Fairhead v Bathurst
[2008] WASC 209
•19 SEPTEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FAIRHEAD -v- BATHURST [2008] WASC 209
CORAM: EM HEENAN J
HEARD: 19 SEPTEMBER 2008
DELIVERED : 19 SEPTEMBER 2008
PUBLISHED : 8 OCTOBER 2008
FILE NO/S: SJA 1037 of 2008
BETWEEN: CHRISTOPHER CLARENCE FAIRHEAD
Appellant
AND
DAVID ANDREW BATHURST
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE K T FISHER
File No :BS 1430 of 2005
Catchwords:
Appeal - Dismissal of charge - Defendant entitled to costs - Application for costs in specified amount or for an order adjourning determination to chambers - Order made for costs significantly less - No reasons for reduction - No reasons for referring application for determination in chambers - Appeal allowed - Costs awarded in amount agreed by parties
Legislation:
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2006 (WA)
Result:
Appeal allowed
Costs ordered
Category: B
Representation:
Counsel:
Appellant: Mr I MacFarlane
Respondent: Ms S Markham
Solicitors:
Appellant: Ian MacFarlane
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Haynes v Hughes [2001] WASCA 169
O'Dea v Fletcher (Unreported, WASC, Library No 920666, 20 November 1992)
EM HEENAN J: This appeal, which comes before this court by leave granted by McKechnie J, is from an order made by the learned magistrate in the court sitting at Busselton on 28 April 2008 by which the appellant was awarded $5,000 for his costs following the dismissal of a charge against him. The award for costs was sought and made under the Official Prosecutions (Accused's Costs) Act1973 (WA). This appeal concerns the quantum of the costs so ordered.
The background to the matter is that the appellant was one of four persons who were jointly tried before Magistrate Mr K. Fisher in the Magistrates Court sitting in Busselton on 4 ‑ 7 September 2007. It was adjourned for closing submissions on 6 December 2007. However, closing submissions could not be heard until 27 March 2008, when detailed submissions were made by all counsel.
His Honour reserved judgment until 17 April 2008, but again, because of some problems about the availability of the court, judgment was not delivered until 28 April 2008. For reasons which his Honour then gave, the appellant was acquitted of the charge of assault occasioning bodily harm. Other defendants were acquitted of some charges and convicted of others and, in relation to the charges for which the other defendants had been acquitted, applications were made by their counsel for costs under the Official Prosecutions (Accused's Costs) Act and awards of costs were made by his Honour.
The appellant's counsel, who was not counsel who appeared at trial, was instructed to and sought costs in his client's favour under the Official Prosecutions (Accused's Costs) Act 1973 in the amount of approximately $12,200. No detailed breakdown of the costs as sought in that sum or in a different amount was then submitted to the learned magistrate, nor was any detail of costs, which might be appropriate, put forward on behalf of the unsuccessful complainant.
The learned magistrate was therefore faced with the situation where there was an application for costs in the approximate amount of $12,200, unsupported by any detailed scale or bill or other mathematical calculation, and there was no submission in any quantified amount by counsel for the prosecution as to what might be an appropriate allowance.
Counsel then appearing for the appellant submitted to his Honour that in the event that there were any issues concerning the application for costs or their quantum they should be reserved to chambers.
The submissions which are made in support of this appeal include the submissions that an award of costs to a successful accused in an official prosecution is the subject of the legislative regime contained in the Official Prosecutions (Accused's Costs) Act 1973. In support of that submission, reference is made to O'Dea v Fletcher (Unreported, WASC, Library No 920666, 20 November 1992) (Murray J) and also to Haynes v Hughes [2001] WASCA 169 [119]. The appellant also submits that subject to the Act, the successful accused is entitled to an award of costs under s 5(1) of the Act and s 2(a)(i) of the Act and that a court of summary jurisdiction is required to make an order as to the amount of the costs to be awarded under s 5(2) of the Act.
There is, however, provision in the legislation under s 6(b) and (c) that the court may order that a successful accused not recover his costs or part thereof if he has done or caused to be done, or has omitted or caused to be omitted, something (other than an act or omission the subject of the charge) which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings, or if he has done or caused to be done or has omitted or caused to be omitted something during the course of proceedings or in the conduct of the defence calculated to prolong the proceedings unnecessarily or to cause unnecessary expense.
If there is an issue concerning an entitlement to costs on the quantum of the costs, this can be adjourned to chambers under s 8. There is a detailed scale of costs contained in the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2006 (WA) to which a reference may later be made.
Unfortunately, the proceedings before the learned magistrate when the application for costs was made and dealt with were not transcribed and there is now no record for this court of them. Efforts have been made by the appellant to obtain a transcript, but the evidence, slight as it is, suggests that the relevant part of the proceedings was not effectively recorded.
As I have already said, the learned magistrate awarded the sum of $5,000 costs to the appellant which was significantly less the sum of approximately $12,200 which was being sought. This was an order made, without reference to any controversy about the quantum of the costs, or the assessment in chambers, as was a possibility.
It is unfortunate that there is no record available of his Honour's reasons for I am informed that brief oral reasons were given. However, a number of matters can be deduced from the record as I have already described it. First, and obviously, the order made plainly recognises an entitlement by the appellant to an award of costs in his favour for the proceedings in accordance with the legislation and the scale. Secondly, there is no suggestion that any factor was raised by the prosecutor before his Honour, or by his Honour himself, which might have led to a reduction or denial of an order of costs because of the conduct of the appellant in the defence of the prosecution. Thirdly, the order was made without any submissions from the present respondent as to an appropriate amount for costs and was made without regard to the request that any controversy as to the matter of costs be reserved to chambers.
In those circumstances, I have no alternative but to draw the conclusion that there were not reasons given for the reduction of the costs from the amount sought to the amount awarded nor for refusing the application to determine any controversy about costs in chambers pursuant to the legislation.
That appears to me, with all respect to his Honour, to have been an error. Whether it is regarded as an error in substance or an error in failing to give reasons for the decision, the result is the same because it entitles the appellant to succeed in this appeal and to have the order for costs in the amount of $5,000 set aside, and some provision to be made to determine, after hearing from the parties, the appropriate order for costs which should be made.
When I canvassed these issues before the parties to this appeal having had the advantage of their very helpful and detailed written submissions on these matters in advance, a number of ways of dealing with this situation were addressed in argument.
One proposition was to remit the matter to the learned magistrate with a direction to provide reasons for his Honour's decision as to costs or to provide some manner for determining the contest as to the amount of costs being sought. Another alternative was for me to allow the appeal and direct that the parties bring in a detailed statement in the form of a draft bill of costs for determination of the appropriate amount of costs which should be allowed and, if necessary, to refer the determination of that amount to a registrar of this court to report back so that any final decision as to the quantum could be made by me after further submissions.
Both of those approaches are possible means of dealing with this matter but they each have the disadvantage of prolonging what is really a relatively minor contest and of causing further expense and delay for the court and judicial time. It therefore seemed to me that if the appeal were to be allowed and the only issue of practical consequence remaining were to decide upon a procedure to allow the assessment of costs, it would be better to allow the parties an opportunity to negotiate on the footing that the appeal would be allowed and that further submissions could be heard, if no agreement was reached, as to exactly how those costs should be assessed.
Returning the matter to the learned magistrate would have given his Honour an opportunity to give more considered attention to the issue of the costs but, having regard to the fact that his Honour had not had before him any detailed submissions as to the quantum of costs for which the respondent prosecutor might have contended, and faced with an application that some form of adjudication in chambers was necessary, it seemed to me that in the course of directing the parties to bring in either an agreed figure as to costs or a more refined submission dealing with the amount in issue before me would be more efficient and expeditious.
Accordingly, I adjourned the hearing of the appeal briefly to allow the parties an opportunity to negotiate. Each of the parties, very constructively, accepted this offer and conducted what turned out to be a fruitful negotiation. On the basis that the appeal was to be allowed and that the remaining orders of the court would need only to provide for some mechanism for determining the costs, counsel for the respondent returned to the court to advise that the respondent was prepared to pay $10,800 to the appellant for the costs in the proceedings in the Magistrates Court and that figure was accepted.
The parties had also negotiated agreement that, in the event that the appeal were to be allowed, the appellant should recover his costs of the appeal and that these should be fixed at an agreed figure of $5,000. I am pleased that the parties have reached such a constructive and efficient resolution of what otherwise may have been a task which would have consumed disproportionate time and resources.
For these reasons therefore, I allow this appeal. I direct that the order made by the learned magistrate that the appellant receive $5,000 costs from the respondent for the costs of proceedings in the Busselton Magistrates Court in September 2007, as continued in March and April of this year, be set aside and that, in lieu thereof, it be ordered that the respondent should pay the appellant $10,800 for costs of the proceedings in the Magistrates Court inclusive of disbursements.
I further order that the respondent should pay the appellant the costs of this appeal including the application for leave to appeal and all reserved costs if any, fixed at the sum of $5,000.