"C" v Marsh
[2006] WASC 41 (S)
•15 MARCH 2006
"C" -v- MARSH [2006] WASC 41 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 41 (S) | |
| Case No: | SJA:1090/2005 | 11 JANUARY & 15 MARCH 2006 | |
| Coram: | SIMMONDS J | 15/03/06 | |
| 1/09/06 | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | "C" JASON LEE MARSH |
Catchwords: | Costs Appeals against convictions Not all appeals successful Official Prosecutions (Accused's Costs) Act 1973 (WA) Costs awarded |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2) Criminal Procedure Rules 2005 (WA), s 65 Justice Act 1902 (WA), s 199(1)(g), s 219 Legal Aid Commission Act 1976(WA), s 41, s 43 Legal Practice Act 2003 (WA), s 226 Legal Practitioners Act 1893 (WA), s 62A(2) Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4(2)(a)(iv), s 4(2)(b)(ii), s 5(1), s 5(3), s 5(4), s 6 |
Case References: | Australian Securities & Investments Commission v Emu Brewery Mezzanine Ltd [2004] WASC 241(S) C v Marsh [2006] WASC 41 Haynes v Hughes [2001] WASCA 169 Mastrangelo v Reynolds [2001] WASCA 347 O'Dea v Fletcher, unreported; SCt of WA (Murray J); Library No 920666; 20 November 1992 Sorrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980170; 7 April 1998 Westgold Resources NL v St George Bank Ltd, unreported; SCt of WA (Anderson J); Library No 980717; 9 December 1998 Williams v Beverly & Ors, unreported; SCt of WA; Library No 980474; 24 August 1998 Winter v Fleet [2002] WASCA 128 Bank of Western Australia Ltd v O'Neill, unreported; SCt of WA; Library No 990018; 22 January 1999 Bolton v Stange [2001] WASCA 34 Bridgetown-Greenbushes Friends of the Forest Inc & Anor v Executive Director of the Department of Conservation and Land Management & Ors, unreported; SCt of WA; Library No 980103; 6 March 1998 Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152 Latoudis v Casey (1990) 170 CLR 534 Russell v McGuire, unreported; SCt of WA; Library No 940108; 3 March 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 1 SEPTEMBER 2006 FILE NO/S : SJA 1090 of 2005 BETWEEN : "C"
- Appellant
AND
JASON LEE MARSH
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T G SCHWASS
File No : CC 1803 of 2005, CC 1804 of 2005, CC 1805 of 2005
Catchwords:
Costs - Appeals against convictions - Not all appeals successful - Official Prosecutions (Accused's Costs) Act 1973 (WA) - Costs awarded
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2)
Criminal Procedure Rules 2005 (WA), s 65
Justice Act 1902 (WA), s 199(1)(g), s 219
Legal Aid Commission Act 1976(WA), s 41, s 43
Legal Practice Act 2003 (WA), s 226
Legal Practitioners Act 1893 (WA), s 62A(2)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4(2)(a)(iv), s 4(2)(b)(ii), s 5(1), s 5(3), s 5(4), s 6
Result:
Costs orders made
Category: B
Representation:
Counsel:
Appellant : Ms H K Muhling
Respondent : Mr S M Stocks
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Australian Securities & Investments Commission v Emu Brewery Mezzanine Ltd [2004] WASC 241(S)
"C" v Marsh [2006] WASC 41
Haynes v Hughes [2001] WASCA 169
Mastrangelo v Reynolds [2001] WASCA 347
O'Dea v Fletcher, unreported; SCt of WA (Murray J); Library No 920666; 20 November 1992
Sorrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980170; 7 April 1998
(Page 3)
Westgold Resources NL v St George Bank Ltd, unreported; SCt of WA (Anderson J); Library No 980717; 9 December 1998
Williams v Beverly & Ors, unreported; SCt of WA; Library No 980474; 24 August 1998
Winter v Fleet [2002] WASCA 128
Case(s) also cited:
Bank of Western Australia Ltd v O'Neill, unreported; SCt of WA; Library No 990018; 22 January 1999
Bolton v Stange [2001] WASCA 34
Bridgetown-Greenbushes Friends of the Forest Inc & Anor v Executive Director of the Department of Conservation and Land Management & Ors, unreported; SCt of WA; Library No 980103; 6 March 1998
Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152
Latoudis v Casey (1990) 170 CLR 534
Russell v McGuire, unreported; SCt of WA; Library No 940108; 3 March 1994
(Page 4)
- SIMMONDS J:
Introduction
1 This is a supplementary judgment as to costs. The proceedings are an appeal against convictions for an assault against each of three different persons.
2 Each of three prosecution notices had charged an assault against a different person. In the Children's Court, the learned Magistrate had tried the three charges together. A separate Appeal Notice was lodged for the purposes of Criminal Procedure Rules 2005 (WA), r 65, against the conviction on each prosecution notice.
3 In my judgment on the appeal, "C" v Marsh [2006] WASC 41, at [5] - [15], I set out how the appeals had come before me, the parties' mutual understanding that leave to appeal had been granted in respect of all three appeal notices, and why I determined them together.
4 In my judgment, I determined the convictions on two of the prosecution notices should be quashed, while the conviction on the third notice should be left undisturbed. At the delivery of my judgment, I further determined that the appropriate order to make was to remit the matter of the charges for which the convictions had been quashed to the Children's Court, to be retried before a different Magistrate. I also determined that, in light of my decision, the parties should, by 22 March 2006, make submissions as to the costs order I should make.
5 I particularly asked for submissions as to two issues in respect of costs. One was how to deal with the determination that only the convictions on two of the three charges should be quashed and a retrial ordered, whereas the conviction on the third charge should be left undisturbed. The other issue was how the relevant scale would apply in this case.
6 In the event, written submissions were provided to the Court, from the appellant (dated 20 March 2006) and from the respondent (dated 22 March 2006). For reasons which are not entirely clear, those submissions did not reach me until early August, after the parties made inquiries as to the matter.
7 I deal with the two issues to which I have referred in the order I have described.
(Page 5)
The appropriate order where not all of the appeals succeed
8 I set out below the relevant legislative provisions as to costs.
9 The starting point is Criminal Appeals Act 2004 (WA) ("the Appeals Act"), s 14(1)(h), which reads:
"(1) In deciding an appeal, the Supreme Court may do one or more of the following –
(a) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction;"
"(1) If a JP or a police officer, acting in an official capacity, is a party to proceedings under this Part, the Supreme Court must not order that the JP or officer is to pay any costs."
- This provision is very similar to Justices Act, s 219, first paragraph. The respondent was a police officer.
11 It had been held that s 219 of the Justices Act should be read with Official Prosecutions (Defendant's Costs) Act 1973 (WA), which by Act No 84 of 2004 was renamed the Official Prosecutions Act (Accused's Costs) Act 1973 (WA) ("the Costs Act"). See O'Dea v Fletcher, unreported; SCt of WA (Murray J); Library No 920666; 20 November 1992, approved in Mastrangelo v Reynolds [2001] WASCA 347, Malcolm CJ, Wallwork J and Einfeld AUJ agreeing, at [36], [40]. Act No 84 of 2004 made no other amendments that are material for my purposes. It was not put to me by the respondent that the provisions of the Appeals Act set out above should be seen as working any change, as by way of pro tanto repeal, of the Costs Act. Rather, as I will explain, the respondent conceded the appellant was entitled to two-thirds of his costs in the Appeal Court.
12 The principally relevant provisions of the Costs Act appear to me to be s 5(1), (3) and (4), which read:
"(1) Subject to this Act, a successful accused is entitled to his costs.
(Page 6)
- …
(3) Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
(4) Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court."
13 These provisions need to be read with Costs Act, s 4(2)(a)(iv) and (2)(b)(ii), which read:
"(2) An accused –
(a) subject to paragraph (c) [which has no application to this case], is successful if –
…
(iv) his conviction of the charge is set aside;
(b) is partly successful if –
…
(ii) he is charged with several offences in the one prosecution notice and is successful in respect of one or some of them;"
15 An order on appeal by an accused that a conviction is set aside, and the matter remitted for a retrial, as opposed to an acquittal substituted, puts the appellant under s 5(3), not under s 5(4): Sorrell v Bryant
(Page 7)
- (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980170; 7 April 1998, approved in Mastrangelo, per Malcolm CJ, Wallwork J and Einfeld AUJ agreeing, at [39], [40]. The result, as submitted to me by the appellant, is that the Court is not, under the Costs Act, able to make an order for the costs in the summary Court, at least in respect of those convictions which were set aside. It is, as explained in Sorrell, for that Court, at the hearing to which I have remitted the relevant matters, to make such any such order (Parker J, at 4):
" … in respect of the hearing of that complaint; ie both the proceedings before there was the appeal to this Court and the resumed proceedings to complete the hearing of the complaint pursuant to the order now made by this Court."
17 The appropriate order as to the costs in the summary Court would seem to me to be, in respect of the original hearing on those charges convictions on which were set aside, that the Magistrate at the "resumed hearing" is to determine the order to be made as to the total costs in that court: see the order in Winter.
18 However, in respect of the costs in the summary Court, there remains the matter of the costs of the respondent in respect of the hearing on the conviction which was not disturbed. I was not referred to any decision as to those costs by the learned Magistrate in the Children's Court, and I could find none in the record of the proceedings and outcome there. However, it does not appear from the respondent's submissions that it seeks an order as to those costs. Accordingly, I say no more about them.
19 This leaves the costs in the Appeal Court. There are two separate matters arising out of the result. One is the costs of the respondent in respect of the appeal against the conviction that was not disturbed. The other is the costs of the appellant in respect of the convictions that have been quashed.
20 As to the first matter, the costs of the respondent, the respondent put to me that I should make an order for the respondent to have one third of the costs in the Appeal Court. The respondent further put to me that I should make an order for the appellant to have two-thirds of the costs in
(Page 8)
- the Appeal Court. I should then set the two orders off against one another, which would give the appellant one-third of his costs, to be quantified as I will explain under the next heading.
21 The appellant submitted to me that the respondent has no statutory or other entitlement to his costs. Even if I were to hold there was a power to award such costs, I should not do so in this case. On either submission, the appellant should receive two-thirds of its costs, with no further reduction, by way of set-off or otherwise.
22 I do not agree. The appellant's submissions, as I understand them, treat the proceedings in the Appeal Court as a separate appeal on each notice, as the respondent's submissions do. Both sets of submissions appear to be to the effect that I should treat the issues raised on each appeal notice as substantially similar, although with different implications for different victims. I agree. As my judgment in "C" indicates, the three charges tried together arose out of a chain of events consisting in an altercation in a store involving the accused and a husband and wife, who owned the store, and their young son. The grounds of appeal involved a consideration for each of the appeal notices of the application to each of the father, mother and son of Criminal Code s 248, although there was also a consideration of other Code defences for the son and the mother. The grounds of appeal also involved a consideration of the same evidentiary issues as to the credibility of the same witnesses for each appeal notice, although with different consequences for the convictions in respect of the alleged assaults on the different individuals involved.
23 In those circumstances, it seems to me that treating the costs of the appeal proceedings as costs of a single proceeding, without further discrimination by reference to the nature of the issues each appeal notice raised, is appropriate. Indeed, neither party put the contrary, it seems. I also note the difficulties created in making any such discrimination, and the approach in Westgold Resources NL v St George Bank Ltd, unreported; SCt of WA (Anderson J); Library No 980717; 9 December 1998, at 5:
"The court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar-perfect costs orders. To adopt that practice would be to add an extra dimension to litigation which, by and large, is already these days complicated and expensive enough."
(Page 9)
24 On that approach, it seems to me that prima facie each party should receive the appropriate portion of its costs. That proportion is two-thirds as to the appellant's costs, and one-third as to the respondent's costs.
25 This leaves the matters of whether or not I can and should make the order for the respondent's costs and the set-off that the respondent's submissions contend for.
26 As to my power to make an order for the respondent's costs, I have concluded I have such power, by virtue of the breadth of Appeals Act, s 14. Further, in a case in which as I will shortly explain I should fix costs for the appellant, I should exercise my discretion as to the costs of the respondent so as to recognise the respondent's success on one of the appeal notices.
27 As to the set-off, I note that its effect is to put the costs of the respondent at the same amount as the costs of the appellant: compare my costs order in Australian Securities & Investments Commission v Emu Brewery Mezzanine Ltd [2004] WASC 241(S). The respondent does not provide me with any other quantification of its costs, as I will explain below.
28 However, the respondent directed my attention to Legal Practitioners Act 1893 (WA), s 62A(2), providing for the party for whom a practitioner performs any work or renders any services in an official capacity for the "Crown" or an agent of the "Crown" to recover:
" … counsel fees, costs, charges, disbursements and other remuneration in respect of any work performed or services rendered by the legal practitioner for the party in the same manner and to the same extent as if the legal practitioner so employed were a certificated practitioner in private practice engaged by that party."
29 This may be the basis upon which I am apparently invited to equate the respondent’s costs to the appellant's.
30 I note that the Practitioners Act was replaced by the Legal Practice Act 2003 (WA), effective 1 January 2004, s 226 of which appears to be in the same terms, except for the substitution of the "State" for the "Crown".
31 I have again noted the breadth of my discretion under Appeals Act, s 14(1)(h). I have already indicated my view that this gives me the statutory authority to make an order that the respondent is entitled to
(Page 10)
- one-third of its costs. It also seems to me that it gives me the authority to order that those costs should be taxed if not agreed, or to fix them. The latter is the approach the respondent appears to be pressing on me.
32 It is clear to me from the appellant's submissions that the appellant does not concede the respondent's costs should necessarily be equated to its own. I do not consider that, in the absence of any quantification from the respondent, I can assume its costs should be equated to those of the appellant. I am therefore, it seems to me, not in a position to fix the respondent's costs. As a matter of first response, I would therefore incline to make an order for the respondent to have one-third of its costs, to be taxed if not agreed.
33 I note, however, that, as to the appellant's costs, it is not clear I have an equivalent power under the Costs Act, in view of the wording of s 5. That provision appears to require the Appeal Court to fix the costs if it concludes a costs order under the Act should be made: see Haynes v Hughes [2001] WASCA 169, Roberts-Smith J, at [35] and [36]. This does not seem to prevent the Appeal Court referring to a Registrar for inquiry and report to it the amount of costs that it should fix: Williams (supra), referred to in Haynes at [35]. I consider that second type is the order in respect of the respondent's costs I should make, if I fix the appellant's costs under the Costs Act. As I explain below, I consider I have sufficient information with which to make an order fixing the appellant's costs.
The fixing of costs
34 I have already indicated how I would deal with this issue as to the respondent's costs in the appeal. I turn now to the fixing of the appellant's costs in the appeal. As I have indicated, I have information from the appellant as to those costs.
35 The appellant's submissions included a response to his understanding of the position the respondent would put to the Court at the time those submissions were prepared. The appellant had obtained a grant of legal aid for the conduct of the appeal. The appellant understood the respondent would submit to me that the appellant's costs should not exceed the amount of the grant. That submission would be based on Legal Aid Commission Act 1976 (WA) ("the Commission Act"), s 41. The respondent in a letter dated 17 March 2006 attached to the appellant's submissions indicates he adopted the position that the ceiling on the appellant's costs should indeed be that amount which was the "legal aid grant", although the letter goes on to say the ceiling should be an amount
(Page 11)
- equal to "any contribution [the appellant] has been required to make to the Director of Legal Aid". However, neither position is repeated in the written submissions dated 22 March 2006 the respondent lodged with the Court. Nor, it seems to me, is either position described in the letter of 17 March 2006 readily to be squared with Commission Act, s 43. Accordingly, I say no more about those positions, except as below, where I come to the appellant's claim for costs in respect of them.
36 The parties' submissions agreed that the applicable scale of costs is that in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 (25 June 2004). There is no contention put to me that Costs Act, s 6 (on conduct that might disentitle an accused to their costs), was capable of application here.
37 The appellant put up a "Draft Bill of Costs" as part of his submissions dated 20 March 2006. That Bill is as follows (the item "Drawing Bill of Costs" is blank, as are those fields relating to the taxation process):
"ITEM
22(a) Notice of appeal (3) 15 hours $5115
22(c) Getting up 10 hours $3410
22(d) Counsel fee on hearing 2 days
- including preparation $8679
1 day hearing
22(h) Attending reserved decision 1.5 hours $511.50
24(b) Settling and extracting order $173.00
29 Drawing Bill of Costs $
Sub total $17888.50
Two thirds $11925.67
thereof
30 Photocopying ($1 per page)
Affidavit of 20 September [2005] 213 pages copied 2x $426
Affidavit of 7 October 2005 19 pages x2 $38
- Appeal Notices 12 pages $12
Outline of submissions 18 pages $18
List of Authorities 4 pages $4
Chronology 4 pages $4
Photocopying of cases relied upon 80 pages $80
Photocopies of the cases relied upon by the state 44 pages $44
32 Researching and Drafting Submission on costs 8 hours $2728
33 Transcript $588
TOTAL: $15867.67
TAXED OFF: $
$
ADD TAXING FEE $
ALLOWED AT: $"
39 I also note that the appellant claims the full amount of research and drafting submissions as to costs. The respondent's submissions make no objection to this claim. I note that about one page of the six pages of submissions is devoted to the matter of the positions which the respondent did not include in its submissions to me concerning limits on costs in the case of a legally aided appellant. I previously referred to those positions. In the context of the exchange between the appellant's and the respondent's solicitors concerning those positions, I do not consider that attention was unreasonable. Nor, in the context of the complexity of the issues raised in relation to the costs of this appeal, do I consider the overall claim to be excessive.
(Page 13)
40 However, I do not consider that allowing the claim for the full amount would be appropriate in light of the partial success the appellant's submissions have produced. That partial success is to be seen in my recognition that the respondent should have a proportion of its costs, although I have not acceded to the respondent's analysis of the way that claim should be recognised.
41 Accordingly, mindful of the approach in Westgold Resources NL (supra), I would allow the appellant three-quarters of the claim for research and drafting the submission on costs.
42 I have noted the (blank) item Drawing Bill of Cost included in the Bill. I consider that no separate allowance should be made under that head, in view of the claim allowed for researching and drafting the submission as to costs, of which the Bill forms a part.
43 However, the respondent objected to the quantification of the claim in respect of professional costs at the maximum amount allowable under the scale. The objection is on the basis that the appeal was not of the most complex or serious type, for which it is said the maximum is intended. The submissions put to me that the appeal was not of that type because it involved the application of settled legal principles to the factual circumstances; the appellant's submissions ran only to seven pages, the majority of those relating to the recitation of the circumstances of the trial; the counsel who appeared at the original trial was counsel for the appellant at the appeal; and that counsel was employed by the solicitors for the appellant.
44 I consider that the appeal did indeed involve the application of settled legal principles to the factual circumstances. However, that application was one of some difficulty, in view of the complexity of the circumstances, a complexity which I explored in my judgment. That complexity included discriminating between the conduct affecting each of the three victims, notwithstanding that conduct's considerable common elements. That complexity is reflected in the grounds of appeal and in the three appeal notices. That complexity was properly addressed in the appellant's submissions. I note also that the hearing of argument in the appeal, on 11 January 2006, went from 11:30 am to 1:15 pm and from 2:20 pm to 3:55 pm.
45 In my view the maximum is the appropriate allowance in such a case: see the approach in Haynes (supra), Roberts-Smith J, at [40]. The facts that counsel for the appellant at the appeal had the advantage of
(Page 14)
- having been counsel at the trial, and was employed by the solicitors for the appellant, do not, it seems to me, mean that the maximum amount claimed was excessive.
46 I further note the claim for a taxing fee. In fact, of course, this decision as to the appellant's costs in the appeal court is, as I have explained, a fixing of costs as called for under the Costs Act. I do not consider it appropriate to award a taxing fee.
47 Accordingly, I would take off the appellant's claim for costs the amount of one quarter of the claim for researching and drafting submissions as to costs ($682), and I make no allowance for a taxing fee.
48 This leaves a total of $15,185.67.
Orders
49 Accordingly my orders would be that:
(1) The appellant be entitled to two-thirds of its costs of the appeal, such two-thirds fixed in the sum of $15,185.67;
(2) The respondent be entitled to one-third of its costs of the appeal, such one-third to be fixed following an inquiry and report by a Registrar of the Court; and
(3) The costs in the summary court on the charges in respect of which a remittal for a rehearing was ordered be determined by the court at the conclusion of any such hearing.
50 I will hear from the parties as to any matters of detail that should be addressed in the drafting of such orders.
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