Jensen v Young and Polanowski
[2000] TASSC 71
•21 June 2000
[2000] TASSC 71
CITATION: Jensen v Young & Polanowski [2000] TASSC 71
PARTIES: JENSEN, Kim Allan
v
YOUNG, Peter Edward,
POLANOWSKI, Bishac Leon
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 92/1999 and LCA 93/1999
DELIVERED ON: 21 June 2000
DELIVERED AT: Hobart
HEARING DATES: 3 May 2000
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure - Costs - Scale of costs - Applicability of rules - No "unusual complexity or importance" - Costs awarded by a Court of Petty Sessions ought be less than those appropriate for Supreme Court proceedings.
Costs in Criminal Cases Act 1976, s4
Rules of the Supreme Court, Table B
Trident Seafoods Pty Ltd v Dransfield A64/1993, followed.
House v R (1936) 55 CLR 499; Latoudis v R (1990) 170 CLR 534; Electrona Carbide Industries Pty Ltd & Attorney General of Tasmania v Baillieu Bowring (Tas) Pty Ltd B9/1987, considered.
Aust Dig Procedure [610]
REPRESENTATION:
Counsel:
Appellant: F C Neasey
Respondent: D J Gunson
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Gunson Pickard & Hann
Judgment Number: [2000] TASSC 71
Number of Paragraphs: 12
Serial No 71/2000
File No LCA 92/1999
File No LCA 93/1999
KIM ALLAN JENSEN
v
PETER EDWARD YOUNG
BISHAC LEON POLONOWSKI
REASONS FOR JUDGMENT SLICER J
21 June 2000
The respondents were charged with offences contrary to the Fisheries (Abalone) Rules 1997, and rr13(1)(f), and 27(3). The complaints related to a failure to complete and possess certain documentation relevant to the commercial operation of fishing and processing. The respondents were represented by senior counsel in the hearing of the prosecution before a magistrate sitting in the Court of Petty Sessions. At the conclusion of the prosecution case, counsel for the respondent successfully argued a no case submission and the complaints were dismissed. The contentions of the respondents were that:
(1) there was no evidence that the abalone were on the premises for the purpose of processing;
(2) there was no evidence that the abalone belonged to either respondent;
(3)the evidence did not disclose that the processing premises were within a prescribed distance from the place at which the abalone were landed.
The submissions were based on a knowledge of the Regulations, an evaluation of the evidentiary strands and forensic expertise possessed by experienced counsel. The nature of the case involved potentially serious consequences for the respondents but was not of a nature which is sometimes described as a "test case" with implications beyond the particular issues raised by the parties. The successful submission did not arise from complex legal analysis and argument but involved an understanding of the legislation and the application of forensic judgment. The applicant concedes, correctly, that the case warranted the retention of senior counsel and that the arguments advanced by counsel were neither simple or self-evident. The learned magistrate upheld the "no case" submission on the basis of the first argument advanced by counsel and did not find it necessary to determine the remaining bases of the motion.
Upon the dismissal of the complaints, the respondents applied for an order for costs, in accordance with the Costs in Criminal Cases Act 1976 ("the Act"), s4. The court awarded costs for certain items to be paid in accordance with the Rules of the Supreme Court, Table B. No complaint is made about this portion of the order. However, counsel for the respondents successfully argued that the provision for fees for counsel should be assessed at the rate of $200 per hour. The transcript shows the following exchanges between the prosecutor, counsel and the learned magistrate which related to that assessment.
"HIS WORSHIP: … I think it is appropriate here that I make an order pursuant to s4 ss2, with particularly (sic) reference to paragraph (b) of the Costs in Criminal Cases Act that each defendant have their costs paid pursuant to that Act.
MR GUNSON: That will be the usual Table B, top scale?
HIS WORSHIP: Table B of the Supreme Court charges.
MR GUNSON: That is the highest scale, which is the normal one, ninety per cent.
HIS WORSHIP: The highest scale, that's right.
MR GUNSON: And I seek counsel's fees at two hundred dollars an hour, your Worship.
HIS WORSHIP: Mr Jensen, any submissions in relation to the Table?
MR JENSEN: Your Worship, that is the highest scale that I have heard in the Court of Petty Sessions. I believe that the Court of Petty sessions is usually eighty per cent, your Worship.
HIS WORSHIP: Sometimes eighty per cent of Table A, or, Table B is ninety per cent.
MR JENSEN: As far as counsel fees, your Worship, I can't say what the going rate is.
HIS WORSHIP: Well, we are dealing here with a very senior counsel and I guarantee he wouldn't appear in any other court for that low fee.
MR JENSEN: Well, he has earned his money today.
HIS WORSHIP: I am prepared to specify counsel's fee at the rate of two hundred dollars per hour, it is on Table B of the Supreme Court table. That completes the list for today."
The applicant seeks review of that order on the following grounds:
"AMENDED GROUNDS OF APPEAL
1The learned magistrate erred in fact and/or in law in exercising a discretion to allow counsel's fees in the amount of $200 per hour, in that he failed to make any or proper enquiry as to what counsel for the respondent had been allowed by way of counsel's fees in both the Court of Petty Sessions and other courts.
2The learned magistrate erred in fact and/or in law in exercising a discretion to allow counsel's fees in the amount of $200 per hour, in that he proceeded upon an erroneous assumption of fact that counsel for the respondent would not appear in any other court for the ('low') counsel's fee of $200 per hour.
3The learned magistrate erred in law in that he had no power to allow counsel's fees outside, or in conflict with, those provided for in Table B of Appendix M to the Rules of the Supreme Court.
4The learned magistrate erred in fact and/or in law in exercising a discretion to allow counsel's fees in the amount of $200 per hour, the said amount not being a just and reasonable amount, or in the alternative, being excessive, in particular because the learned magistrate paid regard only to, or excessively to, the seniority of counsel for the respondent."
The Act, s 4(1) provides:
"… where a person having been charged with an offence is discharged from the proceedings in respect thereof, … where ¾
(a) …
(b)the complaint charging him with the offence is dismissed …
(c)…
the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable."
The issues, distilled during the course of argument, are:
(1)whether costs awarded by a Court of Petty Sessions ought be less than those appropriate for Supreme Court proceedings;
(2)what enquiry ought be made and criteria used in the assessment of costs awarded under the Act in a case determined in a court of summary jurisdiction.
During the course of the hearing of this appeal the parties put before the court additional material which showed that counsel for the respondent had been awarded a fee of $200 per hour in two previous prosecutions determined in a court of summary jurisdiction and an identical sum in two matters heard in the Supreme Court. The material was received but is of little assistance except to show that counsel's fee was assessed at the same rate in both jurisdictions.
Ground 2 is not made out. The learned magistrate doubtless intended the remark "I guarantee he wouldn't appear in any other court for that low fee" as an aside. This court accepts such to be the case. But the aside affords some insight into the basis on which the learned magistrate made his assessment, namely, that it was referable to the fees which particular counsel would charge clients. Such ought not be the case. Particular counsel, much in demand, might well quite properly charge fees on the basis of demand and other market forces. But an opposing party, or the keeper of public funds, ought not be subject to the same criteria. An assessment of costs payable by another ought be determined in proportion to the nature and complexity of the case, the experience of counsel employed and the forum in which the case was litigated.
Ground 3 of the motion to review is not made out. This Act permits a court to make an award of costs in accordance with a comparative scale. It is not mandatory, but is intended to provide a pragmatic basis for assessment. It was appropriate for the learned magistrate to use Table B for the purpose of portion of the assessment, but it was not necessary for him to apply the same Table for all of the work performed.
Grounds 1 and 4 may be considered together. A number of general proportions are relevant to the identification and resolution of the issues raised by these grounds.
(1)The Act requires that the costs be assessed as just and reasonable. That can be done by reference to an existing scale of the expertise of a taxing officer or at the discretion of the court.
(2)Any exercise of discretion by a court must be exercised within the bounds of existing principles (House v R (1936) 55 CLR 499).
(3)Costs awarded to a successful defendant in criminal or quasi-criminal cases are compensatory in nature (Latoudis v Casey (1990) 170 CLR 534).
(4)Costs awarded are referable to the value of the work undertaken (Electrona Carbide Industries Pty Ltd & Attorney-General for the State of Tasmania v Baillieu Bowring (Tas) Pty Ltd B9/1987.
(5)Ordinarily costs awarded in a summary jurisdiction ought be assessed at a rate less than provided for by Supreme Court practice (Trident Seafoods Pty Ltd v Dransfield, A64/1993).
The parties put before the court at the hearing of the appeal material which showed that counsel for the respondent had been awarded costs in the Supreme Court at a rate of $200 per hour, the same rate as awarded by the learned magistrate. These proceedings, although of a serious nature and entitling the respondent to experienced representation, were not in the nature of a test case with important ramifications for the wider community or involving complex issues of fact and law. There is a need for proportionality between the nature of the case, jurisdiction, compensation and comparable fees. A citizen might be entitled to be represented by the most able and expensive counsel in Australia but ought not recover, in full, fees incurred from public moneys in a simple case. In a situation where, as in this case, a judicial officer believes that a particular scale provides inadequate recompense (Rules of the Supreme Court, Table B, fee on brief - $431), then enquiry should be made as to a more appropriate scale. An intuitive approach ought be taken with caution, if only because the judicial officer, away from daily practice, might be unaware of current assessments made by taxing officers. In this case the learned magistrate relied on a figure which he had previously awarded. He could have sought guidance from the scale adopted by the Legal Aid Commission for amounts allowed by taxing officers made under the Rules of the Supreme Court, Table B, or fees paid with respect to other summary jurisdictions; (see generally, Carter v Coombe (1989) 154 LSJS (SA) 317 and the cases referred to therein.) He ought, in a case of this nature have assessed counsel's fee at a rate less than that allowed in Supreme Court actions.
In my opinion, the applicant is entitled to succeed on grounds 1 - 4 of the Motion to Review. The orders of the learned magistrate relating to the assessment of counsel's fee for each respondent are quashed. His order as to entitlement remains undisturbed.
As to disposition, this court will exercise powers afforded by the Justices Act, ss110, 110(2)(i) and in accordance with the costs in the Criminal Cases Act, 1976 s5A(3) and direct the Registrar of the Supreme Court to tax the costs awarded, as counsel's fee, by the learned magistrate.
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