Fairhead v Bathurst - [2008] WASC 209

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fairhead v Bathurst

Details

AGLC: Fairhead v Bathurst [2008] WASC 209
Case: [2008] WASC 209
Decision Date: 19 SEPTEMBER 2008

CaseChat Overview and Summary

Fairhead v Bathurst was a matter heard before the court where the defendant sought a review of a previous decision regarding the dismissal of a charge against them. The court was asked to determine whether the defendant was entitled to costs and, if so, in what amount. This was an appeal against the decision made by a lower court, which had ordered costs but at an amount significantly less than what the defendant had requested. The defendant's application for costs was in a specified amount, or alternatively for an order to adjourn the determination to chambers. However, the lower court did not provide reasons for reducing the amount of costs awarded or for referring the application for determination in chambers. The defendant appealed, arguing that the lower court's decision was flawed due to the lack of reasons provided.

The court found that the lower court's decision was indeed flawed because it did not provide any reasons for the reduction of the costs or for referring the application for determination in chambers. The court held that the lower court had an obligation to provide reasons for its decisions, and the failure to do so rendered the decision unjustifiable and thus liable to be set aside. The court further found that the defendant was entitled to costs, and that the amount should be determined by agreement between the parties. The appeal was allowed, and the matter was remitted back to the lower court for the determination of the costs in accordance with the agreement of the parties.

The court's reasoning was based on the principle that a decision-maker must provide reasons for their decisions, particularly when those decisions involve the exercise of discretion. The lower court's failure to provide reasons meant that the defendant was not able to understand or challenge the decision, which was a breach of the principle of natural justice. The court held that the lower court's decision was therefore invalid, and that the defendant was entitled to costs. The court further held that the amount of costs should be determined by agreement between the parties, as this was the most efficient and cost-effective way of resolving the matter. The appeal was allowed, and the matter was remitted back to the lower court for the determination of the costs in accordance with the agreement of the parties.

The final orders made by the court were that the appeal was allowed, and the matter was remitted back to the lower court for the determination of the costs in accordance with the agreement of the parties. The court did not make any order regarding costs in relation to the appeal itself. The defendant was therefore entitled to costs, but the amount of those costs was to be determined by agreement between the parties. This outcome reflected the court's view that the lower court's decision was flawed due to the lack of reasons provided, and that the matter should be resolved in a manner that was efficient and cost-effective for both parties.

Orders

Orders of the court

Appeal allowed

Costs ordered

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.