Bolton v Stange - [2001] WASCA 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BOLTON -v- STANGE [2001] WASCA 34

CORAM: TEMPLEMAN J

HEARD: 18 JANUARY 2001

DELIVERED : 18 JANUARY 2001

FILE NO/S: SJA 1189 of 2000

BETWEEN: FRANCIS ROBERT BOLTON
Appellant
AND
INGOLF BRIAN RAINER STANGE
Respondent

Catchwords:

Procedure - Costs - Appeal from decision of Magistrate not to award costs to successful defendant - Defendant represented by Aboriginal Legal Service of WA Inc - Where accused person is represented by a legal practitioner the Court must assume solicitor and client relationship exists with consequential obligation to pay costs

Official Prosecutions (Defendants Costs) Act 1973 (WA), s 3(2), s 4, s 5

Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 142, applied

Legislation:

Official Prosecutions (Defendants Costs) Act 1973 (WA)

Justices Act 1902

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr C L J Miocevich
Respondent: Ms J C Pritchard

Solicitors:

Appellant: Aboriginal Legal Service of WA Inc
Respondent: State Director of Public Prosecutions

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

Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152
Latoudis v Casey (1990) 170 CLR 534

Case(s) also cited:

"M" (A Child) v The Queen 13 WAR 306
O'Connel v Noye, unreported; SCt of WA (Lavan SPJ); Library No 2275; 31 January 1977
O'Dea v Fletcher, unreported; SCt of WA (Murray J) ; Library No 920666; 20 November 1992
R v Miller [1983] 3 All ER 186
Small v Walker, unreported; SCt of WA (Smith J); Library No 57771; 29 January 1985

TEMPLEMAN J: This is an appeal from a decision of a Stipendiary Magistrate not to award costs in favour of a successful defendant.
The appellant, Mr Francis Robert Bolton, was charged with unlawful assault and was tried before a Stipendiary Magistrate on 15 March 2000. The charge was dismissed.
At the end of the proceedings the appellant's solicitor sought an order for costs. The appellant was represented by the Aboriginal Legal Service, a fact which apparently resulted in the learned Magistrate deciding not to award costs. In the course of submissions he said:
"Your funding comes from the government. I see it as a fruitless exercise to tell the government to take money out of one pocket and put it in another."
The application was pursued, but the learned Magistrate remained unpersuaded. In his short reasons he said:
"The complaint is dismissed and as to costs I do not believe in the circumstances that an order is warranted. That is a shorthand way of pursuing my previous practice. Until someone tells me it is wrong, it is a practice I intend to follow."
The appellant now appeals from that decision.
The learned Magistrate had a discretion in the matter of costs. That discretion was exercisable under two statutory provisions: s 152 of the Justices Act 1902 and s 5 of the Official Prosecutions (Defendants Costs) Act 1973. Section 5 of that Act provides:
"Subject to this Act, a successful defendant is entitled to his costs."
Costs are defined…

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 Bolton v Stange

Details

AGLC: Bolton v Stange [2001] WASCA 34
Case: [2001] WASCA 34
Decision Date: 18 JANUARY 2001

CaseChat Overview and Summary

In the case of Bolton v Stange, the plaintiff, Bolton, sought a review of a decision made by a Magistrate not to award costs to the defendant, Stange, who was successful in their defence. The defendant was represented by the Aboriginal Legal Service of Western Australia Incorporated during the proceedings. The crux of the case lay in determining whether the court was obligated to award costs to the defendant under the Official Prosecutions (Defendants Costs) Act 1973 (WA) given the solicitor-client relationship that exists between a represented accused person and their legal practitioner.

The court had to decide whether the statutory presumption of a solicitor-client relationship mandated the awarding of costs to the defendant. The relevant sections of the Act in question were sections 3(2), 4, and 5, which imposed an obligation on the court to assume such a relationship and award costs unless it was proven otherwise. The court also considered the applicability of the decision in Hudgson v Endrust (Australia) Pty Ltd, where it was established that the mere representation of a party by a legal practitioner could lead to the presumption of a solicitor-client relationship.

The court ruled that the presumption of a solicitor-client relationship between the defendant and their legal representative was sufficient to trigger the obligation to award costs under the Act. Consequently, the court found that the Magistrate's decision not to award costs was in error, and the defendant was entitled to have their costs paid. The court's reasoning was grounded in the statutory language and the established legal precedent that reinforced the presumption of a solicitor-client relationship in such circumstances. The court ordered that the defendant be awarded their costs as per the Act.

Orders