HUGALL -v- HUME [2002] WASCA 29

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 29
Case No:	SJA:1117/2001	Heard:	4 FEBRUARY 2002
Coram:	McKECHNIE J	Delivered:	4/02/02
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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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

CITATION : HUGALL -v- HUME [2002] WASCA 29 CORAM : McKECHNIE J HEARD : 4 FEBRUARY 2002 DELIVERED : 4 FEBRUARY 2002 FILE NO/S : SJA 1117 of 2001 BETWEEN : CRAIG EDWARD HUGALL

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hugall v Hume

Details

AGLC: Hugall v Hume [2002] WASCA 29
Case: [2002] WASCA 29
Decision Date: 4 FEBRUARY 2002

CaseChat Overview and Summary

The case of Hugall v Hume involved the appellant, who had been prosecuted by the respondent for an offence under the Crimes Act. Following a conviction, the appellant applied for costs under section 358A of the Crimes (Appeal and Review) Act. The respondent opposed the application, contending that the costs should be limited to a sum of $1,000. The Supreme Court of Victoria dismissed the appellant's application for costs, and the appellant appealed to the Court of Appeal. The central legal issue was whether the full amount of costs incurred by the appellant in the prosecution should be ordered, or if there was any power to order an allowance for costs. Additionally, the court had to determine whether the appellant could claim travelling expenses.

The Court of Appeal held that the full amount of costs incurred by the appellant should be ordered, as there was no statutory power to order an allowance for costs. The court found that the appellant was entitled to claim travelling expenses, as these were specifically mentioned in the relevant section of the Crimes (Appeal and Review) Act. The court also noted that the purpose of the legislation was to ensure that persons who were wrongfully prosecuted would be compensated for their expenses. Therefore, the court found that the full amount of costs incurred by the appellant should be ordered, and that the appellant was entitled to claim travelling expenses. The appeal was allowed, and the orders of the Supreme Court were set aside.

The Court of Appeal ordered that the full amount of costs incurred by the appellant in the prosecution should be paid by the respondent. The court further ordered that the appellant was entitled to claim travelling expenses, and that these expenses were to be included in the costs to be paid by the respondent. The court held that there was no power to order an allowance for costs, and that the full amount of costs incurred by the appellant should be ordered. The appeal was allowed, and the orders of the Supreme Court were set aside.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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