Police v Bremner

Case •

[2022] NSWLC 1

•

24 June 2022

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Police v Bremner [2022] NSWLC 1
Hearing dates: 24 February, 29 November & 10 December 2021
Date of orders: 24 June 2022
Decision date: 24 June 2022
Jurisdiction:Criminal
Before: Shields LCM
Decision:

Application for costs granted and costs awarded

Catchwords:

Costs

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 213, 214

Legal Profession Uniform Law (NSW), ss 172(1) & (2)

Cases Cited:

Cachia v Hanes (1994) 179 CLR 403

Fosse v DPP [1999] NSWSC 367

Halpin v Department of Gaming and Racing [2007] NSWSC 815

JD v DPP [2000] NSWSC 1092

Latoudis v Casey (1990) 170 CLR 534

Majinski v The State of Western Australia [2013] WASCA 10

Morgan v Director of Public Prosecutions [2020] NSWSC 1605

Nguyen v Oberoi Hotels Pty Ltd [2007] VSC 196

Norton v Senior Constable Morphett & Anor (1995) 83 A Crim R 90

Category:Costs
Parties: Richard Bremner (Applicant)
New South Wales Police (Respondent)
Representation:

Counsel:
Mr C Steirn SC (Applicant)
Ms Harris, Prosecution Command, New South Wales Police (Respondent)

Solicitors:
Michael Conley (Applicant)
File Number(s): 2020/00195339
2020/00179835
Publication restriction: NIL

Judgment

  1. On 24 February 2021 the substantive charges against Mr Bremner (‘the Applicant’) and an associated application for a final apprehended domestic violence order were listed before me at the Burwood Local Court for hearing. The hearing proceeded on a second day on 29 November 2021 and concluded when the charges and the associated application against the Applicant were dismissed.

  2. Senior Counsel for the Applicant, Mr Steirn SC, then made an application for costs under s 213 of the Criminal Procedure Act1986 (NSW) (‘the Application’).

  3. I was not able to deal with the Application on the day of the hearing because of the lateness of the hour and because s 213 (5) of the Act states that the order must specify the amount of professional costs payable, and the Applicant was not in a position, on that day, to quantify or particularise the costs sought by the application. For those reasons I made directions for the service of materials quantifying the costs, and for the exchange of written submissions concerning the application, which was adjourned to 10 December 2021 for hearing.

  4. The Solicitor for the Applicant served a folder of documents quantifying the costs in respect of which an order was sought; Exhibit 1. The costs total $99,627.77 and include the following professional costs:

(1) Doolan Wagner, Family Lawyers

$27,138.42

(2) Michael Conley, Lawyers

$11,744.80

(3) Mr. C. Steirn SC

$52,030.00

(4) Mr. P.A. Rowe, Barrister

$9,075.00

  1. Between 10 December 2021 and the date of this judgment the Applicant incurred further costs concerning the Application taking the total amount claimed to $115,960.49 made up as follows:

(1) Doolan Wagner, Family Lawyers

$46,015.49

(2) Counsel

$69,945.00

  1. Both parties filed written submissions concerning the application, and the Applicant filed written submission in reply dated 21 June 2022.

The Proceedings

  1. To determine the Application it is necessary to understand the background including the nature of the alleged incident, the complainant’s dealings with Police and the history of the proceedings.

  2. The proceedings against the Applicant arose out of an alleged incident on Friday 22 May 2020, when he went to the home of his former spouse, Ms Helen Bremner (‘the Complainant’), to pick up his two children in accordance with an Order of the Federal Circuit Court exercising jurisdiction under the Family Law Act 1975 (Cth). The children entered the Applicant’s car, and it was alleged that the Applicant drove away as the Complainant reached into the car through the rear passenger side window to say goodbye to one of the children causing the car to strike the Complainant.

  3. The incident was first reported to Police on 29 May 2020 and Senior Constable Karazinov and another officer went to an address in Hunters Hill and spoke with the Complainant. Senior Constable Karazinov made notes when he spoke to the Complainant and he subsequently created a COPS entry concerning the incident, which was tendered in the proceedings generally (VD-3 later EXH 1). The COPS entry contains a narrative, and the relevant parts are as follows:

‘On Friday 22nd May 2020, the POI attended the VIC’s address to pick up the children as it was prearranged due to Family Law Court order currently in place. As the children were leaving the VIC leaned up against the car and the POI drove away.

The VIC stated that when reaching into the vehicle to say goodbye that the window hit her ribs and she managed to get out of the way. The VIC did not sustain any injuries at the time although she stated she was sore days later. The VIC reported the matter to Police one week after the alleged incident and stated she did not report the matter as she did not know what to do. The VIC also informed Police that she did not think that the POI did it on purpose or with any intent.

Police attended the POI’s address and spoke with him at his address in Lane Cove. The POI informed Police that he was unaware that the incident occurred and said he would never do such a thing on purpose.

Due to the conflicting versions, along with VIC believing accidental and the POI informing Police he was unaware it has occurred, Police will not investigating (sic) any further.

The VIC has no fears for her safety and no ADVO will be applied for.’ (underlining added)

  1. Senior Constable Karazinov also gave evidence in the proceedings on a Voir Dire to determine the Applicant’s objection to the use of DVEC video later given by the Complainant, and his evidence on the Voir Dire was later admitted in the proceedings generally (T1; p 16 – 26). The substance of Senior Constable Karazinov’s oral evidence was the same as the content of the COPS entry. The gravamen of Senior Constable Karazinov’s evidence was that based on what the Complainant had told him, including that she did not think the incident was intentional, the absence of any injury, and the account given by the Applicant, he did not think that an offence had been committed or any action needed to be taken.

  2. On the Voir Dire referred to above the evidence established that in or about mid-June 2020 the Complainant again contacted Police and provided to them a chain of emails that included correspondence with a solicitor representing her in the Family Law proceedings with the Applicant that sought to re-agitate the incident on 22 May 2020. That material was initially received by Senior Constable Bertoldo who, on 16 June 2020, forwarded it to Senior Constable Natalie Smith of the Ryde Police Area Command, who ultimately became the Officer-in-Charge (‘the OIC’) concerning the prosecution of the Applicant. Senior Constable Smith then made contact with the Complainant who attended Gladesville Police Station, in company with her eldest son. The Complainant participated in a DVEC interview (‘the DVEC’) and the child also participated in a separate video interview.

  3. The Complainant’s DVEC was played on the Voir Dire, and it became immediately apparent from her answers that:

  1. Between 29 May 2020, when she first dealt with Police, and the point at which the matter was re-agitated with Police in mid-June, the Complainant had discussed the matter with a range of different people including un-named friends, her Family Law solicitor and a doctor, who all apparently encouraged her to again take the matter to Police. The Complainant also discussed the events with her children, who were in the car at the time of the alleged incident; and

  2. The Complainant’s account of the incident had changed in significant and material ways apparently as a result of those discussions. The changes included:

  1. Now characterising the incident as deliberate rather than unintentional, expressly and solely as a result of the discussions with the eldest child; and

  2. A claim of injury to her foot as a result of it having been run over by the car, where no such claim was made to or recorded by Senior Constable Karazinov;

  3. The proffering of further witnesses to the incident in contrast to previously identifying none; and

  4. Claiming that she had fears concerning the Applicant, in contrast to saying to Senior Constable Karazinov that she had none.

  1. The Applicant was subsequently charged with the offences alleged in these proceedings and named as the defendant in an application for a final apprehended domestic violence order.

  2. On the first day of the hearing, on 24 February 2021, Senior Counsel for Applicant objected to use of the DVEC on two bases;

  1. The DVEC was not a recorded statement within the meaning of s 289D Criminal Procedure Act because it was made 24 days after the incident and therefore not as soon as reasonably practicable after the commission of the alleged offence; and

  2. The DVEC should be excluded under s 137 Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the Applicant, resting upon the material changes in the account given by the Complainant and the contamination of the evidence in the DVEC through the Complainant’s discussion of incident with other people and witnesses.

  1. Ultimately, and for the reasons set out in the transcript (T1; p 38-42), I concluded that the DVEC should be excluded on both bases.

  2. The prosecution then proposed to call oral evidence from the Complainant, however, due to both the time of day, and the fact that the Complainant declined to give evidence if she could not be accompanied in the witness box by a dog, which the Sheriffs, in the proper exercise of their discretion to control entry to the Court, had refused to admit, the proceedings were adjourned part heard to another day.

  3. The further hearing of the matter was unfortunately rescheduled because of the change to this Court’s listings as a result of the COVID pandemic. Ultimately, the matter recommenced before me on 29 November 2021, in excess of eight (8) months after the first day of the hearing; a date that was allocated with priority because of apparent urgency associated with the continuing Family Law proceedings between the Applicant and the Complainant.

  4. On 29 November 2021 two further difficulties arose:

  1. The prosecution proposed to call the Complainant to give oral evidence, and Senior Counsel for the Applicant objected because no statement had been served on the defence in compliance with s 188 Criminal Procedure Act, despite the intervening eight (8) months during which the proceedings had stood adjourned. The Prosecutor then applied to waive the requirement for service of a statement that was not then in existence, which was ultimately refused for the reasons set out in the transcript (T2; p 18-22); and

  2. The Complainant was again accompanied by the dog, which the Sheriff’s had again refused to allow into the Court, apparently with the result that she would not give evidence in any event, and she did not.

  1. The prosecution then continued by calling each of the Complainant’s children to give evidence in the case against the Applicant, and two further witnesses, Ms Lee and Ms Thorburn, who both claimed to have been present on 22 May 2020 and witnessed the incident to different degrees. The evidence given by each of the children, and by Ms Thorburn, revealed further details about the extent of the contamination of the evidence by the Complainant and others talking about the incident, and also further irregularities concerning the conduct of the investigation including:

  1. The eldest child revealing that:

  1. When he accompanied the Complainant to the Police Station in mid-June 2020, the OIC discussed the events with the Complainant in his presence and before either of them proceeded to participate in their recorded interviews (T2: p 46, lines 34-45); and

  2. He had discussed the incident with the Complainant in detail after he had returned from the weekend visit with the Applicant commencing on 22 May 2021 (T2: p 49, lines 31-35);

  3. That he had discussed the incident with the Complainant and Ms Lee and Ms Thorburn many times before he gave his account to the Police (T2: p 50, lines 37-50).

  1. The youngest child revealing that:

  1. He had discussed the incident with the Complainant after he had returned from the weekend visit with the Applicant commencing on 22 May 2021 (T2: p 60, lines 30-31);

  2. The OIC came to the Complainant’s home and took versions from the Complainant, the elder child and from him in his presence before he later went to the Police Station and participated in his recorded interview (T2: p 65, line 6 to p 68, line 35).

  1. At the conclusion of the prosecution case Senior Counsel for the Applicant made an application that charges be dismissed on the basis the extent of the contamination of the evidence between the prosecution witnesses and the inconsistent accounts given by the Complainant to Senior Constable Karazinov and later in the DVEC that the evidence could not safely support a conviction. The prosecution conceded the application and the charges were dismissed. The application for a final apprehended domestic violence order, which relied on the same evidence, was also dismissed (T2: p 86 line 45 to p 89, line 14).

Legislation

  1. Sections 213 and 214 of the Act are, relevantly in the following terms:

213   When professional costs may be awarded to accused

(1)    A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2)    The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

(3)    Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:

(a)  the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b)  the matter is withdrawn or the proceedings are for any reason invalid.

(4)      (Repealed)

(5)    The order must specify the amount of professional costs payable.

214   Limit on award of professional costs to accused person against prosecutor acting in public capacity 

(1)    Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a)  that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b)  that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c)  that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d)  that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

….

  1. The Police concede that the discretion under s 213 is enlivened because the charges were dismissed.

  2. The Applicant’s written submissions put the Application on the basis that:

  1. The investigation into the offences was conducted in an unreasonable or improper manner within the meaning of s 214(1)(a); and

  2. The prosecutor unreasonably failed to investigate (or to properly investigate) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought. (Submissions at [1]).

  1. The Applicant particularises the unreasonable failure to investigate in four (4) ways. The OIC:

  1. Failed to interview and consult with Senior Constable Karazinov, who had investigated the original complaint and determined that no action should be taken;

  2. Failed to question the Complainant about, or investigate, the inconsistent version originally given to Senior Constable Karazinov;

  3. Interviewed the Complainant in front of and in the hearing of the two children, who were relevant and vulnerable witnesses, and interviewed both of the children in front of the Complainant resulting in contamination and cross-contamination of all three witnesses; and

  4. As an alternative to (3) above, recklessly and indifferently interviewing each of the three witnesses in each other’s presence thereby causing contamination and cross-contamination of the alleged version resulting in the investigation being conducted in an unreasonable or improper manner.

Principles

  1. The Application is to be determined on the balance of probabilities; Evidence Act, s 141(2).

  2. The test of whether an investigation is unreasonable or improper is purely objective; JD v DPP [2000] NSWSC 1092, at [31]. An investigation can be unreasonable or improper even if it does not fall grossly below optimum standards and, conversely, an investigation which fails to meet optimum standards is not necessarily unreasonable; JD v DPP, at [31].

  3. General principles concerning the discretion to award costs after a summary hearing were considered by the High Court in Latoudis v Casey (1990) 170 CLR 534. That case concerned costs under s 97(b) of Magistrates (Summary Proceedings) Act 1975 (Vic), which granted to the Court an unconstrained statutory discretion to order costs against a prosecutor, and for which there were no stated relevant considerations or criteria. The legislation, and therefore the discretion, considered by the High Court in Latoudis v Casey was substantially different to the current provisions in the Act, and some care is necessary when applying the general statements of principle to ss 213 and 214 of the Act. Section 214 is a provision of a kind that was absent in the Latoudis v Casey, and is a plain and express statutory proscription against an award of cost unless the applicant establishes to the satisfaction of the Court one or more of the matters is sub-paragraphs (a) to (d).

  4. In Fosse v DPP [1999] NSWSC 367 Wood CJ at CL considered the decision in Latoudis v Casey in the context of statutory provisions akin to ss 213 and 214 of the Act. Wood CJ at CL held, at [16], that ‘the onus rested on [the applicant] to bring the case within an exception to the general rule laid down by the section that costs are not to be awarded in favour of a defendant to proceedings in the Local Court’. His Honour then said:

There is no entitlement to costs as of right in criminal proceedings, the common law principle historically being that the Crown neither pays nor receives costs: Latoudis v Casey (1990) 170 CLR 534 and Le Boursicot (1994) 79 A Crim R 549.

In Latoudis Mason CJ said that this rule could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings. That discretion, however, is exercisable only within the limits provided by the relevant statutory provision, in this case S 81(4) which provides that costs are not to be awarded in favour of a defendant unless one of the four circumstances specified is shown to exist. Subsection (4) was added after Latoudis and it negatives the majority view, in that case, that generally when a prosecution fails an order should be made that the defendant’s costs be paid by the prosecution.

  1. In relation to contamination and collusion, the principles and significance of such conduct are well summarised in judgment of Martin CJ in Majinski v The State of Western Australia [2013] WASCA 10 as follows:

‘[29] In R v Momodou [2005] EWCA Crim 177; [2005] 2 All ER 571; [2005] 1 WLR 3442, Judge LJ, in delivering the judgment of the Court of Appeal of England and Wales, said:

There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see R v Richardson [1971] 2 QB 484, R v ArifThe Times, 22 June 1993, R v Skinner (1993) 99 Cr App R 212 and R v Shaw [2002] EWCA Crim 3004. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so [61].

...

[32] Questioning of a witness moves beyond 'proofing' to impermissible 'coaching' when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness: HKSAR v Tse Tat Fung; R v Momodou. A solicitor or counsel should not advise a witness as to how to answer a question: Re Equiticorp Finance Ltd; Ex parte Brock. By way of example, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 the defendant's solicitors prepared an extensive document for the defendant outlining 'possible areas of questioning, (to be passed on to the respective witnesses)' and included suggestions as to appropriate responses which would be in line with the defendant's case [22]. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and 'tainted' the defendant's case [182].’

Consideration

  1. The terms of s 214(1) clearly state, and the decision in Fosse v DPP establishes, that costs are not to be awarded in favour of a defendant unless one of the four circumstances specified in s 214(1)(a) to (d) is shown to exist.

  2. The written submissions of the Applicant advance the Application based on ss 214(1) (a) and (c). Those grounds are both concerned with reasonableness (or propriety) of the investigation, however they are of course separate, and involve different considerations as sub-section (c) focusses upon the reasonableness of the investigation with an emphasis on the discovery of exculpatory matters; although the Applicant’s written submissions conflate both grounds and address them without clear distinction. Each ground nevertheless requires separate consideration; Morgan v Director of Public Prosecutions [2020] NSWSC 1605, at [34].

  3. On the evidence before the Court the OIC did not:

  1. Engage with or consult with Senior Constable Karazinov concerning his initial investigation or determination;

  2. Question, or in any way challenge, the Complainant about, or otherwise investigate, the material and significant inconsistencies between the account originally given to Senior Constable Karazinov and the later version given in the DVEC on 17 June 2020;

  3. Properly interview the Complainant, or the two children, as she apparently informally spoke with each about the incident in the presence of and in the hearing of the others resulting in contamination and cross contamination of their respective accounts;

  1. It is clear from the evidence of Senior Constable Karazinov that he did not know what occurred after the Complainant contacted Police again in mid-June 2020 and he was not involved in the further enquiries by Senior Constable Natalie Smith leading up to the commencement of the prosecution of the Applicant (T1, p 58, line 25).

  2. The fact and narrative of Senior Constable Karazinov’s involvement is the first entry in the COPS record concerning the incident, and it was known to the OIC, as she herself made further entries into the COPS record on 17 June 2020 as a result of her dealings with the Complainant on that day. Even a cursory comparison of the entry made by Senior Constable Karazinov with the account apparently given to the OIC in the DVEC taken on 17 June and summarised in the subsequent entry in the COPS record reveals the significant change and differences. In that context it is also significant that the OIC’s dealings with the Complainant on 17 June 2020 occurred after she received the email chain provided by the Complainant that revealed the fact that other people had become involved with the Complainant concerning the incident, including the solicitor representing the Complainant in the Family Law proceedings, and that email chain itself contained a significantly different account of the incident to that given to Senior Constable Karazinov. The combination of all of those matters placed the OIC on clear notice that:

  1. The original account given to Senior Constable Karazinov was exculpatory and it was his view that no action was justified or necessary;

  2. The Complainant had taken the matter up with a number of other people, including her Family Law solicitor, and their dealings with the Complainant were a factor in the Complainant seeking to re-agitate the matter with Police; and

  3. The account of the incident then given by the Complainant had changed in significant and material ways to the apparent detriment of the Applicant.

  1. In those circumstances the OIC’s failure to take any step to consult with Senior Constable Karazinov is inexplicable and I have no difficulty in concluding it was both:

  1. Unreasonable within the meaning of s 214(1)(a); and

  2. An unreasonable failure to investigate matters known to her which suggested the Applicant might not be guilty and which could also be a proper reason why the proceedings should not be brought within the meaning of s 214(1)(c).

  1. In relation to the failure to question, or in any way challenge, the Complainant about, or otherwise investigate, the material and significant inconsistencies between the account originally given to Senior Constable Karazinov and the later version given in the DVEC on 17 June 2020, once again the OIC was on clear notice of the changes and the circumstances in which those changes had occurred. Those matters directly raised the issue of whether the account now given by the Complainant was truthful and reliable and therefore were a proper basis upon which charges might be brought against the Applicant. In that context it is also significant the change in the Complainant’s account occurred against the background of the Family Law proceedings in which the Complainant was seeking sole custody of the children, after and with the apparent involvement of the Complainant’s Family Law solicitor and in circumstances where if the Applicant were convicted of domestic violence offences s 60CC of the Family Law Act would apply against his position in the resolution of the custody dispute.

  2. This was not a situation that could be explained as someone who had given an early account to Police and at a later stage fills in more detail. Rather it was a known and explicit case of a person who gives one account to Police and then discusses the matter with other people, including a solicitor representing her in contested Family Law proceedings and other witnesses, and then gives a further and materially changed account. In those circumstances the OIC’s failure to take any step to question or challenge the Complainant’s changed account, or otherwise investigate it, is inexplicable and I have no difficulty in concluding it was both:

  1. Unreasonable within the meaning of s 214(1)(a); and

  2. An unreasonable failure to investigate matters known to her which suggested the Applicant might not be guilty and which could also be a proper reason why the proceedings should not be brought within the meaning of s 214(1)(c).

  1. In relation to the manner and circumstances in which the OIC spoke to and later interviewed the Complainant and the children described above, that conduct could only, and inevitably, seriously taint their evidence in a way that made it unsafe to act upon, and became the main reason why the proceedings against the Applicant were dismissed. Such conduct is antithetical to any conception of a reasonable or proper investigation for the reasons expressed in Majinski v The State of Western Australia, and it cannot and should not be condoned by this Court. That conduct is also inexplicable and I again have no difficulty in concluding it was both unreasonable and improper within the meaning of s 214(1)(a).

  2. One additional matter that should be considered is that prosecutor’s submissions in opposition to the Application contend that a number of the matters referred to above were not put to either the OIC or Senior Constable Karazinov. Each of those officers gave evidence on the Voir Dire held to determine the Applicant’s objection to the use of the DVEC, which was not concerned with the issues arising on this Application. Neither officer was:

  1. Recalled by the prosecution in the principal proceedings, including after a number of the matters now relied upon by the Applicant became explicit through the evidence of the prosecution’s witnesses to address those matters; or

  2. Called to give evidence in this Application, despite discussion at its commencement about whether it was necessary to do so, with the Prosecutor ultimately stating that she would rely on her submissions because ‘I don’t think I can remedy it any further by calling her [the OIC]’ (T3, p 5, lines 44-45).

  1. The respective positions of the parties were well exposed through the written submissions exchanged prior to the hearing of the Application, such that if either party wanted or needed to call evidence about any issue they were on clear notice. Ultimately the Prosecutor made a forensic decision not to call any evidence on the Application and in the circumstances I do not think that there is any relevant unfairness as a result.

Quantum

  1. Section 213(2) provides that the amount of the professional costs is the amount that the Court considers to be just and reasonable.

  2. Exhibit 1 on the Application contains various documents concerning the costs expended by the Applicant in his defence of these proceedings, including costs agreements with his lawyers and detailed bills of costs and disbursements rendered to him. The Prosecutor has not called any evidence concerning those matters.

  3. The Applicant submits the Court should have regard to s 172 of the Legal Profession Uniform Law (NSW) and the obligations it imposes on legal practitioners in determining the amount of costs that are just reasonable. Section 172(1) provides that a law practice must charge costs that are no more than fair and reasonable in the circumstances and which are proportionately and reasonably incurred and proportionate and reasonable in amount. Section 172(2) sets out various factors when determining whether the costs satisfy s 172(1), and reliance is placed on the factors identified in sub-paragraphs (a), (b) and (c) concerning the skill, experience, specialisation and seniority of the lawyers, the complexity or difficulty of the issues and the labour and responsibility involved. Section 172(4) provides that a costs agreement that is compliant with the Legal Profession Uniform Law (NSW) is prima facie evidence that costs disclosed in it are fair and reasonable. In this way the Applicant contends that the costs agreements and the costs and disbursements charged are prima facie ‘fair and reasonable’ within the meaning of the Legal Profession Uniform Law (NSW), and, a fortiori, are therefore ‘just and reasonable’ for the purposes of s 213(2); and particularly in circumstances where, as in this case, the prosecutor has not traversed in evidence the quantum of the costs, which would then amount to a complete indemnity.

  4. Despite the obvious textual difference between ‘fair and reasonable’ in the Legal Profession Uniform Law (NSW), and ‘just and reasonable’ in s 213(2), there is to my mind no material difference in the considerations that apply or in the ultimate assessment; although it must be acknowledged that s 172(4) gives rise to a prima facie presumption that might later be displaced on a full assessment of the costs.

  5. It has long been accepted that while the costs in this context are in the nature of an indemnity, it is not a complete indemnity, and it is an error to read the decision in Latoudis v Casey as requiring one: Cachia v Hanes (1994) 179 CLR 403, at 410 – 411 (1994) 120 ALR 385, at 388; Nguyen v Oberoi Hotels Pty Ltd [2007] VSC 196, at [38]. In Norton v Senior Constable Morphett & Anor (1995) 83 A Crim R 90 Hayne JA said in relation to the costs that might be awarded:

‘The central plank of the appellant's submissions was that it followed from Latoudis v Casey (1991) 170 CLR 534 that a successful defendant is ordinarily entitled to an order for costs which will indemnify that defendant in respect of the amount payable by the defendant to his or her legal practitioner. It was said that it followed that in exercising the discretion conferred by s131 of the Magistrates' Court Act 1989, a magistrate should ordinarily fix the costs allowed to a successful defendant in an amount that would give the defendant indemnity in that sense - enough to recompense the defendant for the sum which he or she is bound to pay the legal practitioner concerned. Thus, where, as here, the defendant had made an agreement with a legal practitioner that governed how much that practitioner would charge, the order for costs should ordinarily be for the amount determined under that agreement, because it is to be presumed that those costs are fair and reasonable.

As Phillips, JA has pointed out, the question that fell for determination in Latoudis v Casey was when should an order for costs be made in favour of a successful defendant, not how should those costs be fixed. It was, as Mason, CJ put it (170 CLR at 537) "what if any, are the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant." That is not the question which it is sought to agitate now. It is not disputed that the defendant should have had an order for costs in his favour. The question is how much should the Magistrate have allowed for those costs.

The law has long spoken of costs being an "indemnity" to a successful party. Thus in Cachia v Hanes (1994) 179 CLR 403 at 410, it was said that "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 expenses of his travell and losse of time'. [Coke, Second Part of the Institutes of the Laws of England (1797), at 288...]" per Mason, CJ, Brennan, Deane, Dawson and McHugh, JJ.

However, as the parenthetical reference to accuracy requiring the qualification of the word "indemnity" by "partial" makes plain, it has long been recognised that the "indemnity" of which the law so often speaks in connection with an award of costs is commonly not complete.’

  1. Those authorities all predate the passage of the Legal Profession Uniform Law (NSW) and I have not been taken to, or otherwise located, any decision that deals with the relationship between the costs provisions in the Legal Profession Uniform Law (NSW) and the costs provisions in the Criminal Procedure Act; although the same issue arose in Norton v Senior Constable Morphett & Anor in a different statutory context, and should be resolved in the same way for the reasons there expressed. Section 213(3) requires this Court to assess the quantum of the costs and reach a conclusion that they are just and reasonable, and that obligation is not displaced or rendered otiose by the provisions of the of the Legal Profession Uniform Law (NSW).

  2. I have no difficulty concluding that the costs claimed by the Applicant are supported by what appear to be costs agreements that comply with the Legal Profession Uniform Law (NSW) and are for the purposes of that act prima facie fair and reasonable costs. I also have no difficulty in concluding that the retention of Senior and Junior Counsel was reasonably necessary for the attainment of justice given the nature of the matters before the Court, based on the matters set out in the statutory declaration of Olgica Najdenska dated 8 December 2021; Nguyen v Oberoi Hotels Pty Ltd, at [28].

  3. Nevertheless s 213 requires this Court in the exercise of its discretion to determine an amount that is just and reasonable in the context of the authorities set out above that state while the costs to be awarded are in the nature of an indemnity, that indemnity is rarely complete.

Conclusion

  1. For the reasons set out above I am satisfied that the Applicant has proved to the requisite standard matters within both ss 214(1)(a) and (c) of the Criminal Procedure Act and that in consequence it is appropriate to order the Prosecutor to pay his professional costs.

  2. I assess the just and reasonable amount of the Applicant’s professional costs at $100,000, and I would make a full allowance out of that amount for Counsels fees.

Orders

  1. I order the Prosecutor to pay to the Registrar of this Court, for payment to the Applicant, professional costs in the amount of $100,000.

**********

Decision last updated: 02 September 2022

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

12

Statutory Material Cited

2

Cachia v Hanes [1994] HCA 14
Cachia v Hanes [1994] HCA 14
Fosse v DPP [1999] NSWSC 367