Denham v Di Gregorio
[2016] WASC 32 (S)
•26 FEBRUARY 2016
DENHAM -v- DI GREGORIO [2016] WASC 32 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 32 (S) | |
| Case No: | SJA:1045/2015 | 26 FEBRUARY 2016 | |
| Coram: | MARTINO J | 26/02/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded to successful respondent | ||
| D | |||
| PDF Version |
| Parties: | TIMOTHY KENNETH DENHAM GIUSEPPE DI GREGORIO |
Catchwords: | Practice and procedure Costs Criminal appeal Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 Criminal Procedure Rules 2005 (WA, r 61 |
Case References: | Brookvista Pty Ltd v Meloni [2009] WASCA 180 Denham v Di Gregorio [2016] WASC 32 Wilson v McDonald [2009] WASCA 39 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GIUSEPPE DI GREGORIO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L ATKINS
File No : PE 118697 of 2014
Catchwords:
Practice and procedure - Costs - Criminal appeal - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Criminal Procedure Rules 2005 (WA, r 61
Result:
Costs awarded to successful respondent
Category: D
Representation:
Counsel:
Appellant : No appearance
Respondent : Mr T E Pontre
Solicitors:
Appellant : No appearance
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Denham v Di Gregorio [2016] WASC 32
Wilson v McDonald [2009] WASCA 39 (S)
1 MARTINO J: On 5 February 2016 I dismissed Mr Denham's appeal.1 Upon the delivery of my decision the respondent applied for an order that Mr Denham pay the costs of the appeal. As Mr Denham had left the court by that time I was not able to hear the application, but informed counsel for the respondent that the respondent could apply for a costs order on notice to Mr Denham.
2 The respondent now makes that application having given notice to Mr Denham. Mr Denham did not appear today. Counsel for the respondent handed to me an affidavit made by him on 24 February 2016.
3 On 10 February 2016 the State Solicitor's Office sent to Mr Denham a copy of its letter to my Associate dated 10 February 2016 requesting that the appeal be relisted to determine the question of costs and a copy of the respondent's outline of costs submissions and list of authorities.
4 On 23 February 2016 the State Solicitor's Office sent to Mr Denham by registered post and by email to the email address specified in his appeal notice a letter informing him that the costs application was to be heard today at 9.15 am.
5 This morning I have stood the matter down, and on the resumption of the matter, counsel for the respondent has informed me that he has made inquiry of the Australia Post website using the number provided by Australia Post when the letter was sent by registered post. The search showed that the letter was delivered on Wednesday, 24 February 2016.
6 I have also checked the court file and I see that on 23 February 2016 my Associate sent an email to Mr Denham at the email address specified in his appeal notice informing him that the matter was listed at 9.15 am today. I have been informed by counsel for the respondent and my Associate that there has been no response from Mr Denham.
7 Rule 61(2) of the Criminal Procedure Rules 2005 (WA) provides that:
If a party who has been notified of a hearing does not attend the hearing before a judge, the judge may proceed in the party's absence.
8 I am satisfied that Mr Denham has been notified of this hearing and I am satisfied that it is appropriate to proceed in his absence.
9 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) gives me power to make an order as to the costs of the appeal. The Act confers a general and unconstrained discretion with respect to costs. That discretion is to be exercised by reference to all relevant circumstances including any relevant aspect of the public interest.2
10 The circumstances that I consider to be relevant to the exercise of my discretion as to costs are: (1) Mr Denham was not successful in his appeal; (2) the single ground of appeal involved a question of fact; and (3) the appeal did not involve any matter of public interest. Having regard to those circumstances I consider that the appropriate exercise of my discretion as to costs is to order that Mr Denham pay the costs of the appeal.
11 The respondent submits that I should fix the amount of costs. I do have the power to fix those costs. The advantage of my doing so is that it avoids additional expense and delay. However, I should only do so if I can fix the costs fairly. That means I must have available to me sufficient material to be confident that I can arrive at an appropriate sum. If I do have sufficient material then it is not necessary to subject the costs to the detailed scrutiny often applied in taxation of costs. It is appropriate instead to apply a much broader brush than would be applied on a taxation.3
12 The respondent had provided a detailed bill of costs. With the benefit of the bill of costs and my knowledge of the appeal from my hearing of it I am satisfied that I do have sufficient material to be confident that I can arrive at an appropriate sum for the respondent's costs.
13 The respondent's bill of costs includes a claim for three hours' preparation of instructing solicitor at $350 an hour and a claim for 25 hours at $270 an hour for counsel fee. The bill of costs states that two counsel handled the brief. Collectively, they have done 50 hours work but the claim was reduced to 25 hours to avoid claiming work that was duplicated.
14 I bear in mind that Mr Denham was given leave to amend his grounds of appeal and that the respondent was required to consider the affidavit that Mr Denham filed and to file two affidavits. The affidavits related to the records of the Department of Transport and transcripts of hearings in the Magistrates Court. I also bear in mind that the appeal hearing occupied slightly more than one hour and that the single ground of appeal involved a question of fact.
15 In the circumstances, I do not consider that it is appropriate to allow the full amount of time claimed by the respondent in the bill of costs. I consider that a fair allowance for the costs of the appeal is $2,500 and I fix the respondent's costs in that sum.
1Denham v Di Gregorio [2016] WASC 32.
2Wilson v McDonald [2009] WASCA 39 (S) [10] (Martin CJ).
3Brookvista Pty Ltd v Meloni [2009] WASCA 180, 26 - 27 (Newnes JA).
0
3
2