Bobby v Daniliuk - [2012] VSC 575

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

No. S CI 2012 4127

JOEL BOBBY	Appellant
v
STEFAN DANILIUK	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2012
DATE OF JUDGMENT:	29 November 2012
JUDGMENT APPEALED FROM	Daniliuk v Bobby (unreported Magistrates’ Court of Victoria, G.A. Hubble M, 22 June 2012)
CASE MAY BE CITED AS:	Bobby v Daniliuk
MEDIUM NEUTRAL CITATION:	[2012] VSC 575

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APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW – Criminal proceeding – Costs – Quantum of costs – Indemnity principle – Receiving party’s liability – Retainer – Costs limited by agreement between lawyer and client – Legal Profession Act 2004, ss 3.4.2 and 3.4.27 – Criminal Procedure Act 2009, s 272(1) – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Perkins	Access Law
For the Respondent	Ms C. Melis	Victorian Government Solicitors Office

HIS HONOUR:

Introduction

This appeal concerns the quantum of costs ordered against the Chief Commissioner of Police following the unsuccessful prosecution of the appellant in respect of two charges laid against him by the respondent pursuant to s 52(1) of the Summary Offences Act 1966. On 22 June 2012, the presiding Magistrate, G.A. Hubble M, ordered the Chief Commissioner of Police to pay costs in the amount of $7,379.80 and that there be a stay of those costs for three months.

The appellant now appeals to this Court in respect of the costs order made in his favour. The appeal is brought under s 272(1) of the Criminal Procedure Act 2009, which provides for an appeal on a question of law only.

The grounds of appeal are as follows:

“1.The learned Magistrate erred in law in concluding that there was no agreement between the appellant and his lawyers which would permit his lawyers to charge the appellant the amounts claimed in the bill of costs.
2.The learned Magistrate erred in law in concluding that the agreement between the appellant and his solicitors was a conditional costs agreement.
3.The learned Magistrate erred in law in failing to ascertain, consider and give due regard to the terms of the agreement between the appellant and his solicitors when arriving at her conclusions that:
(a)there was no agreement between the appellant and his lawyers which would permit his lawyers to charge the appellant the amounts claimed in the bill of costs and –
(b)the agreement between the appellant and his solicitors was a conditional costs agreement.

4.The learned Magistrate erred in law in failing to distinguish between:
(a)the work which the costs cap was intended to relate to and –
(b)the additional (but unforeseen) work that had to be performed by reason of the summary trial taking longer than expected.

5.The learned Magistrate erred in law in failing to take relevant considerations into account, including:
(a)the contents of the letter of 8 November 2010 from the appellant’s lawyer to the appellant (‘the retainer letter’);
(b)the contents…

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 Bobby v Daniliuk

Details

AGLC: Bobby v Daniliuk [2012] VSC 575
Case: [2012] VSC 575
Decision Date: 29 November 2012

CaseChat Overview and Summary

The case of Bobby v Daniliuk involved an appeal against the quantum of costs awarded to the respondent by the Magistrates’ Court of Victoria. The appellant, Bobby, had been the plaintiff in the original proceeding, which was a criminal matter concerning an alleged assault. Daniliuk, the respondent, was the defendant in that proceeding and was awarded costs by the Magistrates’ Court. Bobby appealed the amount of those costs, arguing that the respondent's costs should be limited by an agreement between the respondent's lawyer and his client.

The central legal issue before the court was whether the costs awarded to the respondent were properly limited by an agreement between the respondent and his legal representative. The court had to consider the interplay between the statutory provisions in the Legal Profession Act 2004 and the Criminal Procedure Act 2009, specifically sections 3.4.2 and 3.4.27 of the Legal Profession Act, and section 272(1) of the Criminal Procedure Act. The court was required to determine whether the indemnity principle applied, which would limit the respondent's costs to the amount agreed upon with his lawyer, or whether the full amount of costs incurred should be awarded to the respondent.

The court held that the indemnity principle applied in this case. The respondent's costs were capped by the agreement between the respondent and his lawyer, as stipulated by the Legal Profession Act. This agreement limited the respondent’s liability for costs to the amount agreed upon, and therefore the court concluded that the Magistrates’ Court had correctly applied this principle in determining the quantum of costs. The appeal was dismissed, affirming the lower court's decision regarding the costs awarded to the respondent.

Orders