Merrick v City of Armadale
[2013] WASC 175 (S)
•25 July 2013
MERRICK -v- CITY OF ARMADALE [2013] WASC 175 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 175 (S) | |
| Case No: | SJA:1123/2012 | ON THE PAPERS | |
| Coram: | JENKINS J | 25/07/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Final orders on appeal made Respondent ordered to pay the appellant's costs fixed at $903.25 Respondent granted an indemnity certificate in respect of the costs of the appeal fixed at $611.50 | ||
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| PDF Version |
| Parties: | GEOFFREY MERRICK CITY OF ARMADALE |
Catchwords: | Costs Successful appeal against conviction Appellant unrepresented Disbursements necessarily or reasonably incurred Indemnity certificate |
Legislation: | Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5 Suitors' Fund Act 1964 (WA), s 10, s 11 |
Case References: | Richards v Faulls Pty Ltd [1971] WAR 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF ARMADALE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
File No : AR 3305 of 2012
Catchwords:
Costs - Successful appeal against conviction - Appellant unrepresented - Disbursements necessarily or reasonably incurred - Indemnity certificate
Legislation:
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5
Suitors' Fund Act 1964 (WA), s 10, s 11
(Page 2)
Result:
Final orders on appeal made
Respondent ordered to pay the appellant's costs fixed at $903.25
Respondent granted an indemnity certificate in respect of the costs of the appeal fixed at $611.50
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T Houweling
Solicitors:
Appellant : In person
Respondent : Cornerstone Legal
Case(s) referred to in judgment(s):
Richards v Faulls Pty Ltd [1971] WAR 129
(Page 3)
1 JENKINS J: In my reasons for decision I proposed that I make the following orders:
1. The appellant be granted an extension of time within which to appeal to the date of the hearing of the appeal.
2. The appeal be allowed.
3. The notice of contention be dismissed.
4. The conviction of Mr Merrick be set aside.
5. The charge of littering in prosecution notice AR 3305/12 be dismissed.
Each of the parties agree that, given my reasons for decision, those orders are appropriate.
2 Further, the appellant, Mr Merrick, seeks an order that the respondent pay his costs of the appeal and of the proceedings in the Magistrates Court pursuant to the Official Prosecutions (Accused's Costs) Act 1973 (WA) s 5.
3 Mr Merrick does not claim legal fees as he was unrepresented both in the Magistrates Court and on appeal. However, he claims $903.25 for the following disbursements.
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(Page 4)
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4 Mr Merrick has not filed an affidavit in support of his claim but he has provided various accounts. These include his bank statements showing a payment of $65.53 on 13 September 2012 to a petrol station and another payment on the same date of $56.72 at Mt Barker. Mr Merrick has also provided his booking confirmation for the night of 14 March 2013, being the night before the appeal was heard, his transcript receipts and miscellaneous postal receipts.
5 The respondent does not dispute that the appellant is entitled to disbursements which were necessarily or reasonably incurred by Mr Merrick as a necessary incident of him defending the prosecution in the Magistrates Court and of prosecuting the appeal in this court, pursuant to item 9 of the table in cl 6 of the Schedule of the Legal Practitioners 'Official Prosecutions' (Accused's Costs) Determination 2010 (in respect of disbursements incurred prior to 1 January 2013) and item 8 of the table in cl 6 of the Schedule of the Legal Practitioners 'Official Prosecutions' (Accused's Costs) Determination 2012 (in respect of disbursements incurred from 1 January 2013).
6 Each of those items state that copies are allowed at a set amount per page and that other disbursements 'for example transport, accommodation, meals and travel costs of an accused, solicitor, counsel or witness actually incurred by an accused as a necessary incident to defending an official prosecution' 'may be allowed as necessarily or reasonably incurred'.
(Page 5)
7 The respondent says that 'travel and accommodation expenses are not reasonable out of pocket costs which, if they had been incurred by a solicitor acting for [Mr Merrick], could [not] have been recovered from the respondent in these proceedings'. The respondent submits that Mr Merrick cannot recover these costs.
8 Mr Merrick resides in Albany and as he represented himself and gave evidence in the Magistrates Court he was obliged to travel from Albany to Armadale for the hearing in the Magistrates Court. He is entitled to his costs of transport, accommodation, meals and travel in order to do so. Similarly, as Mr Merrick was acting for himself he is entitled to claim his accommodation and meals for his attendance at the hearing of the appeal. The disbursements that he has claimed in these respects were a necessary incident to him defending the prosecution in the Magistrates Court and prosecuting the appeal.
9 I agree with Mr Merrick that given the quantum of the claim a taxation of these costs is not justified. It would result in both parties incurring further and unnecessary costs. I therefore order that the respondent pay Mr Merrick's costs in the appeal and in the Magistrates Court fixed at $903.25.
10 The respondent seeks an indemnity certificate pursuant to the Suitors' Fund Act 1964 (WA) s 10. That section provides that where an appeal against a decision of a court in any proceedings to the Supreme Court on a question of law succeeds, the Supreme Court may, upon application made to the court in that behalf by any party to the proceedings, grant to the respondent to the appeal an indemnity certificate in respect of that appeal.
11 The Suitors' Fund Act s 11(1) provides that where a respondent to an appeal has been granted an indemnity certificate, the certificate entitles the respondent to be paid from monies in the Suitor's Fund an amount equal to the appellant's costs of the appeal as taxed or agreed upon by the Board and the respondent.
12 Mr Merrick succeeded on appeal on a question of law. In Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139 the Full Court discussed the proper approach to the exercise of the discretion to grant an indemnity certificate. The court said that the unsuccessful respondent to the appeal must show some ground for calling for the exercise of the discretion in his favour and he does not do this merely by showing that the appeal has succeeded on a question of law. Without fettering the discretion given by
(Page 6)- the Act, the court said that it appeared that the Act was aimed at giving relief in cases where the decision turned on a question of law, as contrasted with the facts of the particular case, where that question of law might at least reasonably be resolved in different ways, so that in a sense the unsuccessful party may be thought to have suffered some 'misfortune' owing to a doubt about the correct rule of law to be applied.
14 I make the following orders:
1. The appellant be granted an extension of time within which to appeal to the date of the hearing of the appeal.
2. The appeal be allowed.
3. The notice of contention be dismissed.
4. The conviction of Mr Merrick be set aside.
5. The charge of littering in prosecution notice AR 3305/12 be dismissed.
6. The respondent pay the appellant's costs in the Magistrates Court fixed at $291.75 and in this court fixed in the sum of $611.50.
7. The respondent is granted an indemnity certificate in respect of the appeal to this court.
As orders 6 and 7 have been made on the papers, the Criminal Procedure Rules 2005 (WA) r 63 applies to those orders.
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