Nathan Jack v Anthony Jasinowicz (Ruling)
[2022] VCC 1918
| IN THE COUNTY COURT OF VICTORIA AT Melbourne | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
Case No. AP-18-2226
AP-18-2346
AP-18-2348
| NATHAN JACK | Applicants |
| v | |
| ANTHONY JASINOWICZ | Respondent |
---
JUDGE: | His Honour Judge Carmody | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 November 2022 | |
DATE OF RULING: | 11 November 2022 | |
CASE MAY BE CITED AS: | Nathan Jack & Ors v Anthony Jasinowicz (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1918 | |
RULING ON COSTS
---
Subject:CRIMINAL LAW
Catchwords: Application for Costs – whether the County Court has jurisdiction to make costs in relation to Magistrates’ Court proceedings – reasonableness of costs for successful defendants and or appellants
Legislation Cited: Criminal Procedure Act 2009; s254, s256(2), s401; County Court Act 1958; s4, s53A
Cases Cited:Latoudis v Casey (1990) 70 CLR 534; DPP v Austin [2021] VCC 2091
Ruling: Application granted for all applicants
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr D. Sheales Mr N. Goodfellow Mr M. McLellan | Milides Lawyers Cockburn & Co Lawyers Emma Turnbull Lawyers |
| For the Respondent | Ms L. Dawson | Chief Commissioner of Police |
HIS HONOUR:
1Each of the appellants; Nathan Jack, Mark Pitt and Lisa Bartley make application, as successful defendants or appellants for the legal costs incurred by them in respect of defending the charges finalised in this Court on 3 November 2021. All parties had filed written submissions before the cost hearing on 4 November 2022.
Background
2On the 7 September 2018, the appellants were found guilty of the following charges at the Wodonga Magistrates’ Court:
Mark Pitt
· Charge 1, Engage in conduct that corrupts or would corrupt a betting outcome of an event. This is pursuant to section 195C of the Crimes Act.
· Charge 3, Possession or knowledge of information about the conduct that corrupts or would corrupt a betting outcome of an event. This is pursuant to section 195F of the Crimes Act.
Lisa Bartley
· Charge 1, Engage in conduct that corrupts or would corrupt a betting outcome of an event. This is pursuant to section 195C of the Crimes Act.
· Charge 3, Possession or knowledge of information about the conduct that corrupts or would corrupt a betting outcome of an event. This is pursuant to section 195F of the Crimes Act.
Nathan Jack
· Charge 1, Engage in conduct that corrupts or would corrupt a betting outcome of an event between 19 May and 22 May 2015. This is pursuant to section 195C of the Crimes Act.
· Charge 2, Engage in conduct that corrupts or would have corrupt a betting outcome of an event on 26 June 2015. This is pursuant to section 195C of the Crimes Act.
3Each of the appellants conducted an appeal against those findings of guilt. The appeal process had a number of procedural and preliminary trial hearings. The actual appeal hearing was conducted over 21 days in front of me. The 22nd day was judgment day which followed significant written submissions and oral argument.
4On the 3 November 2021, I dismissed the charges against Lisa Bartley and Nathan Jack at the “no case” stage. On the same day I dismissed the charges against Mark Pitt. Mark Pitt did not give evidence nor did he call any evidence in his defence.
5At the end of the appeal hearing on 3 November 2021, I gave the parties liberty to apply if they were unable to resolve the issue of costs between them. The costs of each appellant has not been resolved.
6An affidavit of Claudette Chua, solicitor for Ms Bartley, sworn on 1 November 2022, sets out the extensive efforts embarked upon to finalise the cost issue between Ms Bartley and the Commissioner of Police. A fair description of the process that those acting on behalf of the Commissioner of Police embarked upon, is “stone walling”.
7The issues in dispute between the parties to the costs operation are set out in the written submissions filed by Mr Jagdeep Jassar, Principal Advocate, on behalf of the Chief Commissioner of Police dated 5 October 2022. In summary the issues are as follows:
1) Does the County Court have jurisdiction to award costs to a successful appellant in respect of the Magistrates’ Court hearing?
2) What is the extent of the successful defendant principle as set out in Latoudis v Casey (1990) 70 CLR 534.
3) What is the appropriate scale of costs to apply to either the Magistrates’ Court or County Court proceedings.
4) Should the Costs Court determine the quantum of costs to be awarded.
8The application for costs, including Magistrates’ Court proceedings costs, are not a novel process by successful defendants or appellants in the County Court.
9Mr Jassar appeared on behalf of the Chief Commissioner of Police, in the case of DPP v Austin [2021] VCC 2091. The hearing was conducted on 23 November 2021 some 20 days after the appeals in this case were finalised. Judge D Sexton delivered his ruling in the Austin case on 17 December 2021. In Mr Jassar’s written submissions in the applications for costs before me the following is set out:
‘48. With respect to the judges at the County Court, they have been in error and acting beyond their statutory power to award costs against the Chief Commissioner of Police for matters heard and finalised at the Magistrates’ Court.
footnote 13.HH Judge Sexton’s decision in DPP v Austin [2021] VCC 2091 is not binding. It is with respect, vitiated with errors and lacks any proper analysis on the law of costs and the statutory nature of costs. References to ‘successful’ defendant failed to take into account that the defendant was unsuccessful at the Magistrates’ Court.’
10The decision of Judge D Sexton has not been reviewed or appealed by the Commissioner of Police.
11Mr Jassar did not appear for the Commissioner of Police on 4 November 2022, when the oral submissions were conducted. Instead Ms. Lucy Dawson of Counsel appeared on behalf of the Commissioner of Police. Ms Dawson, made concise and considered submissions concerning the power of the County Court to make costs orders in relation to the Magistrates’ Court hearing that precedes an appeal to the County Court. The submission was that it was a question of statutory interpretation as to the power of the County Court to make costs orders. Ms Dawson relied on the sections 3 and 131 of the Magistrates’ Court Act and sections 3, 254, 256 and 401 of the Criminal Procedure Act. Ms Dawson also tendered a five page spreadsheet setting out the respective claims made by the successful appellants and her client’s submissions where disputes arose as to quantum. Ms Dawson conceded that I had power to award “reasonable costs” to the appellants for the County Court proceedings.
12Ms Dawson submitted that this Court was not bound by Judge D Sexton’s decision in Austin’s case but conceded that consistency across the Court would be a persuasive factor in my deliberations.
Analysis
13The County Court and the jurisdiction of the court are set out in the County Court Act 1958. Section 4(1) states:
‘A court shall be held in and for the State of Victoria styled "The County Court" for the trial of offences and the trial and determination of all appeals, applications, claims, disputes and other proceedings both criminal and civil both at law and in equity as are by this or any other Act enacted to fall into and be within the jurisdiction of the court.’
14Section 53A sets out the appellate jurisdiction of this Court as follows:
‘Except where otherwise expressly provided the Court may try hear and determine all appeals referred to in sections 254, 257 and 260 of the Criminal Procedure Act 2009from convictions or orders of the Magistrates' Court and any appeal to the court by or under the provisions of any other Act and where in any Act any reference or application is made to the County Court the court shall have the same power of making orders with respect to costs and of enforcing those orders as it has in the case of appeals from convictions and orders of the Magistrates' Court.’
15The legislative provisions applicable to this case then reside in the Criminal Procedure Act 2009. Section 254 relevantly states:
Right of appeal
‘(1) Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a) the conviction and sentence imposed by the court; or (b) sentence alone.’
16Section 254(2) is not relevant in the circumstances of this case.
17Each of the appellants, Nathan Jack, Mark Pitt and Lisa Bartley were appealing against conviction or a finding of guilt and sentence. Section 256(2)(c) of the Criminal Procedure Act states:
‘(2) On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires—
….
(c) may exercise any power which the Magistrates' Court exercised or could have exercised.’
18The power of the Magistrates’ Court to make orders as to costs in summary proceedings is set out in Section 401 of the Criminal Procedure Act:
Costs in Magistrates' Court
‘(1) Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates' Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.
(2) In exercising its discretion under subsection (1) in a criminal proceeding, the Magistrates' Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the court is satisfied resulted in prolonging the proceeding.
(3) If the Magistrates' Court strikes out a charge under section 14(3), the court may award costs against the informant.’
19Mr Jassar in his written submissions relied heavily on the provision of Section 406 of the Criminal Procedure Act to submit the County Court has no jurisdiction to award costs incurred in the Magistrates’ Court by a “successful defendant”. Section 406 has the pre-conditions of a case where an appeal is struck out, dismissed or not prosecuted. None of those pre-conditions for the operation of Section 406 are relevant in this matter. The reverse is true, Ms Bartley and Mr Jack, were successful defendants on a “no case” basis and Mr Pitt was a successful defendant without “going into evidence”.
20It is a long established principle that a successful defendant is generally entitled to the reasonable costs of conducting the defence to the charges brought against them.
21In the case of Latoudis v Casey at 542 Mason CJ stated:
‘To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs.’
22In these cases, each of the successful defendants can only get to exercise the right of appeal to the County Court if they are unsuccessful defendants in the Magistrates’ Court at first instance.
23In the course of an appeal, I have the powers that a Magistrate could exercise at first instance. This means I am limited in the extent of sentencing and have discretion to order costs against or for any party to a criminal proceeding.
24In summary, the County Court has the power to award costs to a successful defendant on an appeal. Ms Dawson, submitted the Commissioner of Police agreed the Court has the power to award costs in respect of the appeal hearing.
25I find that the County Court also has the power to award costs incurred at the Magistrates’ Court proceedings to a successful defendant. The legislation cited supports this finding. The pronouncements referred to in Latoudis v Casey support this finding.
Quantum
26It was submitted on behalf of the Commissioner of Police that I could refer this matter to the Costs Court for assessment. The Commissioner of Police submission was not that the assessment of costs should be referred to the Costs Court.
27The appropriate test in assessing the quantum of costs in respect of each successful defendant is the reasonableness of those costs. This Court is not bound by any civil scale of costs when considering the reasonableness of costs involved in a criminal proceeding. A civil scale of costs may provide some guide as to reasonable costs.
Mark Pitt
28Mr Pitt was initially represented by Cockburn & Co Lawyers at the Magistrates’ Court proceedings. Emma Turnbull Lawyers acted for Mr Pitt in the early stages of the County Court proceeding. Victoria Legal Aid acted for Mr Pitt in the hearing stages of the County Court appeal.
29In respect of Mr Pitt’s reasonable costs I make the following allowances:
Magistrates’ Court Proceedings
1. Preliminary Work
Solicitor’s costs
$8,800
Counsel’s costs
$1,100
Total
$9,900
2. Contested Hearing
Solicitor’s costs
$49,500
Counsel’s costs
Preparation
$13,200
Hearing
$52,800
Total
$115,500
3. Post Contest Costs
Solicitor’s costs
$5,500
Counsel’s costs
$8,800
Total
$14,300
Total Magistrates’ Court Costs
$139,700
County Court Proceedings
Solicitor and Counsel Costs
$35,500
Costs Argument
Appearance
$500
Total County Court Costs
$36,000
30The total of the reasonable costs incurred by Mr Pitt in his successful defence of the charges against him are $175,700.
Lisa Bartley
31Ms Bartley has been represented by Cockburn & Co solicitors for the whole of the prosecution process against her.
32In respect of Ms Bartley’s reasonable costs I make the following allowances:
Magistrates’ Court Proceedings
1. Preliminary Work
Solicitor’s costs
$8,800
Counsel’s costs
$1,100
Total
$9,900
2. Contested Hearing
Solicitor’s costs
$33,750
Counsel’s costs
$35,200
Total
$68,950
3. Post Contest Costs
Solicitor’s costs
$4,400
Counsel’s costs
$1,100
Total
$5,500
Total Magistrates’ Court Costs
$84,350
County Court Proceedings
1. Preparation and Preliminary Hearings
Solicitor’s costs
$38,000
Counsel’s costs
$6,600
Total
$44,600
2. Hearing
Solicitor’s costs
$83,000
Counsel’s costs
$65,000
Total
$148,000
3. Post Hearing
Solicitor’s costs
$1,500
Counsel’s costs
$3,300
Total
$4,800
4. Costs Argument and Preliminary Matters
$24,750
Total County Court Costs
$222,150
33The total of the reasonable costs incurred by Ms Bartley in her successful defence of the charges against her are $306,500.
Nathan Jack
Magistrates’ Court Proceedings
34In respect of Mr Jack’s reasonable costs I make the following allowances:
1. Solicitor’s Costs
Preliminary Matters
$17,380
Preparation Hearing
$8,800
Attending Hearing
$32,450
Post Contest Advice
$5,500
Total
$64,130
2. Counsel’s Costs
Hearing Fees
$43,150
Circuit Expense
$3,750
Total
$46,900
Total Magistrates’ Court Costs
$111,030
County Court Proceedings
Solicitor’s costs
$16,500
Counsel’s costs
(a) 14 June 2019: 5 days preparation @ $5,500
$27,500
(b) 20-21 June 2019: 2 days appearance @ $5,500
$11,000
(c) 14 October 2019: 5 hours preparation @550
$2,750
(d) 16 October 2019: 1 day appearance @ $5,500
$5,500
(e) 24 November 2020: JR appearance
$2,750
(f) 10 -19 September 2020: 54 hours preparation @ $550
$29,700
(g) 21 days hearing @ $5,500
$115,500
(h) Preparation on ‘No case’ submission: 25 hours @$550
$13,750
(i) 3 November 2021: Decision appearance
$2,750
Total
$211,200
Counsel fees: Costs Argument
(a) Appearance Mention and 4 November 2022
$5,500
(b) Preparation of submissions: 13 hours @$550
$7,150
Total County Court Costs
$240,350
35The total reasonable costs incurred by Mr Jack in his successful defence of the charges against him are $351,380.
36In making my assessment of costs in respect of each appellant, I have included GST in the allowed sums. I have allowed the daily fee of $5,500 (GST inclusive) for Mr Sheales. I have no doubt he charges a fee of $6,600 per day to his clients in racing related proceedings. I note, Mr Kelly SC charged $4,400 for his daily fee at the Magistrates’ Court hearing. In arriving at the fee of $5,500 as a reasonable fee, I have taken into account the complexities of this particular prosecution and the particular expertise Mr Sheales brought to the case. I also note he received only minimal support from his instructor who has made a modest claim for costs which was not disputed by the Commissioner of Police.
37I order as follows:
Mark Pitt
38The Commissioner of Police pay the sum of $175,700 to Mark Pitt as the reasonable costs of successfully defending the prosecution of the charges both in the Magistrates’ Court and County Court which were dismissed on 3 November 2021.
Lisa Bartley
39The Commissioner of Police pay the sum of $306,500 to Lisa Bartley as the reasonable costs of successfully defending the prosecution of the charges both in the Magistrates’ Court and the County Court which were dismissed on 3 November 2021.
Nathan Jack
40The Commissioner of Police pay the sum of $351,380 to Nathan Jack as the reasonable costs of successfully defending the prosecution of the charges both in the Magistrates’ Court and the County Court which were dismissed on 3 November 2021.
0
3
0