Cja v RJC
[2003] WADC 128
•5 JUNE 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CJA -v- RJC [2003] WADC 128
CORAM: COMMISSIONER REYNOLDS
HEARD: 15 MAY 2003
DELIVERED : 5 JUNE 2003
FILE NO/S: CIV 69 of 2002
BETWEEN: CJA
Applicant
AND
RJC
Respondent
Catchwords:
Criminal law - Criminal injuries compensation - Power to award costs under the Criminal Injuries (Compensation) Act 1970 - Medical fee for preparation of application claimed as a disbursement
Legislation:
Criminal Injuries (Compensation) Act 1970
District Court Act 1969
Supreme Court Act 1935
Rules of the Supreme Court
Result:
Power to award costs in favour of successful applicant
Medical fee disallowed as a disbursement
Representation:
Counsel:
Applicant: Ms J Seif
Respondent: No appearance
Amicus Curiae : Ms B M Peters appeared on behalf of the Chief Executive Officer of the Department of Justice
Solicitors:
Applicant: Kott Gunning
Respondent: No appearance
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Blezard & Anor v Chief Executive Officer of the Ministry of Justice (2000) 23 SR (WA) 278
Massie v Czepulkowski & Ors, unreported; SCt of WA; Library No 1917; 6 December 1976
Re Kiernan (1979) 1 SR (WA) 286
SH v BS [2001] WADC 291
WHP v Asplin (2001) 28 SR (WA) 1
X v Y, unreported; SCt of WA; Library No 960517; 13 September 1996
Case(s) also cited:
C v BC, unreported; SCt of WA; Library No 970287; 5 June 1997
McD v Edwards, unreported; SCt of WA; Library No 970529; 10 October 1997
Patorniti v Silvestro, unreported; SCt of WA; Library No 970325; 22 May 1997
S v L, unreported; SCt of WA; Library No 970624; 20 November 1997
Sunderland v Curnack [2002] WADC 158
COMMISSIONER REYNOLDS: The applicant applied for criminal injuries compensation pursuant to the Criminal Injuries (Compensation) Act 1970 ("the Act") in respect of offences of indecent dealing committed against her by the respondent. She also applied for a certificate in relation to such compensation for a further act of indecent dealing upon her which she alleged was perpetrated by the respondent. The application was heard and determined by a Judge of this Court who made the following orders on 19 December 2002:
"1.The Respondent pay to the Applicant, out of his own property the sum of $6,000 by way of compensation for the injuries suffered by the Applicant as a consequence of the commission of the offences of which the Respondent was convicted on 1 June 2000.
2.A certificate be issued to the Applicant pursuant to section 6 of the Criminal Injuries (Compensation) Act 1970 stating that the Applicant would have been entitled to the sum of $2,000 had the Respondent been convicted of the 5th count on the indictment dated 31 May 2000.
3.The Applicant have liberty to apply in respect of costs against the Respondent."
The application before me is by the applicant who now seeks an order for costs pursuant to the leave granted by par 3 of the orders made on 19 December 2002. The solicitors for the applicant have accompanied the application with an itemised Schedule of Costs which totals $12,361.69.
The threshold issue on the application before me is whether the court has power to award costs to a successful applicant under the Act.
Section 37(1) of the Supreme Court Act 1935 ("the SC Act") provides as follows:
"37. Costs
(1)Subject to the provisions of this Act and to the Rules of Court and to the express provisions of the Local Courts Act 1904, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid."
Order 66 r 1(1) of the Supreme Court Rules ("the SC Rules") confers discretion on the court to make orders for "the costs of and incidental to all proceedings".
Section 64(3) of the District Court Act 1969 ("the DC Act") provides as follows:
"64. Costs of action or proceeding
(1)…
(2)…
(3)Subject to this Act, a District Court Judge has the same power in relation to the payment of costs by any party as a Judge of the Supreme Court has."
While there is no express or implied power in the Act to award costs in favour of a successful applicant there is also nothing in the Act that would preclude the operation of the provisions of the SC Act, the SC Rules and the DC Act to which I have referred. The Act being silent on the question of costs this Court has power to award costs to a successful applicant under the Act by virtue of the operation of such provisions in combination. By virtue of s 37(1) of the SC Act and O 66 r 1(1) of the SC Rules a Judge of the Supreme Court has power to award costs to a successful applicant under the Act. Therefore pursuant to s 37(1) of the DC Act so too does a Judge of this Court. See Massie v Czepulkowski & Ors, unreported; SCt of WA; Library No 1917; 6 December 1976; SH v BS [2001] WADC 291.
I should add that an order for costs would not be appropriate and should not be made against the Chief Executive Officer who appears as Amicus Curiae on applications for criminal injuries compensation under the Act and legislation enacted later for the same purpose. See Blezard & Anor v Chief Executive Officer of the Ministry of Justice (2000) 23 SR (WA) 278 per H H Jackson DCJ at 284.
Included in the costs sought by the applicant is the sum of $577.50 being the report fee of a psychiatrist who examined the applicant and prepared a report to support her application for compensation under the Act. Having determined that this Court does have the power to award costs in favour of the applicant the next question is whether her costs could include the psychiatrist's fee as a disbursement or at all.
The fee of a medical practitioner such as that of the psychiatrist claimed by the applicant in this case does not come within the definition of "loss" in the Act. See in Re Kiernan (1979) 1 SR (WA) 286 per Heenan J and WHP v Asplin (2001) 28 SR (WA) 1 per Hammond CJDC. The question whether such a fee could be claimed by a successful applicant under the Act by way of costs was considered by Parker J in X v Y, unreported; SCt of WA; Library No 960517; 13 September 1996. At p 12 of his judgment his Honour said:
"In the statutory context of the Act, to make a special costs order for professional medical fees incurred in obtaining or preparing expert evidence would be tantamount to allowing compensation for loss that the Act did not intend to compensate."
Applying this authority I disallow the report fee of the psychiatrist of $577.50.
In my view the applicant's application for compensation warranted and still warrants the services of solicitors.
The applicant has presented evidence that the respondent is a registered proprietor as joint tenant of the property situate at and commonly known as 6 Eltham Place, Kingsley.
For all these reasons I find that this Court has power to award the applicant the costs of her application for compensation under the Act but that such costs cannot include the psychiatrist's fee for the report prepared for the purpose of supporting her application. It being reasonable for the applicant to employ the services of solicitors to prepare her application and represent her in the proceedings before this Court and the applicant having succeeded on her application I order that the respondent pay her costs of the application provided that such costs shall not include the psychiatrist's fee of $577.50.
The amount claimed by the applicant is relatively high. That is not to say that it cannot be justified under the relevant items in the relevant scales. The amount is such that in my view it should be taxed by a Registrar or Deputy Registrar of this Court. I therefore direct that the applicant file and serve an itemised Bill of Costs on the respondent together with a notice of the time and place of taxation and that the bill be taxed by a Registrar or Deputy Registrar of this Court.
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