Gough v Rankin

[2014] WASC 148 (S)

GOUGH -v- RANKIN [2014] WASC 148 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 148 (S)
Case No:	SJA:1073/2013	Heard:	30 APRIL 2014
Coram:	LE MIERE J	Delivered:	6/08/14
No of pages:	5	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	GUY BRYAN GOUGH JAMES PATTERSON RANKIN
Catchwords:	Practice and procedure Costs Turns on own facts
Legislation:	Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Case References:	Gough v Rankin [2014] WASC 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : GOUGH -v- RANKIN [2014] WASC 148 (S) CORAM : LE MIERE J HEARD : 30 APRIL 2014 DELIVERED : 6 AUGUST 2014 FILE NO/S : SJA 1073 of 2013 BETWEEN : GUY BRYAN GOUGH

Appellant

AND

JAMES PATTERSON RANKIN
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L J ATKINS

File No : MM 4 of 2013

Catchwords:

Practice and procedure - Costs - Turns on own facts

Legislation:
Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Appellant : Mr P J Marsh
Respondent : Mr J F Bennett

Solicitors:

Appellant : HFM Legal
Respondent : State Solicitor for Western Australia

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

Gough v Rankin [2014] WASC 148



1 LE MIERE J: On 30 April 2014 I delivered reasons for judgment in which I determined that the appeal should be allowed, the conviction should be set aside and a verdict of acquittal substituted: Gough v Rankin [2014] WASC 148.

Magistrates Court costs

2 The appellant is entitled to his costs in the Magistrates Court. The amount of costs must be in accordance with the scale fixed by the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA). The appellant claims costs in the sum of $6,625. The respondent agrees that that sum is reasonable. The respondent should pay the appellant's costs of his trial in the Magistrates Court fixed in the sum of $6,625.

Appeal costs

3 The appellant claims costs in the sum of $8,411, in accordance with table B of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) calculated as follows:

23(a)	Single Judge Appeal	Prepare appeal notice, proposed grounds of appeal and service certificate.	[$]319.00
23(f)	Preparation of case appeal for hearing	Preparation of case for appeal including drafting outline of submissions and authorities and review of respondent's documents.	$1,595.00
34	Disbursements	Counsel's actual fee on appeal hearing including preparation (item 23(g)) and attendance on reserved decision (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders (item 23(1)).	$6,497.00
TOTAL	$8,411.00

The respondent submits that the amount claimed is unreasonable for a number of reasons.

4 The disbursements claimed consist of fees rendered by counsel. That is not a disbursement for the purposes of Table B. Counsel's fee is item 23(g) of Table B. The fee rendered by counsel includes an amount of $451 for drawing the notice of appeal and grounds of appeal. That is the amount allowed under the scale for the appeal notice. The appellant may only claim that sum once.

5 The respondent says there is duplication in the appellant's claim of $1,595 for 'preparation of case appeal for hearing' and fees rendered by counsel for advice on obtaining transcript ($150) and attending hearing of appeal and preparation ($5,445). The sum of $1,595 for 'preparation of case appeal for hearing' is for work described as 'preparation of case for appeal including drafting outline of submissions and authorities and review of respondent's documents'. It is not clear whether that is for work done by the appellant's solicitor or for work done partly by the appellant's solicitor and partly by counsel. Any work done by counsel in preparing for the hearing is properly part of the counsel fee which is charged separately. The amount of $1,595 is excessive because the appellant was represented by the same solicitors and counsel at trial and on appeal, the issue on which the appellant succeeded on appeal was identified by counsel at trial and the appellant was represented by counsel on the appeal. I would allow an amount of $1,276, being four hours at the rate of a junior practitioner.

6 The amount charged by counsel is $6,497. I deduct from that amount $451 for 'drawn notice of appeal and grounds of appeal', which I have allowed under item 23(a) of the scale. I would also deduct $150 for 'advice on obtaining transcript' which is part of item 23(f) - preparation of case appeal for hearing. The counsel fee includes $451 for 'drawn minute of proposed orders and attend delivery of reserved decision'. That amount is properly allowable under item 23(l). I would allow $5,445 for counsel fee on hearing (including preparation) and $451 for attending on reserved decision (including drawing a minute of proposed orders).

7 After making those adjustments, the appellant's costs are as follows:

Appeal notice	$451
Preparation of case appeal for hearing	$1,276
Counsel fee on hearing (including preparation)	$5,445
Attending on reserved decision (including drawing minute of proposed orders)	$451
Total	$7,623

8 The respondent further says that the appellant's costs should be reduced because the appellant raised issues on which it failed. The appeal was originally commenced with six appeal grounds. One week prior to the hearing the appellant notified the respondent that those grounds would be abandoned and replaced by a new ground of appeal. The counsel fee should be reduced because the fee rendered by counsel was for work including work on the abandoned grounds of appeal. The respondent incurred costs in considering and responding to the abandoned grounds of appeal. Because of the late amendment to the grounds many of the costs incurred by the respondent were thrown away. The respondent estimates costs thrown away to be in the order of $1,500 to $2,500. The respondent says that any award of costs to the appellant should be reduced by a like amount. I will reduce the costs payable to the appellant to $6,000 to take account of those issues on which the appellant was not successful, that is the abandoned appeal grounds.

Conclusion

9 The respondent should pay the appellant $6,625 in respect of the costs of the trial in the Magistrates Court and $6,000 in respect of the appeal.