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Bell v Velios

Bell v Velios

Case [2016] WASC 247 11 August 2016

Appeal

Costs

Manifestly Inadequate

Prejudice

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BELL -v- VELIOS [2016] WASC 247

CORAM: LE MIERE J

HEARD: 19 FEBRUARY 2016

DELIVERED : 11 AUGUST 2016

FILE NO/S: SJA 1085 of 2015

BETWEEN: MICHAEL ROBERT BELL
Appellant
AND
CHRISTOPHER JAMES VELIOS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY CHIEF MAGISTRATE E A WOODS
File No  :PE 109306 of 2014

Catchwords:

Appeal from costs order - Whether magistrate needs to make an inquiry and extent of inquiry - Whether magistrate prejudged the decision - Whether magistrate failed to apply hourly rate and time spent - Whether costs award was manifestly inadequate - Leave refused on each ground of appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 39, s 40
Criminal Investigations Act 2006 (WA), s 153
Criminal Procedure Act 2004 (WA), s 25, s 67
Legal Profession (Official Prosecution) (Accused Costs) Determination 2012
Legal Profession (Official Prosecution) (Accused Costs) Determination 2014
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Mr W A Fitt

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor's Office

Case(s) referred to in judgment(s):

Basham v City of Joondalup [2015] WASC 345
Basham v City of Joondalup [No 2] [2016] WASC 120
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
DPJB v The State of Western Australia [2010] WASCA 12
ECS v Martin [2012] WASC 51
Evans v Pelka [2005] WASC 240
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Haddon v Everitt [2001] WASCA 420; 126 A Crim R 418
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hugall v Hume [2002] WASCA 29; (2002) 127 A Crim R 565
Nevermann v The Queen (1989) 43 A Crim R 347
Norton v Morphett (1995) 83 A Crim R 90
Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178
Taylor v WA Police [2007] WASC 158
Urbano v The State of Western Australia [2006] WASCA 147
LE MIERE J:

The correct respondent in this matter

The respondent in this appeal was originally listed as Joshua Hornsey. Counsel for the respondent submitted the correct respondent should have been the issuing officer, Christopher James Velios. The appellant did not oppose that application. The appeal notice should be amended to reflect the correct respondent as Christopher James Velios.

Summary

The appellant was charged on 25 October 2014 with obstructing a public officer in the performance of the officer's functions. The charge came before the Perth Magistrates Court for mention on 7 November 2014. The appellant was granted bail and the charge was adjourned to 21 November 2014. On 21 November 2014 the appellant pleaded not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bell v Velios

Details

AGLC: Bell v Velios [2016] WASC 247
Case: [2016] WASC 247
Decision Date: 11 AUGUST 2016

CaseChat Overview and Summary

In the case of Bell v Velios, the appellant sought to appeal a decision made by a magistrate regarding a costs order. The nature of the dispute involved the costs incurred by the respondent during a legal proceeding. The matter was heard in the Supreme Court of New South Wales. The appellant challenged the magistrate's decision on several grounds, including the necessity for an inquiry, the extent of the inquiry, whether the magistrate prejudged the decision, whether the magistrate failed to apply the hourly rate and time spent, and whether the costs award was manifestly inadequate.

The primary legal issues that the court had to address were whether the magistrate was required to conduct an inquiry into the costs claimed by the respondent, the scope of such an inquiry, whether the magistrate had prejudged the decision by making comments during the hearing, whether the magistrate had failed to properly apply the hourly rate and time spent in calculating the costs, and whether the costs award was manifestly inadequate. The appellant argued that the magistrate did not properly consider the evidence and made an inadequate award of costs.

The court held that the magistrate was not required to conduct an inquiry into the costs claimed by the respondent, and the extent of the inquiry was within the magistrate's discretion. The court found that the magistrate's comments during the hearing did not indicate prejudgment of the decision, and the magistrate had applied the correct hourly rate and time spent in calculating the costs. The court concluded that the costs award was not manifestly inadequate, as it was based on the evidence presented and the circumstances of the case. Therefore, the appeal was dismissed, and leave to appeal was refused on each ground raised by the appellant.

The final orders of the court were that the appeal be dismissed, and the costs of the appeal be awarded to the respondent. The court did not find merit in any of the grounds of appeal presented by the appellant, and as such, the decision of the magistrate regarding the costs order was upheld.

Orders