Haddon v Everitt on behalf of the Commissioner of Police
[2000] WASCA 53
•8 MARCH 2000
HADDON & ANOR -v- EVERITT on behalf of the Commissioner of Police [2000] WASCA 53
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 53 | |
| Case No: | SJA:1154/1999 | 16 FEBRUARY 2000 | |
| Coram: | SCOTT J | 8/03/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | CAROLE PATRICIA HADDON BRONWYN VANESSA HADDON ROBERT WILLIAM EVERITT on behalf of the Commissioner of Police |
Catchwords: | Appeal of order made under Official Prosecutions (Defendants' Costs) Act 1973 Amount in excess of scale under s 58N of Legal Practitioners' Act Claim for unsuccessful applications Claim for duplication of work resulting from using numerous solicitors Magistrate allowed costs above scale as the matter one of "complexity and importance" Definition of "costs" under s 4 Official Prosecutions (Defendants' Costs) Act 1973 Appropriate determination of a "proper cost" |
Legislation: | Justices Act 1902 Official Prosecutions (Defendants' Costs) Act 1973, s 4, s 5(5) |
Case References: | Klahn v Talbot (1995) 83 A Crim R 535 Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188 Gill v King, unreported, FCt SCt of WA; Library No 960665; 12 November 1996 Robson v Carter, unreported; SCt of WA (Wallace J); Library No 4511; 19 May 1982 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- BRONWYN VANESSA HADDON
Appellants
AND
ROBERT WILLIAM EVERITT on behalf of the Commissioner of Police
Respondent
Catchwords:
Appeal of order made under Official Prosecutions (Defendants' Costs) Act 1973 - Amount in excess of scale under s 58N of Legal Practitioners' Act - Claim for unsuccessful applications - Claim for duplication of work resulting from using numerous solicitors - Magistrate allowed costs above scale as the matter one of "complexity and importance" - Definition of "costs" under s 4 Official Prosecutions (Defendants' Costs) Act 1973 - Appropriate determination of a "proper cost"
Legislation:
Justices Act 1902
Official Prosecutions (Defendants' Costs) Act 1973, s 4, s 5(5)
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellants : In person
Respondent : Mr M Mischin
Solicitors:
Appellants : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Klahn v Talbot (1995) 83 A Crim R 535
Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188
Case(s) also cited:
Gill v King, unreported, FCt SCt of WA; Library No 960665; 12 November 1996
Robson v Carter, unreported; SCt of WA (Wallace J); Library No 4511; 19 May 1982
(Page 3)
1 SCOTT J: The two appellants were charged by complaint that between 30 September 1995 and 9 December 1996 they unlawfully stalked one Sally Louise Ponchard, with intent to cause apprehension or fear.
2 The proceedings reveal a long and chequered history, including many interlocutory applications before the matter ultimately came on for hearing in the Court of Petty Sessions in Joondalup. That hearing was conducted on 19, 20 and 21 January 1998 and on 8 April 1998. Judgment was subsequently delivered on 21 April 1998 and in that judgment each of the appellants was acquitted.
3 The appellants sought to obtain an order in their favour under the Official Prosecutions (Defendants' Costs) Act 1973 ("Official Prosecutions (Defendants' Costs) Act")for their costs in defending the complaints.
4 There was extensive argument and comprehensive submissions put forward by the appellants on the question of costs and the appellants invited the learned Magistrate to invoke the provisions of s 5(5) of the Official Prosecutions (Defendants' Costs) Act. That section relevantly provides:
"5(5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a determination under section 58W of the Legal Practitioners Act 1893, but nevertheless the court may make an order for payment of costs including an amount in excess of the amount for any item in that scale if the court is satisfied that having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs for that item is desirable."
5 The history of that section will be discussed later in these reasons. It is common ground that the appellants paid out the total sum of $19,313.83 to lawyers in the course of these proceedings.
6 In the submissions made by the appellants on costs, the accounts received and paid by them were placed before the learned Magistrate for his consideration. Some of those accounts were itemised and some were not.
7 Having heard counsel on the question of costs, his Worship took some time to consider the matter and delivered a decision on 2 August 1998. In that decision, and for reasons that I will now discuss,
(Page 4)
- his Worship allowed the appellants the total sum of $5,800 which he divided as to each appellant in the sum of $2,900.
8 In his reasons for decision on costs, his Worship detailed the various applications made by the appellants in the course of the interlocutory stages of these proceedings. His Worship also pointed out that the appellants had engaged the services of five solicitors throughout the course of the proceedings and, in addition, at one stage, used independent counsel.
9 Some of the services claimed, related to applications made by the appellants that were unsuccessful, and his Worship carefully analysed and considered each account.
10 His Worship also carefully analysed the "getting up case" component in relation to each of the solicitors instructed. It is beyond dispute that the appellants greatly increased the costs involved in these proceedings by changing their solicitors with some frequency. That involved a considerable duplication of work in that each subsequent solicitor had to take instructions and become familiar with a matter that had become by then quite complex. That involved a great deal of additional legal work and consequential expense. The submissions made by the appellants are that the OfficialProsecutions (Defendants' Costs) Act should enable them to be indemnified for their total legal costs incurred in these proceedings. They claim not only costs in relation to applications that were unsuccessful, but costs arising out of the needless duplication of legal work by reason of their frequent changes of solicitors.
11 In dealing with the question of costs in his decision, the learned Magistrate carefully analysed the steps that each solicitor had taken on behalf of the appellants. His Worship discounted the costs that related to applications that were unsuccessful and discounted other costs to the extent that getting up for trial had to be duplicated. In considering the appropriate award of costs to be made, his Worship referred to a number of authorities. In particular, he referred to Klahn v Talbot (1995) 83 A Crim R 535 where the court held that while the scale of costs applied by the Official Prosecutions (Defendants' Costs) Act was invalid, the scale could, and should be used, to indicate limits within which the discretion to award costs should be exercised. In particular, in Klahn v Talbot Franklyn J said at 547:
"The further question then arises, on what basis should the appeal court in the absence of a prescribed scale of costs
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- exercise its discretion? In my opinion, as the scale promulgated in the Gazette of 27 March 1991 has, as a matter of practice, been accepted and acted upon by both complainants and defendants, summary courts dealing with official prosecutions, appeal courts on appeal from such summary courts and by the profession generally, as appropriately indicating the limits within which the discretion to order costs should be exercised, it is appropriate that regard continue to be had to it for that purpose while recognising that it cannot bind the court in the exercise of its discretion. That discretion can only be exercised of course in respect of expenses which are 'costs' within the definition of section 4 of the Act and so properly incurred expenses in an official prosecution due and payable or paid by the defendant to another person or as court fees."
12 Similarly, in Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188, Ipp J said at 194:
"Accordingly, I consider that a magistrate, in awarding costs under s 5(5) [of the Official Prosecutions (Defendants' Costs) Act] should not merely make a general discretionary award reflecting what is 'reasonable and proper' in all the circumstances. …
The amounts reflected in the scale are substantially lower than the costs set out in the Supreme Court Costs Scale. Plainly, the intention of the legislature is that the costs awarded under the Official Prosecutions (Defendants' Costs) Act are to be lower, generally, than the costs awarded in a Supreme Court action. The court, in ordering costs under s 5(5) therefore does not have a discretion limited only by considerations of reasonableness. Even if costs are awarded in excess of the scale, regard must be had to the scale as a guideline."
13 His Worship, the trial Magistrate, referred to the relevant law and concluded:
"It would seem therefore that in an official prosecution a defendant is entitled to legal expenses, that is costs, which are properly incurred whether or not the defendant is represented on a trial by a person to whom he is indebted for those costs."
14 His Worship carefully analysed each of the accounts presented to the court by the appellants and he allowed specific items that had been
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- vouched for in the accounts presented to the court. Having taken all of those amounts into account, his Worship concluded that the proper amount payable under the Act was the total sum of $5,800 which he apportioned equally between each of the appellants. With respect to the apportionment between the two appellants, no point is made on this appeal.
15 The grounds of appeal are that:
"a it is within the inherent jurisdiction of the Supreme Court to grant leave to appeal or review a matter of substantial abuse of process, or where the learned Magistrate has acted without or in excess of jurisdiction;
b the official prosecution by the Respondent being oppressive, foredoomed to failure, and alleging an offence unknown to law was a substantial abuse of process, without or in excess of jurisdiction;
c the learned Magistrate in the conduct of an oppressive official prosecution alleging an offence unknown to law, acted without or in excess of jurisdiction not cured by verdict and Order For Costs, which Order For Costs follows the event;
d it is within the inherent jurisdiction of the Supreme Court to review a matter of substantial abuse of process and police impropriety where all legal Costs incurred by a successful Defendant in an oppressive trial are unreasonably and improperly caused by a Complaint;
e an oppressive trial foredoomed to failure clearly meets the test of 'special difficulty, complexity, or importance' contemplated by Section 5(5) of the Official Prosecutions (Defendants' Costs) Act 1973 ('the Act'), entitling a successful Defendant to a discretionary award of full Costs;
f the Order For Costs of the learned Magistrate was inadequate as the learned Magistrate misconstrued Section 5(5) of 'the Act', and erred in law in failing to properly take into account the relevant facts and law of the case in exercising a judicial discretion pursuant to Section 5(5) of 'the Act';
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- g the learned Magistrate erred in law in relying upon the Costs Scale 1991 referred to in 'the Act', which Scale is invalid pursuant to the authority to make determination for such a Scale under Section 58W of the Legal Practitioners Act 1893, and in any event does not abrogate a judicial discretion conferred by Section 5(5) of 'the Act' to award greater Costs in accordance with the particular or exceptional circumstances of a case;
h the learned Magistrate erred in law in misconstruing the meaning and effect of Sections 6(b) and 6(c) of 'the Act' in reducing the Defendants' entitlement to Costs, or erred in law in reducing the Defendants' entitlement to Costs otherwise than in accordance with Sections 6(b) and 6(c) of 'the Act';
i the learned Magistrate erred in law in misconstruing the meaning of 'all other expenses' in Item 11 of the Costs Scale 1991 referred to in 'the Act', and relied upon by the learned Magistrate;
j the learned Magistrate erred in fact and law in the particular circumstances of the case in holding that legal Costs paid by the Defendants to more than one solicitor engaged to represent them on the trial who did not do so, were not 'reasonable and proper expenses' under Item 11 of the Costs Scale 1991 referred to in 'the Act', and in failing to give effect to the right of a client to change their legal adviser at any time;
k the learned Magistrate erred in law in disentitling the Defendants to the legal Costs of unsuccessful applications ancillary to the trial, by failing to properly take into account that these applications were exceptional and of fundamental importance to the interests of justice and fair trial;
l the learned Magistrate erred in law in failing to separately determine the amount of Costs claimed by each Defendant for separate representation in the defence of an official prosecution;
m pursuant to the provisions of Section 3(2) of the 'the Act', Section 152 of the Justices Act 1902 in conferring a
(Page 8)
- general discretionary power to a Justice on dismissal of a Complaint, to make an Order For Costs against a Complainant, may prevail in the particular circumstances of the case;
- n pursuant to the provisions of Section 3(2) of 'the Act', Rules of Court Practice or statutory provisions that Costs ordinarily follow the event, may prevail in the particular circumstances of the case;
o pursuant to the provisions of Section 3(2) of 'the Act', Section 219 of the Justices Act 1902 may prevail in the particular circumstances of the case".
16 In dealing with each of those grounds, it is important to note that the learned Magistrate, whose decision is the subject of the appeal, allowed costs well above the scale because he accepted that the matter was one of complexity or importance. He said in his reasons:
"In the circumstances I conclude that the payment of greater costs than those thought to constitute the scale under the Act, before the decision in Klahn v Talbot, unreported decision of the Full Court of the Supreme Court of Western Australia and being Library No 950628, is desirable pursuant to s 5(5) of the Act."
17 The history of the Official Prosecutions (Defendants' Costs) Act is canvassed in the second reading of the Official Prosecutions (Defendants' Costs) Bill to the Assembly. In that reading, Mr T D Evans, the Attorney-General, stated at 3386 of the Hansard, Thursday, 4 October 1973:
"It was the stated policy of this Government to review the laws which prevented legal costs being recovered by successful defendants of charges laid by the Crown, including statutory authorities.
This Bill has been drafted following a report of the Law Reform Committee, as it then was, and provides for financial relief to an accused in a trial held in a Court of Petty Sessions or a …"
18 However, Mr Evans went on to say:
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- "Not all successful defendants are to be entitled to costs as prescribed, as the court may order that a particular defendant is not entitled to full or part costs in certain circumstances. …
Another example could be where a defendant did something which was unreasonable and contributed to the institution or continuation of the legal proceedings; or he had done something during the course of the proceedings which was calculated to prolong the proceedings unnecessarily or cause unnecessary expense. In that case the court has a discretion in determining its order as to costs."
19 In considering this matter, I have taken into account the submissions made by the appellants and I have taken into account the fact that in the course of defending these charges, they were involved in the payment of legal fees totalling $19,313.83. That however, cannot be the test to apply in determining what the appropriate amount is under the provisions of the Official Prosecutions (Defendants' Costs) Act. In that Act, in s 4, costs are defined to mean any expense that -
"(a) are properly incurred by a defendant in an official prosecution; and
(b) are due and payable, or paid, by the defendant to another person or as court fees."
20 The problem for the learned Magistrate, and indeed the problem for this Court, is to determine appropriately what the proper expenses in this case were. In the language of Ipp J in Washbourne v State Energy Commission, set out earlier in these reasons, the court is limited by the concept of "reasonableness" but that is not the only limitation on the court's discretion. As his Honour said, regard must be had to the scale as a guideline, and in my view that is exactly what his Worship did in considering the appellants' motion for costs.
21 It should also be mentioned that the learned trial Magistrate had the advantage of knowing from the Court of Petty Session file, each of the steps that were taken in the action, and their fate. In addition, he had an appreciation of the extent of the representation of the appellants in relation to applications that were successful and, of course, he equally had an appreciation of those applications that were unsuccessful. I entirely agree with his Worship's conclusion that where applications have been made in the interlocutory stages of a Petty Sessional prosecution and have been unsuccessful, then an award of costs under the Official Prosecutions
(Page 10)
- (Defendants' Costs) Act would not ordinarily be appropriate. In this case there were applications in relation to legal professional privilege, and there were many applications for adjournments because of the interlocutory steps that the appellants had taken. Even when the trial itself commenced, there was an unsuccessful application for an adjournment. In addition, there was an unsuccessful application that the Magistrate disqualify himself on the basis of bias.
22 In my opinion, it was quite appropriate for the learned Magistrate to discount the application for costs in the light of the manner in which the case was conducted and discount the costs by reason of the appellants' unsuccessful applications.
23 As has been stressed repeatedly in the Supreme Court, costs are always discretionary, and in this case, in my view, the learned Magistrate went to a great deal of trouble in analysing the detail of each of the accounts presented to him for consideration by the appellants. In the result, the award of $5,800 was, in my view, a generous award, bearing in mind that the majority of the expense to which the appellants were put was a result of their particular approach to the case.
24 I would add in conclusion that the appellants were effectively unrepresented at the trial despite the amount of costs which they paid.
25 I am not persuaded that any of the grounds of appeal are made out. The appeal will be dismissed.
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