Hugall v Hume
[2002] WASCA 29
•4 FEBRUARY 2002
HUGALL -v- HUME [2002] WASCA 29
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 29 | |
| Case No: | SJA:1117/2001 | 4 FEBRUARY 2002 | |
| Coram: | McKECHNIE J | 4/02/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | CRAIG EDWARD HUGALL CLAYTON HUME |
Catchwords: | Costs Official prosecution Expenses incurred Full amount of costs to be ordered No power to order an allowance for costs Travelling expenses able to be claimed |
Legislation: | Official Prosecutions (Defendants Costs) Act 1973 (WA) |
Case References: | Nil Graham v Ferguson, unreported; SCt of WA (Walsh J); Library No 960606; 17 October 1996 Lloyd v Faraone [1989] WAR 154 M (A Child) v The Queen (1994) 13 WAR 306 Warren v Coombes (1979) 142 CLR 531 Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CLAYTON HUME
Respondent
Catchwords:
Costs - Official prosecution - Expenses incurred - Full amount of costs to be ordered - No power to order an allowance for costs - Travelling expenses able to be claimed
Legislation:
Official Prosecutions (Defendants Costs) Act 1973 (WA)
Result:
Appeal allowed
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr S Melville
Respondent : Mr A J Sefton
Solicitors:
Appellant : Gibson & Gibson
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Graham v Ferguson, unreported; SCt of WA (Walsh J); Library No 960606; 17 October 1996
Lloyd v Faraone [1989] WAR 154
M (A Child) v The Queen (1994) 13 WAR 306
Warren v Coombes (1979) 142 CLR 531
Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188
(Page 3)
1 McKECHNIE J: On 12 July 2001 in the Armadale Court of Petty Sessions, the appellant successfully defended a charge of stealing. His counsel then sought costs under the Official Prosecutions (Defendants Costs) Act 1973 as follows: Solicitors' fees, $1500; disbursements - travelling, three trips from Roy Hill, for court appearances and to instruct solicitors, 2800 kilometres per round trip at 50 cents per km, a total of $4200; loss of wages, three days travelling and three trips, nine days at $200 per day, $1800.
2 No vouchers or other proof were tendered in support of this application. The total amount of costs claimed was therefore $7500. The application was opposed, not very helpfully, by the police prosecutor. The Magistrate said, after detailing the amounts:
"... And when the court's dealing with an issue of this kind, in my view there needs to be a balance struck.
For example if a person was overseas - - travelling from overseas and was involved in a hearing, would the prosecution have to pay the fare if he had to come back from England for a trial? I seriously doubt it. When you put in that way, it seems to me to be an affront to common sense.
The defendant did have to come to the court to answer to the charge, but he was in Cannington at the time when the circumstances resulting in the charge were laid. So clearly he's in a situation where it's not as though it's a one-off incident that's occurred only once in his life; that is, the attendance in Perth. So in my view the Act should not apply to a situation such as this, although I do acknowledge that there is the capacity in the court to order costs of the kind that are sought in appropriate circumstances.
The maximum fee that's allowed by the Act is about $2100 for a full day trial involving complex issues. This was an incident as simple as any that I've ever dealt with and it's been determined in the space of about an hour.
And in my view that reflects itself upon the whole of the application. There'll be an award of costs in the sum of $1000, which takes into account the brevity of the matter. And I don't think it would be inappropriate to make some sort of allowance. The defendant was charged and he has to get instructions etc.
(Page 4)
- But in my view it's just an allowance and nothing more. So the total award of costs is $1250. ..."
3 It is conceded by the respondent that the Magistrate was in error in making an allowance only in respect of the expenses incurred by the appellant. That concession is properly made.
4 If costs are payable under the Act, that is, for expenses properly incurred then, subject of course to questions of proof, there is no room for the exercise of discretion to award costs less than the full amount incurred or payable. To this extent the grounds of appeal have been made out.
5 The next question is whether the appellant was in any event entitled to costs. The only entitlement can arise through the Official Prosecutions (Defendants Costs) Act. This is because the provisions of the Justices Act 1902 s 219 would otherwise preclude an amount of costs. "Costs" are defined in s 4 of the Official Prosecutions (Defendants Costs) Act as follows:
"'costs' means any expenses 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."
6 Under s 5(5) the amount of costs ordered shall be in accordance with the scale fixed by determination s 58W of the Legal Practitioners Act.
7 The determination applies to the remuneration of legal practitioners and, as counsel for the appellant correctly concedes, the determination does not apply to the costs he claimed for travelling or loss of wages because they are not costs for the remuneration of a legal practitioner.
8 While the word "costs" generally refers to legal costs, the general meaning must give way to the particular meaning as defined in the Official Prosecution (Defendants Costs) Act. That meaning is wide enough to encompass any expenses properly incurred by a defendant in an official prosecution and due and payable or paid to another person.
9 The meaning is not wide enough to encompass loss of earnings because these are not payable by the defendant to another person. Nor is there any provision to pay a travelling allowance as such. However, if travelling costs were actually incurred by a defendant as a necessary
(Page 5)
- incident to defending an official prosecution then these would come within the definition and would be payable.
10 When the matter was before the Magistrate, counsel for the appellant sought costs for travelling at a rate per kilometre, a method of calculation now accepted to be an error. It would have been open to the appellant to have submitted the actual costs. The appellant, through counsel, is not in a position to do that here today.
11 I have two courses. I can either remit the matter to the Magistrate to deal with the question or - and I think it is simpler and preferable - deal with the question myself. I propose to allow the appeal, to set aside the amount of $1250 awarded by the Magistrate for expenses. In lieu thereof I will fix the amount of expenses properly incurred by the appellant. In order to do so, I will give leave to the appellant to file within a reasonable time, and serve on the respondent's solicitors, details concerning those expenses.
12 If the parties are able to agree the expenses they can submit a minute to me and if I consider it appropriate I will agree that.
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