowers was prejudiced or otherwise affected by any delay in relation to the processing of his complaint.

3. [16]

   UCPR r 1.13 provides:

4. [17]

   UCPR r 36.5(2) relevantly provides:

5. [18]

   Especially in light of r 36.5(2) and the structure of the UCPR are as a whole, it appears to me that 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. The latter case is expressly covered by r 36.5(2).

6. [19]

   Order (3) made on 3 December 2021 was to the effect that Mr Bowers’ complaint dated 29 March 2021 was remitted to the defendant to be dealt with according to law. This related, not to any procedural step in the proceedings, but to its final disposition. Accordingly, in my view, r 1.13 is not applicable in relation to order (3).

7. [20]

   It could be argued in relation to r 36.5 that, strictly speaking, the “act” which was ordered to be done by order (3) was the remittal of the complaint even though this act was to be done in order for the complaint to be dealt with according to law. Nonetheless, in 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. It appears that Davies J accepted, at [15] of that judgment, that r 36.5(2)(b) would support an order that the remitted matter in that case be re-determined within a particular period. It was not necessary, however, for his Honour to determine that case on that basis since it was resolved by the Court accepting an undertaking from the administrative decision maker to determine the matter within a certain time.

8. [21]

   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”. Once again, strictly, 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”.

9. [22]

   Furthermore, 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: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [37] and the cases there cited. In addition, it is well established that “forthwith” is to be construed according to the circumstances in which it is used: Ex parte Lamb, In re Southam (1881) 19 Ch D 169 at 173; and its meaning may include within a reasonable time in the circumstances or without any unreasonable delay: Measures v McFadyen (1910) 11 CLR 723 at 729 and 736; [1910] HCA 74 and Ex parte Lam at 173 and 174. Thus, if order (3) were varied as sought by Mr Bowers by including the word “forthwith” it would be unlikely to add anything of significance to the obligation of the defendant under that order in its existing form.

10. [23]

    Mr Bowers’ prayer 2 in the notice of motion did not seek that the defendant be required to deal with his complaint “within a specified time”. Nor was there any evidence before me as to what would be an appropriate period within which the defendant should be required to deal with his complaint. 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.

11. [24]

    In all the circumstances, I am not satisfied that order (3) should be varied to require, whether pursuant to UCPR rr 1.13 or 36.5(2) or otherwise, that the defendant deal with his complaint “forthwith”.

Anonymity be lifted

1. [25]

   Prayer for relief 3 was that “anonymity be lifted”. This appears to be based on the fact that in the reasons for judgment in the substantive matter, the two judicial officers said to be involved were not named but were referred to as the “first judicial officer” and the “second judicial officer”.

2. [26]

   Mr Bowers submitted at par 9 of his written submissions:

3. [27]

   It was stated on behalf of the defendant that it neither consented to nor opposed “anonymity [being] lifted”.

4. [28]

   In James Bowers v Judicial Commission of New South Wales [2021] NSWSC 1570 at [2], I explained the course I adopted as follows:

5. [29]

   This approach did not involve suppressing the name of either party to the proceedings and they were both explicitly identified in the judgment. The hearing of the summons giving rise to the judgment took place in open court. No order under the Court Suppression and Non--publication Orders Act 2010 (NSW) was made. Nor was any other order made preventing any information disclosed in the evidence or submissions from being published. There is, therefore, in that sense no “anonymity” to be “lifted”.

6. [30]

   I remain of the view that it was not necessary, in order to explain properly and fully my reasons for making the orders on 3 December 2021, to name the judicial officers involved. The approach adopted in my reasons for judgment of 3 December 2021 did not, in my view, run contrary to what was said by Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23:

7. [31]

   I also note that the decision of Nicklin J in the High Court in Various Claimants v Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB), to which Mr Bowers referred in submissions, dealt with the disclosure of parties’ names not with the disclosure of the names of other persons.

8. [32]

   In these circumstances, I do not propose to make any order to the effect that “anonymity be lifted” or to take any steps to change the form of my reasons for judgment in the substantive proceedings.

Liberty to apply on three days’ notice

1. [33]

   Mr Bowers also sought liberty to apply on three days’ notice. This was apparently related to the variation sought for the defendant to deal with his complaint “forthwith”. Since that variation is not to be made, it is unnecessary to grant liberty to apply on three days’ notice. In any event, under UCPR r 18.4, a notice of motion is only required to be served three days before the date fixed for the motion, unless the Court otherwise orders.

Costs

1. [34]

   Mr Bowers has been unsuccessful in relation to each of prayers 1, 2, 3 and 4 for relief in his notice of motion filed on 17 December 2021. There is no apparent reason why costs should not follow the event and no such reason was identified by either party in submissions. Accordingly, Mr Bowers should be ordered to pay the defendant’s costs of and incidental to the notice of motion.

Conclusion and orders

1. [35]

   For these reasons, the Court orders:

   1. (1)

      The notice of motion filed on 17 December 2021 (the Notice of Motion) is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs of and incidental to the Notice of Motion.