Fewster v Briggs - [2000] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FEWSTER -v- BRIGGS [2000] WASCA 36

CORAM: TEMPLEMAN J

HEARD: 11 FEBRUARY 2000

DELIVERED : 11 FEBRUARY 2000

FILE NO/S: SJA 1102 of 1999

BETWEEN: STUART DAVID FEWSTER
Appellant
AND
SIMON PETER BRIGGS
Respondent

Catchwords:

Practice and procedure Western Australia - Costs - Application for costs under the Official Prosecutions (Defendants Costs) Act - Degree to which guidance can be taken from the 1991 costs scale - Whether applicant disentitled to an award of costs under s 6B of the Official Prosecutions Act - Whether a plea of guilty can be considered to be an unreasonable act in the context of s 6B which is capable of disentitling the appellant to his costs - Whether the appellant's plea of guilty was unreasonable in the circumstances

Legislation:

Official Prosecutions (Defendants Costs) Act 1973

Result:

Costs of $1800 fixed and certificate under s 9 Official Prosecutions (Defendants Costs) Act 1973 ordered

Representation:

Counsel:

Appellant: Mr S G Scott
Respondent: Ms S L Melvold

Solicitors:

Appellant: Stables Scott
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

TEMPLEMAN J: This matter was heard in November of last year and the appeal was allowed leaving over the question of costs, which I adjourned in the hope that the parties might come to some agreement, as far as they could. I accepted at the time, as I accept now, that the Crown is not in a position to consent to costs which are sought under the Official Prosecutions (Defendants Costs) Act but is only able to give an indication of what may or may not be appropriate in the circumstances.
The appellant's costs in total have amounted to $4450. It is accepted by Mr Scott that not all of that can be claimed. There are two reasons. One is that until 1 October of last year there was no scale under the Official Prosecutions (Defendants Costs) Act. A scale which had been prepared in 1991 had been held subsequently to be of no force but it was, nevertheless, used by way of guidance by the courts. Under that scale the appellant would have been entitled to $790 for this matter. Under the new scale he would have been entitled to a maximum of $4600. That is, of course, the maximum level which would have been reserved for more complicated cases than this.
It is submitted by Ms Johnston, who appears today for the respondent, that in any event there should be at least a reduction in the appellant's entitlement to costs if they are not to be revoked altogether. Ms Johnston relies on s 6B of the Official Prosecutions (Defendants Costs) Act which provides that a court may order that a successful defendant is not entitled to his costs or part of those costs 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".
Ms Johnston says that the appellant's plea of guilty, which he subsequently sought to retract, was something that was unreasonable in the circumstances and which, of course, contributed to the institution of these proceedings.
Having refreshed my memory from my judgment, I am satisfied that the reason for the appeal was a combination of circumstances. It was a combination of the fact that the appellant was a young man who had not previously been before the Court, who was unrepresented, who was told as a matter of some surprise to him at the hearing that he might go to prison for the offence with the result that, as he put it in his affidavit, he could not think straight.
The situation was compounded by the way in which the police interview had been conducted. As I stressed in my earlier reasons and as I emphasise now, that is not to direct any criticism to the police officers concerned. But the effect of the interview was to impress on the appellant, I think, that he was guilty of the offence. Then there was the way in which the matter was handled by the justices. Again, I am not being unduly critical of them for failing to pick up the point that there may have been a defence of self-defence. In all the circumstances, including the plea of guilty, I can quite understand the way the matter unfolded.
Taking the situation as a whole, I think that to a very large degree it was the system which operated in a particular way to produce the result which led to the appeal. In those circumstances I am not persuaded that I should revoke or reduce the appellant's entitlement. Saying that, I bear in mind, of course, that the appellant will not recover all that he is being charged in any event, where the bill has not been taxed, as I understand it. Of course the appellant has a right to have it taxed if he so desires.
The bill discloses that the work, which was carried out after the new scale came into force, was principally the attendance at the Supreme Court and the preparation of submissions. That amounted to some $1,040-odd and then there is an additional amount involving the drafting of the order.
I should say that it is submitted to me also by Ms Johnston that under s 6C of the Official Prosecutions (Defendants Costs) Act I should disallow costs of amended grounds of appeal and submissions because they did not add anything to the original materials. I am not persuaded that that is the case, particularly having regard to the fact that not all the costs will be recovered by any means.
I should also say that my conclusion in relation to the failure of the system in this case also disposes of Ms Johnston's submission that public policy considerations should militate against the award of costs on the basis that a person who pleads guilty and then changes his mind should not be permitted to recover costs. Public policy considerations, I think, suggest that if there has been a failure of the system in a particular way then the person affected by that failure, even though he may have contributed to it, should not be deprived of his costs unless his contribution has been a very substantial one, which in this case it was not.
Returning to the costs claimed, something of the order of, should we say $1100 is post the coming into effect of the new scale and therefore something of the order of $3300 was before. Had the new scale not come into force then I have no doubt that the appellant would have been awarded more than $790 which was the 1991 starting point. It has certainly been my practice to increase that amount bearing in mind rising costs since then.
The reality is, I think, that under the old scale, if I can call it that, the appellant would have probably been awarded something of the order of $1000 and under the new scale, in a matter which went for, I think, something like half a day - it was not unduly complicated - he would perhaps have been awarded $2000. I think therefore, making some apportionment and taking all the circumstances into account, a figure of $1800 would be appropriate in this case.
I am invited by Mr Scott to fix the costs myself rather than remit the matter to a registrar. That is a course which would have added unduly to the costs and expense. Had I remitted it, then the Crown would not have wished to appear in any event, Ms Johnston being content that I should have directed a registrar to take account of considerations which I have myself taken into account in reaching this figure. In those circumstances I will fix the costs at $1800 and I will order a certificate in that amount pursuant to s 9 of the Official Prosecutions (Defendants Costs) Act 1973.