Bell v Velios

[2016] WASC 247

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

1. 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

1. 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 guilty to the charge and the matter was listed for trial on 13 March 2015. The appellant's bail was renewed. On 13 March 2015 the appellant applied to vacate the trial so they could subpoena a witness who had not arrived at the court, the application was not opposed by the prosecutor. The trial was vacated and relisted for 13 October 2016 and the appellant's bail was extended. On 13 October 2015 the prosecutor sought to discontinue the charge and the magistrate dismissed the charge for want of prosecution pursuant to s 25 of the Criminal Procedure Act 2004 (WA). The appellant applied for a costs order under s 5 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Accused's Costs Act) in the sum of $3,939 and the accepted that they should receive no costs for the hearing on 13 March 2015. The magistrate awarded the accused $1,500.

Grounds of appeal

1. The appellant appeals the magistrate's decision to award costs of $1,500 on three grounds described in the appeal notice.  Ground 1 is that the learned magistrate erred in law by failing to make any, or any adequate, inquiry as to the expenses that pursuant to s 4(1) of the Accused's Costs Act were properly incurred by the accused in the prosecution.  Ground 2 is that the learned magistrate erred in law by failing to consider or apply the hourly rates and the time spent (determined at item 5 of the Legal Profession (Official Prosecutions) (Accused Costs) Determination 2014) (the 2014 Determination) by the accused's defence lawyers in the preparation and conduct of the defence.  Ground 3 is that the learned magistrate erred in law by making a costs award of $1,500 which was in all of the circumstances so manifestly inadequate as to disclose error.  At the hearing of the appeal the parties agreed that if I were to allow the appeal I should fix the amount awarded for costs rather than remit it back to the Magistrates Court (ts 39).

Appeals from costs orders

1. A successful accused is generally entitled to their costs. An accused person is successful if, amongst other things, the charges against him or her are dismissed for want of prosecution: s 67(1) of the Criminal Procedure Act and s 5(1) of the Accused's Costs Act. An order will be made in the sum of the costs incurred by the accused if the accused can satisfy the following three conditions. First, the costs must be properly incurred by the accused: Accused's Costs Act s 4. The parties agreed at the hearing that to be properly incurred the expenses must have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination (ts 4): see Haddon v Everitt [2001] WASCA 420; 126 A Crim R 418 [60] ‑ [61]. Secondly, the expenses must be due and payable, or paid, by the accused to another person or as court fees: Accused's Costs Act s 4. Thirdly, the amount of costs ordered, other than for court fees, shall be in accordance with the scale fixed from time to time by a costs determination: Accused's Costs Act s 5. Relevantly to this case, item 6 of both the Legal Profession (Official Prosecutions) (Accused Costs) Determination 2012 and the 2014 Determination provide that the maximum amount for preparation where the trial does not proceed is such amount as is reasonable in the circumstances.

2. A court cannot in its discretion award costs less than the full amount of properly incurred expenses that are proved:  Hugall v Hume [2002] WASCA 29; (2002) 127 A Crim R 565 [4]. The decision whether expenses are properly incurred or whether costs sought under item 6 of table C of the 2012 Determination or the 2014 Determination for preparation where the trial does not proceed are reasonable in the circumstances is discretionary: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [19] ‑ [21].

3. The way in which an appeal court approaches a decision involving a discretionary judgment is explained by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance (504, 505).

4. Where an appeal against a costs order goes to quantum only a court will be reluctant to interfere with the decision below unless a significant error is found in the magistrate's approach and it will only do so in an extreme case:  Norton v Morphett (1995) 83 A Crim R 90, 100 Phillips JA citing Jordan CJ in Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178, 183 ‑ 184.

Affidavit of Johnson Kitto

1. On 30 November 2015 the appellant served upon the respondent an affidavit of Johnson Kitto sworn on 27 November 2015.  Generally an appeal court must decide an appeal on the evidence and material that was before the magistrate:  Criminal Appeals Act 2004 (WA) s 39(1). However, the court has discretion to admit any other evidence for the purpose of dealing with an appeal: Criminal Appeals Act s 39(3), s 40(1)(e). One principle that governs the courts discretion to admit further evidence is when the evidence came to exist. Fresh evidence is evidence that did not exist at the time of the trial or could not have been discovered with reasonable diligence and evidence which is tendered for the first time at the appeal that is not fresh is new evidence: DPJB v The State of Western Australia [2010] WASCA 12 [61]. The court takes a stricter approach on the admission of new evidence because of the public interest in finality of litigation and because a litigant should generally be bound by the decisions made at trial: de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [157] ‑ [158]; Urbano v The State of Western Australia [2006] WASCA 147 [10], [51]. If new evidence is admitted, it can only be used to show that a miscarriage of justice has occurred by reason of the fact that the evidence was not called at the trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 395 [3]; de la Espriella-Velasco v The Queen [156].

2. The appellant argues that this evidence is fresh evidence and the respondent contends that the evidence is new.  The appellant argued the evidence contained in the affidavit was fresh because the magistrate refused to accept it at the hearing.  The evidence was available at the time of the hearing and for reasons I will give, counsel for the accused could have presented the evidence to the magistrate.  It is new evidence and not fresh evidence.  Further, there is no ground of appeal that goes to whether there was a miscarriage of justice.  In the circumstances I would not exercise my discretion to admit the further evidence contained in the affidavit of Johnson Kitto. 

Ground 1:  Failure to make any, or any adequate, inquiry

1. The appellant contends that the magistrate failed to make any, or any adequate, inquiry as to the expenses properly incurred by the prosecution.  The respondent argues that the magistrate knew the total costs sought by the appellant and the number of appearances.  Her honour also knew the charge was a very simple one, and that the appellant's expenses included expenses in relation to summonsing a defence witness, proofing that witness and the accused and reviewing some video footage.

2. A magistrate may apply a broad brush approach to fixing costs and in doing so the magistrate must make sufficient inquiries and possess whatever information is required to ensure that the award of costs is logical, fair and reasonable:  Basham v City of Joondalup [2015] WASC 345 [33] Corboy J; Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] ‑ [27]. However, it is the principal duty of a party, through counsel, to advance evidence and argument to support the outcome for which they contend: Evans v Pelka [2005] WASC 240 [25] McKechnie J. It is also established that the reasons given by a magistrate may be shortly stated and not developed in great detail as long as they disclose the essential grounds on which the decision is made: Nevermann v The Queen (1989) 43 A Crim R 347 350; Taylor v WA Police [2007] WASC 158 [51]; Basham v City of Joondalup [No 2] [2016] WASC 120 [112], Fiannaca J. Item 6 of both of the Determinations provides that the maximum amount for preparation where the trial does not proceed is such amount as is reasonable in the circumstances. However, this should be considered in the context of item 4 of those Determinations which allows a maximum amount for the preparation of the case and half day trial, including counsel fee, of $6,688 and $7,172 respectively.

3. In this matter her Honour was required to decide what costs were properly incurred and the amount that was reasonable in the circumstances.  When awarding costs, a magistrate's inquiry need not follow any particular path.  What is required is that the magistrate make sufficient inquiries and possess whatever information is required to make a logical, fair and reasonable costs award.

4. In this case, although the magistrate's reasoning is not fully disclosed, her Honour considered submissions as to the costs that the appellant was claiming, work done, time spent and the very simple nature of the charge before deciding what the appropriate award in this case would be.  The magistrate made sufficient enquiries so that there was enough information before her to enable her to decide the appropriate costs award.  It was open to counsel to make further submissions as to the work done and it is counsel's duty to do so.

Taylor v WA Police

1. Counsel for the appellant at the hearing sought to rely on the decision of Taylor v WA Police and indicated that the existing grounds of appeal should be understood as encompassing the contention that the magistrate had erred by prejudging the matter (ts 41, 42).  Taylor v WA Police is an appeal against the decision of a magistrate as to the quantum of costs ordered for a successful defendant in a summary prosecution.  Simmonds J found that the magistrate in that case indicated that he was not willing to hear extensive submissions as to costs:  

   … in not permitting counsel for the applicant, as it appeared he had not done, to respond to the concern about duplicative costs, his Honour appears to have been indicating there was no response that could satisfy him. This, it appears to me, was an error in his approach to his task as I have explained it [55].

2. His Honour also found that where a magistrate indicates a view of the limit of the costs they would allow and counsel could not be expected to press any submission then that would ground an appeal against the resultant decision [61]:

   … in this case, on the transcript as I read it, the learned magistrate had indicated a view of the limit of the costs he would allow. In those circumstances, it seems to me that the applicant might have considered that the learned magistrate had in fact ruled on any such submission … If the learned magistrate had not meant to make such a ruling, then it seems to me his words indicated otherwise [61].

3. In the matter before me, counsel for the appellant invited me to find that the magistrate had made the same error by indicating prejudgment, not hearing argument and failing to make an inquiry (ts 6, 42).  This was said to be evident in the following words of the magistrate:

   HER HONOUR:  How much are you wanting?

   HERSHOWITZ, MR:  Well, the ‑ would your Honour like me to break it down in terms of the scale?

   HER HONOUR:  No.  What number are you seeking?

   HERSHOWITZ, MR:  It's 3939.

   HER HONOUR:  No, I won't be making that sort of order.

4. However, counsel for the respondent argued this matter is unlike Taylor as the magistrate went on to hear counsel for the accused on the nature of the accused's trial preparation (ts 31, 32).  Her Honour did not rule, or indicate that she had ruled on the amount of costs that would be awarded.  After hearing submissions on the amount of preparation the magistrate granted a costs order in the sum of $1,500.  The magistrate made an enquiry and took submissions as to work done.

5. Counsel are accustomed to robust exchanges with the bench.  The words of the magistrate must be understood in the context in which they were spoken.  This case is unlike that of Taylor v WA Police in that the magistrate could not be taken to have ruled on the matter.  Although the magistrate had provisionally indicated that she wouldn't be making such an order, her Honour took submissions from counsel on the amount of work that had been completed in the matter.  It is also evident that her Honour was considering the submissions being made by counsel and she did make enquiries of counsel in order to get more detailed information about the submissions being made.  Similarly it was open to counsel to explain the bill in the context of the scale.  This is not a case where a magistrate has given a view on a limit to any costs award where counsel could not have been reasonably expected to press submissions.

Decision on ground 1 of the appeal

1. In those circumstances I am not persuaded that the magistrate made inadequate inquiries to enable her to decide on an appropriate costs award and leave to appeal on ground 1 should be refused.

Ground 2:  Failure to consider or apply the hourly rates and time spent in preparation

1. Ground 2 is that the learned magistrate erred in law by failing to consider or apply the hourly rates and the time spent (determined at item 5 of the 2014 Determination) by the accused's defence lawyers in the preparation and conduct of the defence.

2. The appellant argues the magistrate simply refused to take into consideration the hourly rates and time spent by the appellant's lawyers in getting up the matter for trial, and ultimately, whether the costs paid by the appellant to his solicitors were properly incurred (ts 13). 

3. The respondent argues that this ground implies that a magistrate's task is simply to apply the scale rates to the number of hours worked by the appellant's legal practitioner.  Instead, a magistrate is required to assess what expenses were properly incurred and reasonable in the circumstances. 

4. At the hearing, both parties agreed that to be properly incurred the expenses must have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination.  In fixing the sum for costs the court will not subject the costs to the detailed scrutiny often applied in taxation of costs:  Brookvista Pty Ltd v Meloni [26]. Nor is a magistrate required to expressly apportion the costs awarded between items in a costs determination: Taylor v WA Police [54], Simmonds J.

5. The magistrate was required to decide what costs were properly incurred and reasonable in the circumstances.  In performing this task, a magistrate does not necessarily apply the scale rates to the number of hours worked by the successful party's solicitors because not all expenses incurred will be reasonably required to ensure adequate presentation of the accused's case.

6. In assessing the matter, it was open to the magistrate to consider the submissions and come to a conclusion on what would be a logical, fair and reasonable cost award in the circumstances.  It would subject a magistrate to too onerous a task to require them to explain in detail why they have refused to award the appellant's lawyers the full time worked and the amount claimed under the scale.  As the assessment required a decision as the expenses properly incurred and what amount was reasonable in the circumstances it was open to her Honour to refuse to award the amount claimed by the accused after considering submissions as to the nature of the charge, matter and work done.

7. I have already found that the magistrate had enough information before her to make a decision on the appropriate costs award.  Simply because the magistrate did not refer to the scale rates in her decision does not mean that she did not consider them.  Indeed her Honour ruled on the question of costs straight after hearing uncontradicted evidence from the appellant's counsel and there is no reason to believe that the magistrate did not have regard to those submissions.  The appellant has failed to make out that her Honour refused to take into consideration the hourly rates and that she did not make her decision in accordance with the requirements of the Accused's Costs Act.  Leave to appeal on ground 2 of the appeal will be refused. 

Ground 3:  Manifest inadequacy

1. The appellant argues that whilst $500 for two appearances is an acceptable amount, $1,000 to get up for a criminal trial is so low as to manifest error. The respondent argues that an award of $1,000 represents slightly less than four hours work at the junior practitioner's maximum rate which in the context of a very simple charge cannot be regarded as manifestly inadequate.

2. The first appearance on 21 November 2014 is governed by the 2012 Determination which allows a maximum of $297/hour for a junior practitioner.  The second appearance on 13 October 2015 is governed by the 2014 Determination which allows a maximum for a junior practitioner of $297/hour.  Counsel for the appellant accepted that $500 for two appearances was an appropriate amount (ts 19).  At the hearing on 13 October 2015 the appellant's counsel accepted that the costs of 13 March 2015 may not be awarded.  Item 4 of Table C of the 2014 Costs Determination allows a maximum of $7,172 for the presentation of case and half day trial, including counsel fee.  The second half day has a maximum of $792 and $3,190 and for each successive full day.  This suggests that the scale loads more on to the first half day of a trial on the first day.  If it is proper to divorce counsel fee from that amount it notionally leaves $4,774 as the maximum of getting up of the matter.

3. The parties apportioned the award so that $500 was for two appearances, not including the appearance of 13 March 2016, and the remaining $1,000 was for trial preparation.  However, it is unclear what values were placed on which parts of the conduct of the matter by her Honour in arriving at the global figure of $1,500.  There is nothing in her Honour's reasoning which convinces me that it is proper to apportion the award between appearances and the preparation for trial in the way the parties have done.  In those circumstances I must assess whether an award of $1,500 for the entirety of the work done is manifestly inadequate.

4. For this ground to succeed the appellant must show that the discretion has been exercised in a manner which is manifestly wrong and where, as here, the question is one of amount only, will do so only in an extreme case:  Norton v Morphett (100) Phillips JA citing Jordan CJ in Schweppes' Ltd v Archer (183 ‑ 184).

5. The appellant draws a link between this case and the circumstances in ECS v Martin [2012] WASC 51. That case concerned a charge of failing to comply with a move on order contrary to s 153(1) of the Criminal Investigations Act 2006 (WA).  The police discontinued the charge and it was therefore dismissed.  After refusing to award the accused $2,500 the magistrate awarded $1,000 in costs.  On appeal the parties agreed that the magistrate erred in not allowing costs for an appearance that the appellant's lawyer had made which was in the circumstances reasonably necessary and reasonably incurred and that $2,500 was a reasonable sum.  His Honour found that it was open to the parties to resolve the dispute by consent order which they did not do.  Hall J in that case awarded the appellant his full costs because of the parties' agreement and the fact the award was within the limits of the Determination.  However, his Honour expressed reservations that all of the work for which expenses were claimed was reasonably necessary, and noted the charge was a simple one and the alleged facts were straightforward.  I do not find that case helpful to the appellant's argument.

6. The scale must accommodate charges of varying degrees of difficulty in matters that may themselves be of varying degrees of complexity.  This matter related to a very simple charge and counsel for the appellant conceded there was nothing exceptional about getting up the matter for the expected trial (ts 27) and only two short appearances were necessary by counsel.  In those circumstances even if the award of $1,500 is to be considered as low it is not so low as to manifest error.  Nor does this represent an extreme case which warrants interference with the decision below.  Leave to appeal on ground 3 of the appeal will be refused.

Conclusion

1. At the hearing counsel for the respondent suggested that it was possible that if I found in favour of the appellant on a ground of appeal, I could still dismiss the appeal if no substantial miscarriage of justice had occurred:  Criminal Appeals Act s 14(2). As I have found that the appellant should not be granted leave to appeal and that the appeal should be dismissed, this issue does not arise. Leave to appeal on each ground will be refused and the appeal shall be dismissed.