Hunter v City of Joondalup
[2015] WASC 444 (S)
•13 JULY 2016
HUNTER -v- CITY OF JOONDALUP [2015] WASC 444 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 444 (S) | |
| Case No: | SJA:1033/2014 | ON THE PAPERS | |
| Coram: | CORBOY J | 13/07/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Respondent ordered to pay appellant's costs of the trial fixed at $5,000 | ||
| B | |||
| PDF Version |
| Parties: | ANDREW JAMES HUNTER CITY OF JOONDALUP |
Catchwords: | Criminal appeal Costs of trial where convicted appellant successful on appeal No new principles |
Legislation: | Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5 |
Case References: | Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182 Hunter v City of Joondalup [2015] WASC 444 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B C GLUESTEIN
File No : JO 5047 of 2013
Catchwords:
Criminal appeal - Costs of trial where convicted appellant successful on appeal - No new principles
Legislation:
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5
Result:
Respondent ordered to pay appellant's costs of the trial fixed at $5,000
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182
Hunter v City of Joondalup [2015] WASC 444
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
- CORBOY J:
The appellant's claims for costs and 'compensation'
1 The appellant was convicted following trial of an offence against the Local Government Act 1995 (WA). He was fined $3,000 and ordered to pay $5,000 in prosecution costs.
2 The appellant appealed against conviction. I granted leave to appeal and allowed the appeal. I held that the appellant had a defence to the offence alleged under s 17 of the Criminal Code (WA): Hunter v City of Joondalup [2015] WASC 444.
3 The appellant represented himself in the appeal. However, he was represented by a legal practitioner at the trial in the Magistrates Court.
4 The appellant now claims the following costs and 'compensation' in connection with his trial and appeal:
(a) costs and disbursements payable to the practitioner who represented him at the trial;
(b) compensation for time spent in the Magistrates Court and this court (eight days claimed at $400 per day);
(c) compensation for time spent in obtaining legal advice and undertaking research (10 days claimed at $400 per day);
(d) compensation for emotional distress caused to the appellant's children by the publication in a community newspaper of an article relating to the charge alleged by the respondent ($2,000); and
(e) compensation for stress and mental suffering caused to the appellant by the demands made by the respondent and the prosecution of the charge alleged against him and for the what the appellant characterised as the respondent's unreasonable and oppressive conduct - the appellant contended that the respondent had for several years threatened him with fines of $200,000 plus daily penalties of $25,000 and that he ought to receive, as compensation, an amount of $200,000.
The power to award costs
5 The power to award costs is statutory: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 and Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182. Section 67(1) of the Criminal Procedure Act 2004 (WA) provides that a successful party to a prosecution is entitled to the party's costs, subject to the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Official Prosecutions Act).
6 Section 5 of the Official Prosecutions Act provides, so far as is relevant:
(1) Subject to this Act, a successful accused is entitled to his costs.
…
(4) Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.
(5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a costs determination (as defined in the Legal Profession Act 2008 section 252).
The costs that may be awarded
7 As s 5 of the Official Prosecutions Act makes clear, an accused person's entitlement to costs is subject to the ordinary rule that the costs of legal proceedings are confined to money paid or liabilities incurred for professional legal services – the entitlement is to an amount determined according to the scale fixed by a costs determination made under the Legal Profession Act 2008 (WA). A costs determination is made pursuant to s 275 of the Legal Profession Act. That section provides for costs determinations to be made to regulate the amount that may be charged by 'law practices' for contentious and non-contentious business. A law practice is a practice comprising legal practitioners: see the definition of the term 'law practice' in s 3 of the Legal Profession Act.
8 As has been noted, the provisions of the Official Prosecutions Act reflect the long established common law rule that an order for costs is a partial indemnity for the costs incurred by a successful party in engaging legal representation in proceedings. Accordingly, an in person litigant is not entitled to compensation for the time spent in preparing and conducting his or her case: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. As the majority in Cachia observed:
It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, 'but not to the costs and expences of his travell and losse of time' (410 - 411).
9 The majority referred to the judgment of Bowen LJ in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 to provide one explanation for why a litigant in person is not entitled to costs:
Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs (877).
10 Accordingly, the appellant is entitled to an order for costs to the extent that he has incurred a liability to pay the practitioner who appeared for him at the trial in the Magistrate's Court. The appellant is not otherwise entitled to 'compensation' for the time he spent in preparing for and appearing at the trial or the hearing of the appeal or for stress to himself or family members caused by the prosecution of the charge alleged by the respondent. He is also not entitled in these proceedings to compensation or damages as a result of any dealing that he may have had with the respondent.
The costs to be awarded
11 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) provides that, in deciding an appeal, this court may make an order as to the costs of the proceedings in the court of summary jurisdiction.
12 The appellant has provided a copy of the account of the legal practitioner who appeared for him at trial. The account is for work undertaken between November 2013 and May 2014. The applicable costs determination is the Legal Practitioners (Magistrates Court) (Criminal) Determination 2012 (WA) (the Determination). The account itemised the work done on particular dates and the amount charged for that work, but the time spent completing each item of work was not specified. Accordingly, it is not possible to ascertain whether the amounts charged accord with the hourly and daily rates specified in the Determination.
13 The magistrate fixed the respondent's costs at $5,000. My review of the trial transcript indicates that the practitioners acting for the appellant and the respondent were required to consider similar issues for the trial and to prepare evidence that traversed common matters. In particular, the primary issue in the trial was whether the offence alleged was a continuing offence (the appellant submitted that he could not be convicted of the offence alleged as he had been previously convicted of the same offence; the respondent contended that the offence alleged was a continuing offence for which the appellant could be convicted on more than one occasion).
14 The magistrate was well placed to fix the reasonable costs of the trial according to the Determination. There is no reason to depart from his assessment given the issues raised in the prosecution and the conduct of each party's case in the trial.
15 Accordingly, an order will be made that the respondent pay the appellant's costs of the trial fixed at $5,000. That is less than the amount charged by the practitioner retained by the appellant but an award of costs is inevitably only a partial indemnity.
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