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Bar Talk
26 October, 2004  
Court of Appeal's costs orders against lawyers go pear shaped

NSW Court of Appeal’s costs orders against legal team in “futile” copper case look ridiculous now that it emerges the Police Association had fully indemnified the appellant

What appeared to be a frightful shellacking for the lawyers acting in an appeal by a police officer against the NSW Police Commissioner has turned a tad embarrassing for the NSW Court of Appeal.

imageThe report of the appeal judges’ findings in Miller’s case got page three treatment in The Sydney Morning Herald on October 1. It was also the talk of the Street of Shattered Dreams because of the scary costs orders made by Ruth McColl JA (seen here), with whom Mason P and Hamilton J agreed.

The orders were that Sgt Miller’s lawyers should not look to their client for the costs of the appeal and that they indemnify him in respect of the Commissioner’s of Police’s costs.

If an undertaking to that effect was not given within two days, in writing, the court was to consider issuing a show cause notice to the lawyers: Bernard Gross QC with Peter Dailly, along with law firm Walter Madden Jenkins.

The Court of Appeal was ruthless, describing Miller’s appeal as “futile” and “academic” and that the lawyers ought to have been aware of that.

However, what was not appreciated by the appeal judges was that Miller was fully indemnified for all costs by the Police Association.

Miller was the subject of police disciplinary action after he and four other coppers neglected to arrest off an off-duty female constable called Anderssen after she tested positive in a RBT on Victoria Road, Rozelle, in the early hours of March 9, 2001.

Later the same day, Miller and his mates were interviewed by Police Internal Affairs. This proved too much and Miller promptly went on sick leave for three weeks while the investigation continued.

He then claimed “hurt on duty” benefits for the same period because of the stress and anxiety caused by the investigation.

After his claim was rejected by the NSW Police as not really fitting into the category of “hurt on duty”, Miller appealed to the Government and Related Employees Tribunal (GREAT) which found that he had not suffered a compensable psychological injury and even if he had, it was wholly or predominantly caused by reasonable action taken on behalf of the employer with respect to discipline of the appellant: s.11A Workers Compensation Act 1987 (NSW).

In the appeal, Miller didn’t challenge the finding in relation to s.11A, but objected to the respondent being permitted to tender before GREAT the records of interview with the internal affairs officers.

Under s.170 of the Police Act 1990 (NSW) documents brought into existence in these circumstances are inadmissible in any proceedings, unless a witness is willing to produce them.

The tribunal thought that the section was satisfied by the Commissioner of Police calling the investigating officer as a witness and his willing production of the documents.

That was the issue that Miller’s lawyers wanted tested in the Court of Appeal, however it just got Ruth’s goat.

McColl declared that the appellant had failed to show an error of law which vitiated GREAT’s decision. Also, she said, the court could not deliver what, in effect, would be an advisory opinion. She drew strength from the Dyce Man deliberating in another case:

“It is wrong for judicial power to be exercised in answering questions which are ‘merely moot, theoretical, abstract, hypothetical and advisory’.”

Hence the unfriendly costs orders against the appellant’s legal team.

However, the Court of Appeal judges did not press during argument whether Miller was personally vulnerable for costs. It must have come as a bit of a surprise for Gross, Dailly and the solicitors to discover their personal exposure when they read the judgment.

It has since emerged that at the time the court made the orders it was not aware that Miller had an agreement with the Police Association that he would not be exposed to any costs.

The Police Association was keen to explore the s.170 point, particularly as in relatively recent times the Commissioner of Police commenced appeal proceedings from a District Court decision in which the tender of transcripts of interviews had been rejected.

So the commissioner has been on both sides of the s.170 argument and the association was hopeful of getting the issue resolved by the Court of Appeal.

Consequently, it fully indemnified Sgt. Miller.

The court’s costs orders now look skew whiff and the expectation is that the judges have little alternative but to recast them rather radically.