Haddon v Robert William Everitt on behalf of the Commissioner of Police
[2000] WASCA 350
•15 NOVEMBER 2000
HADDON & ANOR -v- ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE [2000] WASCA 350
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 350 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1154/1999 | 19 SEPTEMBER 2000 | |
| Coram: | MALCOLM CJ PIDGEON J MILLER J | 15/11/00 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted in relation to grounds (a), (f), (g), (j), (k), (l), (m) but otherwise refused | ||
| PDF Version |
| Parties: | CAROLE PATRICIA HADDON BRONWYN VANESSA HADDON ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE |
Catchwords: | Practice and procedure Leave to appeal to Full Court Principles Turns on own facts |
Legislation: | Criminal Code, s 7(d), s 8, s 338D(1)(c), s 338E, s 689(1) Justices Act 1902, Pt VII, s 152, s 187(1), s 189, s 219 Legal Practitioners Act 1893, s 58W Official Prosecutions (Defendants Costs) Act 1973, s 3(2), s 5(5), s 6(b), s 6(c) |
Case References: | Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Klahn v Talbot (1995) 83 A Crim R 535 Rogers v R (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HADDON & ANOR -v- ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE [2000] WASCA 350 CORAM : MALCOLM CJ
- PIDGEON J
MILLER J
- BRONWYN VANESSA HADDON
Appellants (Defendants)
AND
ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE
Respondent (Complainant)
Catchwords:
Practice and procedure - Leave to appeal to Full Court - Principles - Turns on own facts
Legislation:
Criminal Code, s 7(d), s 8, s 338D(1)(c), s 338E, s 689(1)
Justices Act 1902, Pt VII, s 152, s 187(1), s 189, s 219
Legal Practitioners Act 1893, s 58W
Official Prosecutions (Defendants Costs) Act 1973, s 3(2), s 5(5), s 6(b), s 6(c)
(Page 2)
Result:
Leave to appeal granted in relation to grounds (a), (f), (g), (j), (k), (l), (m) but otherwise refused
Representation:
Counsel:
Appellants (Defendants) : In person
Respondent (Complainant) : Ms C J Thatcher
Solicitors:
Appellants (Defendants) : In person
Respondent (Complainant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Klahn v Talbot (1995) 83 A Crim R 535
Rogers v R (1994) 181 CLR 251
Walton v Gardiner (1993) 177 CLR 378
Case(s) also cited:
Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188
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1 MALCOLM CJ: This was an application for leave to appeal from an order of Scott J dated 8 March 2000 by which the learned Judge dismissed an appeal by the appellants from the quantum of a costs order made in their favour in the Court of Petty Sessions at Joondalup. At the conclusion of the argument on 19 September 2000 the Court granted the appellants leave to appeal against the order of Scott J on grounds (a), (f), (g), (j), (k), (l) and (m). Leave was refused in respect of the remaining grounds.
2 It was also ordered that the costs of the application be costs in the appeal. The Court then indicated that the reasons for the making of those orders would be published later.
3 I have had the benefit of reading in draft the reasons to be published by Miller J with which I am entirely in agreement. There is nothing I wish to add.
4 PIDGEON J: I have read the reasons to be published by Miller J. I agree with those reasons.
5 MILLER J: The appellants sought the leave of this Court to appeal from the decision of Scott J delivered on 8 March 2000 in which his Honour dismissed the appeal of the appellants from the quantum of a costs order made in their favour in the Court of Petty Sessions at Joondalup. They had been acquitted in that court on complaints which alleged that they had unlawfully stalked one Sally Louise Ponchard with intent to cause apprehension or fear. At the conclusion of the argument on 19 September 2000 the Court granted the appellants leave to appeal from the decision of Scott J refusing leave and granted them such leave on grounds (a), (f), (g), (j), (k), (l) and (m). Leave was refused in respect of grounds (b), (c), (d), (e), (h), (i), (n), (o) and (p). It was ordered that the costs of the application for leave be costs in this appeal. It was then indicated that the reasons for the making of those orders would be published later.
6 The proceedings have a long history. The appellants were charged by identical complaints made 9 December 1996 in the Court of Petty Sessions at Joondalup that between 30 September 1995 and 9 December 1996 at Gnangara they had each of them unlawfully stalked Sally Louise Ponchard with intent to cause apprehension of fear, contrary to the provisions of s 338D(1)(c) of the Criminal Code. There was also a complaint made the same day in the Court of Petty Sessions at Joondalup that between 30 September 1995 and 9 December 1996 at Gnangara
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- Carole Patricia Haddon unlawfully stalked Sally Louise Ponchard with intent to cause apprehension or fear, contrary to the provisions of s 338D(1)(c) of the Criminal Code. That complaint was ultimately dismissed in the Court of Petty Sessions at Joondalup. No evidence was ever adduced before the court in relation to it, and although the prosecutor sought to withdraw it at the conclusion of the hearing of the charges which had been preferred jointly against the appellants, he was ultimately forced to inform the court that no evidence would be adduced on the complaint and the learned Magistrate thereupon dismissed it.
7 The appellants sought before this Court to contend that there had been a miscarriage of justice occasioned by the fact that the individual complaint against Carole Patricia Haddon had remained in existence until after the conclusion of the other two complaints. They sought to ascribe sinister motives to the Crown in relation thereto, but, as was explained to the appellants during the hearing before this Court, the way in which the matter was dealt with was quite regular. On the face of it, it would seem that although Carole Patricia Haddon was first charged individually, on the same day the complainant decided that both she and Bronwyn Vanessa Haddon would be jointly charged. Thus there were three charges in existence, only two which proceeded to trial.
8 The proceedings in the Court of Petty Sessions at Joondalup were described by Scott J as having "a long and chequered history, including many interlocutory applications before the matter ultimately came on for hearing in the Court of Petty Sessions … on 19, 20 and 21 January 1998 and on 8 April 1998". The learned Magistrate who presided at the hearing delivered extensive written reasons on 21 April 1998 in which he concluded that the appellants were not guilty of the charge they each faced.
9 It appears from the learned Magistrate's reasons that the case faced by the appellants was that they had stalked Mrs Ponchard by appearing at her residence and by telephoning her. Section 338E of the Criminal Code provides that for the purposes of s 338D a person stalks another person by (inter alia) "persistently following or telephoning that person". According to Mrs Ponchard, Carole Haddon accosted her at her house on 16 October 1995 after having earlier telephoned her that day. She accused Mrs Ponchard of having an affair with her husband and expressed concern that as he had sexually molested her children, the children of Mrs Ponchard were in danger. Mrs Ponchard denied that she had any relationship with Mr Haddon, but it appears that Carole Haddon was insistent about the matter and, in the course of discussion, made reference
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- to her daughter Bronwyn having been at Mrs Ponchard's residence earlier that day. There was evidence that there had in fact been a woman in the driveway of the residence on that day when Mr Ponchard had left for work.
10 Mrs Ponchard's evidence included testimony that during October 1995 she received many telephone calls which, when answered, were not replied to. In April 1996 there were further calls and these were recorded by her. In one such call Mrs Ponchard claimed to have recognised the voice of Carole Haddon who said a number of things which Mrs Ponchard was unable to understand, save that the words "South Africa" were used. On 29 July there was a telephone call in which Mrs Ponchard was told to "watch Oprah - Channel 10 now" and upon turning on the television Mrs Ponchard discovered that there was an Oprah Winfrey television programme dealing with paedophile activity and the abduction and harming of children. She thereafter arranged for Telstra to trace unwanted telephone calls.
11 In November 1996 Mrs Ponchard recognised Carole Haddon near the entrance to the school attended by her children. Mrs Haddon allegedly waved to her and sounded the horn of her vehicle, but Mrs Ponchard refused to speak with her. Thereafter she received no further telephone calls and had no further contact with either Bronwyn or Carole Haddon.
12 Mr Ponchard testified that he had received a number of telephone calls in August - September 1995 which, upon answer, revealed nobody to be at the other end. He gave evidence of leaving home one morning to go to work and observing a young woman in the driveway of the house. This woman he identified as Bronwyn Haddon. A Sergeant Letts testified that as a result of matters reported to him he visited Carole Haddon's residence on 16 October 1995 and there advised her of a complaint he had received from Mrs Ponchard. Carole Haddon told him that she had attended at Mrs Ponchard's residence and that Mrs Ponchard was having an affair with her husband. She said that she wished to see what Mrs Ponchard looked like and she advised also that her daughter had been to see the lady. She expressed concern about the welfare of Mrs Ponchard's children given that Mrs Ponchard was having an affair with her husband.
13 There was evidence from an employee of Telstra to the effect that two unwanted calls received by Mrs Ponchard (20 May and 29 July 1996) came from a telephone service at Parliament House, West Perth, where Bronwyn Haddon was employed as a research assistant for a member of parliament. The only other evidence of note was that of Ms Alison Fan, a
(Page 6)
- television journalist, who testified that on or around 14 January 1998 she spoke to Carole and Bronwyn Haddon and Bronwyn Haddon told her that she had made telephone calls to Mrs Ponchard from Parliament House. Both women told Ms Fan that Mrs Ponchard had been approached to warn her of the dangers of associating with Mr Haddon.
14 The learned Magistrate considered the evidence very carefully. He considered that the provisions of s 8 of the Criminal Code in relation to common intention to prosecute an unlawful purpose may apply to the conduct of the two women, but his Worship was unconvinced that the provisions of s 7(d) of the Code (making a person who counsels or procures another to commit an offence a principal offender) were applicable. The essence of his Worship's reasons was that whatever it was that Carole and Bronwyn Haddon had done, the contacts between each of them and Mrs Ponchard, whether personally or by telephone, did not have the necessary quality "of continuing in time or repetitiveness to constitute persistency". His Worship specifically found that it could not be said that the defendants had persistently followed or telephoned Mrs Ponchard.
15 Although unnecessary to reach a conclusion on the subject, his Worship also determined that it could not be said that the only available inference was that the defendants in contacting Mrs Ponchard had intended to cause apprehension of fear to her. His Worship concluded that the only evidence before the court (that from Ms Fan) was that the defendants had said that they contacted Mrs Ponchard to warn her of danger to her children that might arise in the event of the alleged affair between herself and Mr Haddon continuing. The learned Magistrate concluded that the mere fact of telephoning and otherwise contacting Mrs Ponchard did not of itself establish any relevant intent on the part of the defendants. Although their belief in relation to the alleged affair may well have been totally misguided and their contact may have been unreasonable and misguided, there was no evidence to conclude only that there was an intent to cause apprehension or fear.
16 For these reasons the learned Magistrate dismissed the charges which had been faced by the appellants and vigorously contested by them over four sitting days. That decision was delivered on 21 April 1998, but there was a further hearing on 30 July 1998 relating to the question of costs. After hearing submissions in that regard the learned Magistrate gave lengthy reasons for decision on 21 August 1998 in which an order was made pursuant to the provisions of the Official Prosecutions (Defendants Costs) Act 1973 ("Defendants Costs Act") that the appellants should recover a total of $5800 by way of costs. These costs were to be divided
(Page 7)
- equally between them, that is, $2900 in relation to charge 9862 and $2900 in relation to charge 9863.
17 The learned Magistrate set out the very long history of the proceedings and the representation of the appellants by a number of different solicitors. In fact, they were represented by six separate legal practitioners during the course of the proceedings, but other than on 8 April 1998, unrepresented at the trial of the proceedings. For only approximately one-half day on 8 April were they represented by counsel.
18 The costs sought by the appellants were $19,313.83, being the costs which they had incurred by reason of their representation by the various solicitors and counsel concerned with the matter. The learned Magistrate had been requested to invoke the provisions of s 5(5) of the Defendants Costs Act, in order that costs in excess of those which would be determined by reference to the appropriate scale fixed under the relevant provision of the Legal Practitioners Act 1893 would be calculated. Section 5(5) is in the following terms:
"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."
19 The learned Magistrate acceded to the view that there was special difficulty and/or complexity in the matter and determined that costs greater than those constituted under the relevant scale were payable. His Worship said:
"It is submitted that the matter is one of special difficulty and complexity because it was a charge of unlawfully stalking pursuant to Section 338D of the Criminal Code, that there is a paucity of authority in relation to such charges, that there was a large number of witnesses initially indicated to be called on behalf of the prosecution and the matter involved complex questions of law. In relation to the last mentioned matter it is clear that one of the issues to be determined, initially, was as to whether documentary evidence seized from the defendant Bronwyn Haddon was the subject of legal professional privilege
(Page 8)
- or not. As I understood that issue the complainant conceded that prima facie the documents the subject of the claim did have attached to them legal professional privilege however because they were said to be brought into existence for a criminal or improper purpose then legal professional privilege did not attach to them. Quite clearly this matter alone raised some complex questions of law. It is also the case that there is a paucity of authority in relation to stalking charges. 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 Section 5(5) of the Act."
20 The learned Magistrate analysed each of the many accounts which had been rendered by the solicitors who had acted for the appellants and came to the conclusion that there was a good deal of duplication of effort occasioned by the number of solicitors involved in the matter. He concluded with these words:
"In my view, undoubtedly defendants are entitled to change their solicitor or counsel during the course of proceedings, however it can not be said that if they do so then all duplicated effort, duplicated costs and duplicated expenses can be considered to be proper and reasonable costs. In my view the words proper and reasonable import into considerations to be made some objective notion as to what could normally be expected to be a reasonable sum payable by way of legal costs and expenses for proper investigation, preparation and representation to be provided. In my view when considered in that light it can not be proper and reasonable to allow charges that arise because of actions taken by a defendant where investigations and preparation undertaken is duplicated, and in this instance duplicated several times over. In my view the defendants are entitled to proper and reasonable costs for representation in Court by McKerlie, Mikkelsen and Horrigan. They are entitled to an appropriate allowance for getting up on the part of Mr Browne. They are entitled to an appropriate amount for preparation in respect of the trial and attendance on the trial by Mr Browne. They are not entitled to any allowance in respect of getting up by McKerlie, Mikkelsen or Horrigan
(Page 9)
- and they are not entitled to costs in respect to any applications made on their behalf that were unsuccessful. Those applications may be ancillary to the trial however they being unsuccessful it is my view that such unsuccessful applications ought not be paid for by the complainant, in reality the State."
21 From the learned Magistrate's decision the appellants appealed to Scott J, who heard the appeal on 16 February 2000 and delivered judgment on 8 March 2000. His Honour summarised the history of the proceedings and the reasons for judgment of the learned Magistrate on the question of costs and concluded that his Worship had "carefully analysed each of the accounts presented to the court by the appellants and … allowed specific items that had been vouched for in the accounts presented to the court." After setting out the grounds of appeal formulated by the appellants his Honour said:
"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 (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.
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.
As has been stressed repeatedly in the Supreme Court, costs are always discretionary, and in this case, in my view, the learned
(Page 10)
- 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."
22 On 16 June 2000 the appellants sought leave from Scott J to appeal from his Honour's decision delivered on 8 March 2000. Leave was refused, and pursuant to s 189 of the Justices Act 1902, the appellants appealed to this Court against that refusal. Numerous grounds of appeal were relied upon, but the primary ground was that the learned Judge had erred in law in failing to hold that the appellants had established an arguable case and had failed to address the various grounds of appeal they had advanced before him, thus "denying substantial justice to the (appellants)". No reasons for judgment were given by the learned Judge in relation to the matter, but that is not surprising, as it was only an application for leave to appeal in chambers.
23 The test before his Honour was whether the grounds of appeal advanced before him disclosed an arguable case (Justices Act 1902, s 187(1)). An "arguable case" is one which has some prospect of success. It was put this way by Malcolm CJ in Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262:
"It was contended on behalf of the appellant that the expression 'arguable case' in s 187(1) meant 'capable of being arguable': see The Shorter Oxford Dictionary. In my opinion, having regard to the context, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. In this context, 'arguable case' necessarily has the same meaning as 'reasonable case', as that expression is used in O 20, r 19 of the Rules of the Supreme Court 1971. The case must be one which has 'some' chance of success: see Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 495. This will not be so in the absence of exceptional circumstances."
24 Having heard lengthy argument from the appellants this Court unanimously concluded that an arguable case was disclosed in relation to a number of the grounds of appeal advanced by the appellants. They are:
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- "a. In dismissing the Applicants' Costs Appeal and refusing Leave to Appeal that decision, His Honour Mr Justice Scott has erred in law by failing to hold that the Applicants have established an arguable case, and by failing to address the Applicants' following Grounds of Appeal, denying substantial justice to the Applicants;
…
f. 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;
g. 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(4) of 'the Act';
…
j. 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;
k. 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;
l. 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
(Page 12)
- fundamental importance to the interests of justice and fair trial;
- m. 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."
25 The Court was however of the view that a number of grounds were unarguable. Those grounds and the reasons for that view are as follows.
Grounds (b) - (e)
26 These grounds were formulated as follows:
"b. It is within the 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;
c. 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;
d. 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;
e. 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 Complainant;"
- The first two of these grounds alleged abuse of process of the Court of Petty Sessions in relation to the complaints before it and acting in excess of jurisdiction by the learned Magistrate. It is contended in relation to the first ground that it is in "the inherent jurisdiction" of the Supreme Court to grant leave to appeal in these circumstances. That phrase is repeated in other grounds of appeal. It is irrelevant to the proceedings before the Court, as the jurisdiction of the Court to deal with appeals from
(Page 13)
- Magistrates is statutory and contained within the provisions of the Justices Act 1902, Pt VII. No question of inherent jurisdiction of the Court arises. Nor is there any question of reviewing matters of "substantial abuse of process". As was pointed out to the appellants during the hearing of the appeal, there could not have been an abuse of process of the court below as the appellants were acquitted by decision of the learned Magistrate on the merits. Cases of abuse of process of the court generally call for relief by way of stay of proceedings or by other relief, none of which is relevant to this case: see for example Walton v Gardiner (1993) 177 CLR 378; Rogers v R (1994) 181 CLR 251. The assertion that the prosecution brought against the appellants was "oppressive or doomed to failure and alleged an offence unknown to law" and was thereby a substantial abuse of process or "in excess of jurisdiction" also founders. There is nothing to suggest that the prosecution was oppressive. Whether it was "foredoomed to failure" is something that can be argued by the appellants under ground (f) which the Court has allowed. That could be relevant to the quantum of costs allowed. The offence alleged was certainly known to law and could not be said to have been either an abuse of process or in excess of jurisdiction.
27 Ground (d) asserts in essence that the learned Magistrate's verdict of acquittal and order for costs could not overcome the oppressiveness of the prosecution. This ground is basically the same as the last. However, it has to be said that the acquittal of the appellants and the order for costs made in their favour means that there can not have been a miscarriage of justice in the way in which the proceedings were conducted. The way in which they were conducted may be relevant to the question of costs (ground (f)) but not to the question of whether or not there was a miscarriage of justice. Cases of miscarriage of justice are cases in which the verdicts of conviction are set aside and either quashed or a re-trial in relation thereto ordered: see for example in relation to trials on indictment Criminal Code s 689(1).
28 Ground (e) again relates to the inherent jurisdiction of the court to review substantial abuse of process but also includes an allegation of "police impropriety" in improperly causing a successful defendant to incur costs. However, the question does not relate to inherent jurisdiction at all. It is a question of allowance of costs by reference to statutory powers to do so. What is contained in this ground is fully encompassed in ground (f).
(Page 14)
Grounds (h) and (i)
29 Grounds (h) and (i) were as follows:
"h. 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;
i. 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';"
- The first of these grounds complains that the learned Magistrate erred in relying upon a costs scale which was invalid and asserts that the scale does not abrogate the discretion to award greater costs under s 5(5) of the Defendants Costs Act. As I have already pointed out, the learned Magistrate chose to compensate the appellants in costs under s 5(5) by reason of the fact that payment of costs greater than those which would be allowed under the relevant scale "before the decision in Klahn v Talbot (1995) 83 A Crim R 535" was desirable. The Magistrate thus understood that there was a problem with the scale of costs which had been proclaimed prior to the decision in Klahn v Talbot. However, he was not ordering costs in accordance with that scale. To the contrary, his Worship was going beyond any scale, whether that formulated before the decision in Klahn v Talbot, or otherwise. Far from abrogating any judicial discretion, his Worship exercised the discretion to award costs over and above scale costs proclaimed under s 58W of the Legal Practitioners Act 1893. There is therefore no substance in this ground.
30 Ground (i) contends that the learned Magistrate misconstrued the meaning and effect of s 6(b) and s 6(c) of the Defendants Costs Act in reducing the defendant's entitlement to costs otherwise than in accordance with those provisions. However, this ground reveals a fundamental misunderstanding of what the learned Magistrate did. His Worship did not apply the provisions of s 6 of the Defendants Costs Act at all. That provision provides for the abrogation or reduction of costs in certain
(Page 15)
- circumstances, but they were not found by the learned Magistrate to have existed. All that the learned Magistrate did was reduce as a matter of discretion the quantum of costs sought. That was not an exercise undertaken by him by reference to the provisions of s 6. There is therefore nothing in this ground of appeal.
Grounds (n), (o) and (p)
31 Grounds (n), (o) and (p) were as follows:
"n. Pursuant to the provisions of Section 3(2) of 'the Act', Section 152 of the Justices Act 1902 in conferring a 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;
o. 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;
p. 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."
- The reference to s 3(2) of the Defendants Costs Act is a reference to the following provision:
"To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the defendant prevails."
Section 152 of the Justices Act is in these terms:
"When justices, instead of convicting or making an order, dismiss the complaint, they may, by their order of dismissal, order that the complainant shall pay to the defendant such costs as to them seem just and reasonable."
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- appeal under the Act unless, in the opinion of the court, a point of law of exceptional public importance is involved. No argument had ever been addressed to the learned Magistrate to the effect that costs should be ordered under this section. No argument can now be put to this Court to that effect. The costs which the learned Magistrate ordered did "follow the event" as referred to in ground (o) and so nothing contained within that ground is of any relevance. None of these three grounds have any merit.
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