The High Court has ordered Ammi Burke to pay the respondent’s and notice party’s costs of her recusal application and substantive judicial review proceedings on a legal practitioner and client basis, after the judge found that her conduct had been an abuse of process.
In a costs decision dated 16 October 2023, Ms Justice Bolger directed that the costs be adjudicated if the parties could not agree. The order excludes the costs of the adjourned costs application on 11 October and any costs relating to the stenographer’s engagement or transcript preparation. There is no automatic stay on enforcement if Burke appeals, subject to any stay the Court of Appeal might grant on an application by her.
Burke had brought judicial review proceedings concerning the dismissal of her unfair dismissal claim by the Workplace Relations Commission. The judge had granted leave to bring the proceedings in May 2023. At the hearing on 2 May, Burke applied for the judge to recuse herself. The judge refused that application the following day, adjourned costs, and heard the substantive case on 3 and 4 May.
On 4 May, the judge dismissed the proceedings because of Burke’s conduct, which she found made it impossible to continue the hearing and amounted to an abuse of process. The written judgment giving reasons was issued on 26 June.
The costs decision says the respondent and notice party sought costs on the more unusual legal practitioner and client basis. Burke submitted that she had rendered a public service by bringing the proceedings, that opposing counsel’s conduct should be considered, and that she should not face a costs order. She also sought to revisit issues already decided and to amend the judgment; the judge refused.
The judge said she had made no finding critical of the institution of the judicial review, and noted that she had granted leave after finding an arguable case. She attributed responsibility for the events of 4 May to Burke, finding that her conduct was designed to collapse the hearing before the opposing submissions could be fully heard.
A separate issue arose when Burke learned that the judge had received a stenographer’s transcript without her knowledge or permission. The notice party’s solicitor confirmed that the stenographer had sent it to the court without instructions from the notice party or respondent. The judge accepted that explanation and said the transcript issue did not prevent a costs order, while excluding transcript-related costs from it.
At the second costs hearing, the judge said Burke repeatedly accused opposing counsel of lying and misleading the court, and that she and family members in court continued to repeat those allegations after they had been found unfounded. The judge terminated the hearing and decided costs on the written submissions.