Director General NSW Department of Agriculture v Temmingh

[2003] NSWSC 598

CITATION:	Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 598
HEARING DATE(S):	27 June 2003
JUDGMENT DATE:	7 July 2003
JUDGMENT OF:	Simpson J
DECISION:	Parties to put further relevant material before the court.
CATCHWORDS:	costs
LEGISLATION CITED:	Supreme Court (Summary Jurisdiction) Act 1967 (NSW) Stock Medicines Act 1989 (NSW)
CASES CITED:	Director General NSW Deparmtent of Agriculture v Temmingh [2003] NSWSC 247, unreported, 15 April 2003
PARTIES :	Director General NSW Department of Agriculture - Plaintiff Sven Arne Temmingh - Defendant
FILE NUMBER(S):	SC 10470/02
COUNSEL:	M O'Brien - Prosecutor
SOLICITORS:	IV Knight - Prosecutor P Ash - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Monday 7 July 2003

10470/02 DIRECTOR GENERAL NSW DEPARTMENT OF AGRICULTURE v Sven Arne TEMMINGH

JUDGMENT (RE: COSTS)

1 HER HONOUR: The defendant was prosecuted, under the Supreme Court (Summary Jurisdiction) Act 1967 (the “Summary Jurisdiction Act”), in respect of two counts of contravening the Stock Medicines Act 1989. He entered a plea of guilty to each charge.

2 On 15 April 2003, having heard evidence and argument, I delivered judgment in which I announced the penalties I proposed to impose: Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 247. I indicated that, on the prosecutor’s application, I proposed to make an order that the defendant pay the costs of the prosecution. S14 of the Summary Jurisdiction Act provides as follows:

“(1) Where a Judge:
(a) convicts any person of an offence punishable in the summary jurisdiction of the Court;
(b) makes an order dismissing the charge for any such offence; or
(c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,
the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, such costs as to the Judge seem just and reasonable.


(2) The amount so ordered to be paid for costs shall in all cases be specified in the conviction or order.

(3) Subsection (1) does not empower the Judge to order costs to be paid in proceedings for an offence referred to in section 475A (1) of the Crimes Act 1900. ”

3 There being then no evidence before me on which to make an assessment of the quantum of costs, and having regard to the requirement that the court specify the quantum and do so “in the conviction”, I refrained from making final orders.

4 The matter was re-listed to enable the parties to put before me any further material relevant to the determination of the amount of costs that is just and reasonable.

5 The prosecutor furnished me with a detailed bill of costs, totalling $44,132.95. He claimed an order in that sum.

6 The defendant takes issue with certain individual items, and with the total sum claimed.

the individual items

7 The individual items which the defendant contests fall into two categories:

(i) Costs incurred in the engagement of a counsel in respect of certain interlocutory proceedings, who was not the counsel who appeared in the main proceedings;

(ii) costs incurred in the calling of evidence, by video link, of a witness, Mr Kevin Connolly.

(i) counsel’s fees

8 The only evidence as to this is a memorandum of fees due to a barrister, in the sum (including GST) of $2,145.00. This memorandum was rendered to the prosecutor by a barrister who was not the barrister who appeared at the final hearing. The evidence showed that the counsel who appeared at the final hearing had, in 2001 and 2002, undertaken extensive preparatory work, and had appeared on a number of occasions when the matter had been before the court on interlocutory hearings. The memorandum itemises the claim as for a one hour conference, and four hours’ perusing affidavits, at $150 per hour, and a brief on hearing, before Whealy J, in the sum of $1,200.00. No argument was raised as to the reasonableness of the hourly rate, or the brief fee. The question that was raised concerned only the reasonableness of briefing a counsel other than a counsel who had, so it seemed, held the primary brief for some time.

9 Although there was no evidence to this effect, I was told that the hearing before Whealy J for which the second barrister had been briefed, involved an application by the prosecutor for an order that the evidence of Mr Connolly, who was by then living in China, be taken by video link.

10 No explanation was offered for the change in counsel. However, it is common knowledge that counsel’s commitments on occasions preclude their providing continuous representation, and the exigencies of litigation frequently require that a counsel, other than counsel holding the primary brief, pick up the reins in respect of some discrete application or other aspect of the matter. I do not think it can be said that retaining a different barrister for the video link application was not reasonable, or that the costs associated with that were not just or reasonable. I am satisfied that it is just and reasonable to allow the fees paid to the second counsel.

(ii) costs of video link

11 It is necessary to return to the subject of Mr Connolly’s evidence, to which I adverted in the judgment of 15 April 2003 at [28] – [29]. As I there made plain, calling Mr Connolly as a witness was misconceived. There was no issue between the parties to which his evidence was relevant. That would, prima facie, result in the disallowance of the costs claimed in respect of his evidence. I have, however, considered whether any conduct of the defendant could be said to have caused the prosecutor to take the step of calling him as a witness. True it is that I referred, in the judgment, to a misunderstanding between legal representatives, which, on one view, may have had its origin on the defendant’s side. But that was largely speculative, and I made no finding of fact to that effect. The evidence is insufficient to enable such a finding of fact to be made. The onus lies upon the prosecutor to establish his entitlement to the costs claimed, that is, to establish that the costs claimed are just and reasonable. He has failed to do so in relation to the costs associated with Mr Connolly’s evidence and I will not allow those sums. This is not inconsistent with the decision to allow the costs of the application before Whealy J for video link evidence. That, I assume, was done at a stage in the proceedings when the defendant had not indicated his intention to plead guilty. Mr Connolly would, had the prosecution been contested, have been a necessary witness.

12 I am not in a position, on the material before me, to delineate which of the many items catalogued in the bill of costs, relate to the calling of Mr Connolly and regrettably, it will be necessary for the parties, yet again, to furnish me with adequate material.

just and reasonable costs

13 The defendant has also challenged the overall quantum of costs claimed on a broader basis – that, in global terms, it would not be just and reasonable to make an order of the magnitude claimed. In written submissions, the defendant’s solicitor set out eight separate arguments in support of the challenge. These included the assertion that the defendant was frank in his interviews with investigating officers, something I found in his favour in the judgment; the plea of guilty; the quantum of the fines I specified would be imposed; the decision of the prosecutor to bring proceedings in the summary jurisdiction of this court, notwithstanding that it would have possible to prosecute the proceedings in the Local Court; the evidence given by the defendant that he was out of pocket in the sum of thirty or forty thousand dollars by reason of his participation in the events giving rise to the charges; the prospect that the defendant will face disciplinary proceedings by his professional body, putting himself at risk of further financial penalty; the costs incurred by the defendant and his defence, including retaining senior counsel for part of the proceedings; that the defendant is an individual and not a corporation.

14 In addition it was argued that the award of costs in criminal proceedings is an exception to the usual practice.

15 I am satisfied that none of these matters is relevant to the determination of whether the costs claimed by the prosecutor are just and reasonable. I accept that it is unusual, in criminal proceedings, for a defendant to be required to pay the costs of the prosecution. However, it is not unique, and, as the Summary Jurisdiction Act makes specific provision for that to happen, I cannot take the unusual nature of the jurisdiction into account. An award of costs is not intended as a punishment. It is, rather, intended as some indemnification of the successful party in respect to the expenditure incurred in bringing the proceedings, which, by the results, are shown to have been justified. The quantification of costs to be ordered is not, and cannot be, mitigated by reference to matters of the kind relevant to the mitigation of the penalty imposed.

16 I propose to make an order that the defendant pay the prosecutor’s costs as claimed other than those costs incurred in relation to the calling of Mr Connolly as a witness. I should indicate, for the benefit of the parties, that, in my view, any costs associated with the calling of that evidence incurred after the defendant signified his intention to enter pleas of guilty, and the prosecutor signified his intention to accept the pleas offered in full satisfaction of the summons, are those to be disallowed.

17 I will give the parties one last opportunity to put the relevant material before me.

**********

Last Modified: 07/16/2003