JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KIRWIN -v- THE PILBARA INFRASTRUCTURE PTY LTD [2012] WASC 99 (S) CORAM : HALL J HEARD : ON THE PAPERS DELIVERED : 7 SEPTEMBER 2012 FILE NO/S : SJA 1030 of 2011 BETWEEN : CHRISTOPHER KIRWIN Appellant
AND
THE PILBARA INFRASTRUCTURE PTY LTD
Respondent
FILE NO/S : SJA 1031 of 2011 BETWEEN : CHRISTOPHER KIRWIN Appellant
AND
FORTESCUE METALS GROUP PTY LTD
Respondent
ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE G MIGNACCA-RANDAZZO
Citation : PE 50531 to 50547 of 2008 and PE 50575 of 2008
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Catchwords:
Costs - Appeal from Magistrates Court - Official Prosecutions (Accused's Costs) Act 1973 (WA) - Whether the respondent entitled to costs related to notice of contention that was not determined - Whether respondent entitled to a certificate for three counsel - Whether scale limits in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 should be removed or raised - Turns on own facts
Legislation:
Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Legal Profession Act 2008 (WA), s 252, s 275, s 280
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5, s 9
Result:
Costs orders made
Category: B
Representation:
SJA 1030 of 2011
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : DLA Piper Australia
(Page 3)SJA 1031 of 2011 Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : DLA Piper Australia
Case(s) referred to in judgment(s):Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S)Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99R v Burgess; Ex Parte Henry (No 2) (1937) ALR 363Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470Sundell v Queensland Housing Commission [1954] HCA 45; (1954) 94 CLR 531Washbourne v State Energy Commission (WA) (1992) 8 WAR 188
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Introduction 1 On 23 March 2012 I dismissed the appeal in this matter: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99. The appeal was one brought by the prosecution against the dismissal by a magistrate of charges against the respondents under the Occupational Safety and Health Act 1984 (WA). On the delivery of my decision the parties indicated that they needed time to discuss the issue of costs. I reserved the question of costs and said that in the event the parties could not agree they could file written submissions and I would determine the matter on the papers.
2 The parties were unable to agree in respect of some aspects of the costs claimed. On 12 June 2012 I made orders requiring the filing of written submissions. The respondents filed their written submissions on 26 June 2012 together with an affidavit of Mr Simon Michael Billing, a solicitor for the respondents. The appellant filed written submissions on 3 July 2012.
3 The principal proceedings were an appeal from the decision of a magistrate under Pt 2 of the Criminal Appeals Act 2004 (WA). The nature of the order sought by the respondents is a certificate pursuant to s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Accused's Costs Act) for the costs of the appeal, including the costs of the notice of contention, the costs of the application for leave to appeal and including any reserved costs. The effect of such a certificate is that any costs covered by it are payable from the consolidated account. In these circumstances the appellant is not, strictly speaking, a party to the application, however the appellant's solicitors have provided submissions to assist the court.
4 There are three issues in dispute:
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5 It remains, of course, necessary for me to be satisfied that the terms of any costs order made are appropriate in the circumstances regardless of any agreement by the parties.
The law
6 The proceedings in the Magistrates Court from which the appeal was brought were an official prosecution within the meaning of that term in the Accused's Costs Act: s 4. That is because they were proceedings in a summary court in which the respondents were charged with offences by a public official. Subject to the Accused's Costs Act a successful accused is entitled to his costs: s 5(1). In the present case the respondents were successful in the proceedings in the Magistrates Court. They had an entitlement to costs in that regard and no doubt have claimed them. The present application does not relate to those costs.
7 Section 5(3) of the Accused's Costs Act provides for costs in respect of appeals to this court from the Magistrates Court. It provides as follows:
Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
8 Section 4(2) defines the circumstances in which an accused person is successful. These are where the accused is acquitted or discharged, where the charge is dismissed for want of prosecution, and where a conviction is set aside on appeal. In the present case none of those outcomes occurred 'by reason of a decision of the appeal court'. Rather, what occurred was that the respondents were successful in the Magistrates Court by reason of being acquitted in that court and that decision was not affected by the appeal. In these circumstances there could be an argument that in a case such as this; that is, where a prosecution appeal against an acquittal has failed, that the respondent is not a 'successful accused' in the appeal court for the purposes of s 5. See Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S). 9 That is not a contention dealt with by the parties in their submissions and the appellant has not sought to raise it. Both parties have proceeded upon the assumption that s 5(3) covers the present circumstances. While that position is not free from doubt, I will proceed upon the same basis. That is because it is at least arguable that the definition in s 4(2) is not intended to be exhaustive and that the ordinary meaning of the words used in s 5(3) would cover a respondent to an unsuccessful prosecution appeal.
(Page 6) If it did not then it would seem to have little purpose given that s 5(4) covers circumstances where an accused is successful by reason of an appeal court reversing a decision of the summary court. Furthermore, it is difficult to see why such circumstances would be excluded from the ambit of the Act.
10 Section 5(5) provides that the amount of costs ordered shall be in accordance with the scale fixed from time to time by a costs determination as defined in the Legal Profession Act 2008 (WA), s 252. Section 275 of the Legal Profession Act provides that the Legal Costs Committee may make legal costs determinations. The relevant determination here is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 (WA) (the Accused's Costs Determination). Clause 6 of that determination provides as follows: 6. Scale of costs Subject to clause 7, the costs recoverable by a successful accused in an official prosecution (inclusive of counsel fees but exclusive of other disbursements) shall not exceed the amounts set out in the Table to this clause.
11 Item 8 of the table provides that the maximum time and amounts permissible in respect of appeals are as per the rates specified in item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (the Contentious Business Determination). Clause 7 of the Accused's Costs Determination provides as follows: 7. Complex matters, and matters involving a high degree of skill or urgency or require Senior Counsel (1) Where a matter is complex, or involves a high degree of skill or urgency or requires Senior Counsel, notwithstanding the rates or scale set out in the Tables to this Determination, the accused is entitled to recover a fee that is greater than the one that is set out in this Determination, if it is reasonable in the circumstances.
(2) Work undertaken by Senior Counsel shall be allowable in accordance with the rates in the Table to clause 5 of this Determination.
12 Clause 5 provides that the daily rate for senior counsel is $4,620 and then states: The daily rates set out in the table above are intended to cover all work done on a hearing or trial day whether in or out of court including preparation of written submissions and is not intended to be supplemented
(Page 7) in any way by additional hourly charges given that the maximum number of hours allowed for the daily rate is 10 hours per day.
13 It can be seen from this that the rates applicable to an appeal from the Magistrates Court are those set out in the Contentious Business Determination, however, this is subject to cl 7 of the Accused's Costs Determination. Accordingly, to the extent that a matter is complex or involves a high degree of skill or urgency there is an entitlement to recover a fee that is greater than the ones set out in the determination provided that it is reasonable in the circumstances. Furthermore, if work is undertaken by senior counsel it is allowable at the rate provided for in cl 5. To the extent that there is a difference between the Accused's Costs Determinationand the Contentious Business Determination, the Accused's Costs Determination provides the relevant scale. This is the effect of making application of the table subject to cl 7. 14 Section 280 of the Legal Profession Act provides that taxation of bills of costs of legal practitioners is subject to the relevant determination. However, s 280(3) provides that s 280(1) is not to be construed as limiting the power of a court to determine in any particular case the amount of costs allowed. Section 280(2) empowers a court to order payment of costs above those fixed by determination or fix higher limits or remove the limits on costs in the determination if it is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter.
15 The starting point is that the amount of the costs should be in accordance with the scale prescribed. If, due to special difficulty, complexity or importance the court forms a view that higher limits than those in the scale are justified, the scale items remain the basic guidelines from determining the amount of costs to be ordered: Washbourne v State Energy Commission (WA) (1992) 8 WAR 188.
Unusual difficulty, complexity or importance?
16 The parties have agreed that this was a matter of unusual difficulty, complexity or importance. I am not, of course, bound by that agreement. I would, however, accept that this matter was reasonably complex in nature. In that regard I note the following:
1. The transcript of the Magistrates Court proceedings extended to 1,392 pages.
(Page 8)17 The appeal was certainly more complex than many appeals from the Magistrates Court. Having said that, the Magistrates Court increasingly deals with complex prosecutions involving breaches of occupational health and safety, planning and environmental laws. It is not unusual for such matters to be vigorously contested and to result in hearings which proceed over many days. Nor is it unusual for such cases to result in appeals that may involve difficult questions of fact or law. 18 The fact that this matter was more complex than some other cases may justify allowing costs in excess of the scale, but it does not necessarily justify removing the limits entirely. This matter was not so unprecedented as to render it impossible to make any reasonable assessment of an appropriate level of costs.
19 In general, a successful party should be entitled to receive an award of costs. The position is no different under the Accused's Costs Act. However, there are cases in which a party may wish to expend costs that far exceed what may objectively be viewed as reasonable. A party that chooses to do this should not expect that in the event of success it will be able to recover all such costs from the unsuccessful party. Costs have never been intended to be comprehensive compensation for any loss suffered by a litigant: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410.
20 The existence of scales is intended to ensure that costs remain within reasonable bounds. The fact that a matter is complex and might justify a higher rate of costs than the scales would otherwise allow does not detract from the principle that the costs should nonetheless be reasonable and be proportional to the issues that needed to be determined.
21 The affidavit filed on behalf of the respondents provides some details of the solicitors and counsel fees incurred by them. Even taking into account the complexity of this appeal, the amount of time expended by the respondents' lawyers and the fees incurred by the respondents are extraordinary. I would venture to suggest that they are of unrivalled
(Page 9) magnitude for an appeal of this nature. I have refrained from referring to the total dollar sum only because the respondents have not sought costs for a fixed sum in this amount, but rather for the costs to be assessed. Nonetheless, that sum has been provided to the court in support of the claim that the appeal was complex. Suffice to say it is a sum which is astonishingly large.
22 Bearing in mind that the issues which were raised on the appeal had already been comprehensively prepared and presented in the Magistrates Court it is difficult to understand how the amounts said to have been incurred could be justified. I note in this regard, as an example, that the respondents' solicitors billed for in excess of 346 hours in respect of the drafting of the notice of contention and preparation of submissions. The three counsel who were briefed by the respondents billed for 444.7 hours in respect of similar work. This does not include time spent in the hearing of the appeal. 23 The affidavit provides only a general overview of the work that was done by the respondents' solicitors and counsel. It is not my task to make a detailed assessment of that work at this stage. I note, however, that amongst other things the work of the solicitors was said to include 'reviewing provisions of the Criminal Procedure Act and Criminal Appeals Act and drafting memorandum on provisions and procedure on appeal'. It is frankly difficult to conceive why the respondents should be able to recover the costs of work of this nature; the procedure in respect of appeals under Pt 2 of the Criminal Appeals Act is straightforward and should be well-known to solicitors practising in this area.
The notice of contention
24 It was unnecessary for me to address the issues raised in the respondents' notice of contention: Kirwin v Pilbara Infrastructure [13]. These were issues that had been the subject of preliminary arguments before the magistrate. A major part of the written submissions of both parties and of the appeal hearing was taken up dealing with the notice of contention. Because it was unnecessary to deal with the merits of the notice of contention it is not possible to say that they were issues in respect of which the respondents were either successful or unsuccessful. Nor is it possible to say whether, or to what extent, any of those issues had merit. To make an assessment now in that regard would be to expend considerable judicial time on issues which are moot.
25 In Mr Billing's affidavit he says that the grounds of contention were 'profound and complex and were reasonably ventilated by the
(Page 10) respondents'. It is said that the solicitors for the respondents 'may well have been negligent had some of these legal issues not been raised'. These are assertions the merit of which can not been tested. The fact that a party has been successful on the principal issue does not make every argument that they raise a profound one. In this case, the arguments raised in the notice of contention did not find favour with the magistrate. It may have been an understandable forensic decision to agitate those matters again on an appeal but that, in itself, does not result in a conclusion that the respondents should be entitled to their costs in respect of the notice of contention.
26 The appellant, in opposing the costs of the notice of contention, notes that aspects of it were not pressed on the hearing of the appeal. In particular, the second and subsequent sentences of particular 4.1 and particular 4.2 of contention 4 and the whole of contention 5 were not relied upon. In these circumstances it would clearly be inappropriate for the respondents to be entitled to costs in respect of those aspects of the notice of contention. Indeed, given the lateness of these changes to the respondents' case it must be likely that the appellant was put to unnecessary time and expense.