Police v Horsfield; Police v Dowd
[2013] NSWLC 17
•10 October 2013
Local Court
New South Wales
Medium Neutral Citation: Police v Horsfield; Police v Dowd [2013] NSWLC 17 Hearing dates: 9/9/2013, 13/9/2013 Decision date: 10 October 2013 Jurisdiction: Criminal Before: Buscombe LCM Decision: Costs awarded in favour of the accused persons
Catchwords: COSTS - criminal proceedings - where successful accused persons represented by Legal Aid Commission and Aboriginal Legal Service - nature of retainer between solicitor and accused person - whether award of costs available - court to assume existence of retainer and that solicitor may look to accused person for payment of their costs - evidence to the contrary required to challenge that assumption - onus of proof lies upon party who seeks to challenge nature of retainer Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Justices Act 1902
Legal Aid Commission Act 1979Cases Cited: Bolton v Stange [2001] WASCA 34
Hawksford v Hawksford [2005] NSWSC 463
Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152
Latoudis v Casey (1990) 170 CLR 534
Lenthall v Hillson [1933] SASR 31
Police v Turley (Local Court, unreported, 25 July 2013)
Wentworth v Rogers (2006) 66 NSWLR 474Category: Costs Parties: Police
Tyron Horsfield
Nathan DowdRepresentation: Mr S Boland for Mr Horsfield
Mr B Pierce for Mr Dowd
File Number(s): 2012/317795, 2012/317802
Judgment
On 9 September 2013 I delivered a judgment in which I excluded under s 138 of the Evidence Act1995 all of the prosecution evidence relied upon to support the charges brought against the two accused. Both accused through their respective counsel made applications for costs orders under the Criminal Procedure Act1986.
Mr Dowd was represented by Mr Pierce of counsel who was, as I understand it, engaged through the Legal Aid Commission. Mr Horsfield was represented by Mr Boland of counsel, who had been engaged through the Principal solicitor of the Aboriginal Legal Service (the ALS). I was told that both Mr Pierce and Mr Boland practise as private barristers at the NSW Bar. Mr Pierce handed up to me his memoranda of fees which he indicated related to his conduct of the proceedings on behalf of his client.
Mr Boland was not in a position to hand up his memoranda of fees at that time and made submissions about the amount that was claimed. Upon the making of the costs applications, the police prosecutor handed up a document described as a decision of my brother magistrate, Dunlevy LCM, in a matter of Police v Turley (unreported, 25 July 2013). The police prosecutor relied upon that decision to resist the costs application brought on behalf of Mr Boland's client. When the document was handed up to me, I noted that it appeared to be typed notes of his Honour's decision rather than the full judgment. From the notes that were handed up of the decision, it appeared his Honour held that as, on the evidence before him, the successful accused was represented by the Aboriginal Legal Service and was not required to pay legal fees to that service, any costs application must fail.
I adjourned the matter to the following Friday, 13 September 2013, to allow the parties to put before me a copy of his Honour's judgment together with any evidence that they wished to tender on the costs application, and any further submissions. I received from Mr Boland his memoranda of fees for appearing in the proceedings. I was not provided with any evidence or information about the nature of the retainer that the ALS had with Mr Horsfield. Nor was I provided with any evidence about the nature of the ALS organisation. Due to my other hearings that day, I was only in position to hear brief oral submissions from the parties and adjourned the matter until today. I did indicate that the parties were at liberty if they wished to forward further written submissions. I did receive written submissions from Mr Boland.
No submissions have been made on behalf of the Police in response to the application for costs brought on behalf of Mr Dowd. The only basis of the opposition to the application for costs brought on behalf of Mr Horsfield has been that he was represented by the ALS, relying upon Dunlevy LCM's decision in Turley.
The statutory provisions
Section 213 of the Criminal Procedure Act provides as follows:
(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.
(5) The order must specify the amount of professional costs payable
"Professional costs" are defined in s 211 of the Criminal Procedure Act as follows:
In this Part: "professional costs" means costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court.
Section 3 of the Criminal Procedure Act provides a definition of the term "accused person" and is in the following terms:
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: "accused person" includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person.
Section 214 of the Criminal Procedure Act provides in effect a fetter on the court's discretion to award costs to a successful defendant in summary criminal proceedings. The section was introduced to overcome the majority decision in Latoudis v Casey (1990) 170 CLR 534. The section relevantly provides as follows:
(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.
(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.
Relevant Cases and submissions
Although the parties were not able to provide me with a copy of Dunlevy LCM's actual judgment, I have since been able to obtain a copy. It appears from a reading of his Honour's judgment that his Honour was provided with some evidence, or there was some agreement between the parties, as to the legal nature of the ALS, and also the nature of its retainer with its clients in criminal proceedings, and in particular with the retainer that was in place with the successful defendant in the proceedings before his Honour.
No such evidence or agreement was put before me. I do not have any evidence as to the nature of the retainer between Mr Horsfield and the ALS. I also note that there is no suggestion in his Honour's judgment that the ALS had, in the proceedings before him, engaged private counsel.
Dunlevy LCM held that the reference to an "accused" in s 213 could not be construed as including a reference to the ALS or an Australian legal practitioner employed by the ALS. His Honour was of the view that the provision was drafted "with a more traditional view towards the method by which solicitors are engaged, and in particular a method of engagement whereby a solicitor is retained by a client whom then signs a costs agreement where it is envisaged that invoices will ultimately issue to the accused person. It is also drafted seemingly by reference to the traditional practise where solicitors instruct counsel and thus incur disbursements..."
His Honour noted in his judgment that there is a specific provision of the Legal Aid Commission Act concerned with applications for costs by legally aided persons. This was an apparent reference to s 42 of the Legal Aid Commission Act 1979. His Honour considered that the existence of such a provision suggested "the fundamental starting point is that an organisation providing legal services to a party who is not obliged to pay them is not in the ordinary course entitled to apply for costs".
His Honour was also of the opinion that the purpose behind the award of costs was "to indemnify a successful party against losses that they have incurred as a result of having to pay legal fees". On the evidence before his Honour, Mr Turley was not liable to pay any legal costs to the ALS and so there was nothing to indemnify him for, hence no order for costs could be made.
Mr Boland of counsel stated that Dunlevy LCM's decision was in error and was inconsistent with a decision of Justice Templeman of the Supreme Court of Western Australia in Bolton v Stange [2001] WASCA 34.
Bolton v Stange was an appeal from a decision of a Western Australian Magistrate not to award costs in favour of a successful defendant in summary criminal proceedings in Western Australia. The appellant in that case had been represented by the ALS before the Magistrate, and at the end of the proceedings the ALS solicitor had made an application for costs. In the course of the costs application the Magistrate had said, "Your funding comes from the government. I see it as a fruitless exercise to tell the government to take money out of one pocket and put it in another". In his reasons for rejecting the costs application the Magistrate said; "The complaint is dismissed and as to costs I do not believe in the circumstances that an order is warranted. This is a shorthand way of pursuing my previous practice. Until someone tells me it is wrong, it is a practice I intend to follow".
Templeman J referred to the relevant Western Australian legislative provisions and observed that the Magistrate had a discretion as to costs. Templeman J noted that the accused's retainer in that case was governed by cl 42 of the constitution of the Aboriginal Legal Service of WA Inc. His Honour at [6] said;
Clause 42 provides that costs incurred by the association in the provision of legal assistance are deemed to be costs incurred by the applicant for that assistance, for the purpose of any application for an order for costs. However, this point did not arise in the present case, because the learned Magistrate did not decline to make an order for costs on the basis that the costs were not due and payable.
[7] Indeed, it would not have been open to the learned Magistrate to inquire into the relationship between the appellant and his legal representative. That is because there is a deemed retainer in the absence of proof of any express agreement that costs will not be paid. In other words, if an accused person is represented by a legal practitioner - from the Aboriginal Legal Service or anywhere else- the Court must assume that the relationship of solicitor and client exists between them with a consequential obligation to pay such costs as may be due.
Templeman J in making the observations in [6] and [7] of his judgment relied upon Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152. Pincus J in Hudgson expressed the opinion that a "court will hold, in the absence of proof of an express agreement to the contrary, that a solicitor who acts upon instructions for a party on the record is taken to be entitled to look at that party for costs, even if the instructions have come to the solicitor from another party or from some non-party interested in the litigation. The doctrine is one of a deemed retainer". Pincus J makes clear that there is an onus on the party seeking to challenge the nature of the retainer.
Pincus J's approach was considered by Campbell J in Hawksford v Hawksford [2005] NSWSC 463 in particular at [46] to [49]. The approach of Campbell J in Hawksford was consistent with the approach of Pincus J in Hudgson.
Resolution of the issue concerning whether or not a person represented by the ALS is able to bring a costs application under s 213 of the Criminal Procedure Act.
I set out earlier the observations of Templeman J in Bolton v Stange. The approach his Honour there took to the issue of the nature of the retainer of an accused is consistent with that taken by Pincus J and Campbell J in the context of civil litigation.
As I understand that approach, the Court is to assume, absent evidence to the contrary, that there is a retainer between the solicitor concerned and the accused, and that the solicitor concerned may look to the accused for payment of the accused's costs. The party that seeks to challenge the nature of the solicitor's retainer bears the onus of proving that the nature of the retainer is not consistent with the assumption that is referred to in the cases I have reviewed.
As I noted earlier in this judgment, I have no evidence concerning the nature of the retainer between Mr Horsfield and the ALS. I do know from what I was told by Mr Boland, and from his tax invoice that is before me on the costs application, that he is a private counsel instructed by the Principal Solicitor with the ALS, and looks to that service for the payment of his fees. What I do not know is the nature of the retainer Mr Horsfield had with the ALS.
Consistent with the authorities I have referred to, the Police bore the onus of adducing evidence to overcome the assumption about the nature of the retainer between Mr Horsfield and the ALS. That onus was not discharged here as the Police adduced no evidence as to the nature of that retainer despite being given an opportunity to do so. I do not think I can simply assume, absent evidence, that the nature of the retainer that Dunlevy LCM found existed between the ALS and Mr Turley, was the same as that which existed between Mr Horsfield and the ALS. For one thing, counsel was briefed in Mr Horsfield's matter and not in Mr Turley's matter. For all I know, the ALS may approach the representation of clients and their retainers on an individual basis, especially where a decision is made to engage private counsel to appear for an accused.
For these reasons, I reject the Police submission that because Mr Horsfield was represented by the ALS, his application for costs should be refused. In my opinion Mr Horsfield was an "accused" person within the meaning of that term as defined in the Criminal Procedure Act. He was entitled to bring an application for costs through his counsel, under s 213.
It will be apparent that I have decided this issue on a rather narrow basis. In deference to the submissions that were advanced, and the arguably important issue raised, given the frequency with which the ALS appears in the Local Court, I propose to say a little more in relation to the submissions that were advanced.
Mr Boland referred to Latoudis v Casey (1990) 170 CLR 534. In particular he referred to the following passage in Mason CJ's judgment at 543:
The availability of legal aid might be regarded as a possible reason for refusing to award costs. But no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event, courts have traditionally made orders for costs without regard to considerations of that kind.
In my opinion Mason CJ's views are consistent with the cases I have referred to above in relation to the Court not assuming that a person is not required to be responsible for the payment of a lawyer's fees. His Honour's comments, which were clearly obiter, do however go further and suggest that the fact a person is a legally aided person is not a bar to bringing a costs application as a matter of principle. I note, however, I have no evidence before me that Mr Horsfield, who was represented by the ALS, had entered a similar or identical retainer to a legally aided accused.
The majority of the High Court in Latoudis v Casey expressed the opinion that in both criminal and civil proceedings costs are not awarded by way of punishment of the unsuccessful party. They are awarded to indemnify the successful party against the expense to which that party has been put by reason of the legal proceedings; see Mason CJ at 543,Toohey J at 562-563, and McHugh J at 567.
Latoudis v Casey was decided prior to the introduction of s 81A of the Justices Act1902, which was the forerunner of s 214 of the Criminal Procedure Act. Given what is required to be found in order to make an order for costs against a prosecutor not acting in a private capacity under s 214, there may well be an argument that awards of costs under the Criminal Procedure Act against a prosecutor are not solely to indemnify a successful party. That is because there might be said to be an element of fault contained in the sub-paragraphs of s 214(1). It is unnecessary in the circumstances for me to come to a final conclusion in relation to that issue.
Wentworth v Rogers (2006) 66 NSWLR 474 was referred to both before Dunlevy LCM and in the proceedings before me. At the outset it should be noted the case arose out of long running civil litigation. In the Court of Appeal both Santow JA and Basten JA made observations concerning the indemnity principle in relation to the awarding of costs.
Latoudis v Casey, putting to one side the possible argument I have referred to above, makes clear that the indemnity principle applies in relation to the awarding of costs in criminal proceedings.
In relation to the indemnity principle Santow JA in Wentworth v Rogers said:
[45] The indemnity principle is long-established at general law. It is however not to be applied rigidly, or uninfluenced by statute or by practice recognised by statute, such as in relation to conditional fee agreements. I do not agree with the amicus' submissions that the principle has ceased to exist. Certainly there have been inroads to it brought about by the Act and by analogical reasoning from recognised exceptions. Where a party to an action has an agreement with their legal adviser that they do not have to pay any costs, then the general law principle states that that party cannot recover party and party costs against their adversary: McCullum v Ifield [1969] 2 NSWR 329 at 330 per Taylor J citing Gundry v Sainsbury [1910] 1 KB 645.
...
[50] First, the indemnity principle is not immutable, and should be applied flexibly rather than made into a rigid rule, as the examples given by Basten JA demonstrate. This was said as long ago as 1902 by Walker J in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR(NSW) 50.
Basten JA did not agree that the indemnity principle was to be applied "flexibly and reasonably"; see [161]. His Honour said the following :
[102] The substantive issue at the heart of the Appellants' case was the principle that the fundamental purpose of an order that one party to litigation pay the legal expenses or 'costs' of another party is to provide an indemnity in relation to the whole, or usually part, of the legal obligation incurred by the other party to his or her lawyers. If that party is under no legal obligation to pay lawyers' fees, no amount can be recovered from the unsuccessful party. This principle, sometimes known as the indemnity principle, was explained in Gundry v Sainsbury [1910] 1 KB 645.
[103] The principle does not apply only to the case in which the party has no financial obligation at all to his or her lawyer. It must also operate in the case where the lawyer has agreed to appear at a reduced fee, below that which might, in the ordinary course, be recoverable or has agreed to appear without fee, but on the basis that he or she would be reimbursed for disbursements, such as filing fees or travel expenses. In some cases an agreement with a solicitor to pay disbursements might include counsel's fees. However, that would seem not to be this case, in which counsel were engaged, without an instructing solicitor, well before the solicitor, Mr Licardy, agreed to act.
[104] The indemnity principle has been held to operate in two circumstances which might not obviously fall within its terms. The first is where the lawyers will be paid for their services, but not, as a matter of practice, by the client. Examples of that situation include cases where the litigant is indemnified by an insurer, by an association, such as a trade union, of which the litigant is a member, or where legal aid is obtained: see, eg, R v Archbishop of Canterbury [1903] 1 KB 289; Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495; Electrical Trade Unions v Tarlo [1964] Ch 720 and Johnson v Santa Teresa Housing Association (1992) 83 NTR 14. In each case, the primary liability was held to be that of the litigant or client and hence the indemnity principle was satisfied. In other circumstances, a lawyer may be employed by the litigant, either a trading corporation or some similar body, or the Crown. In such cases it has again been accepted that the litigant incurs costs, although questions may arise as to the amount which can be recovered: see, eg, Backhouse v Judd [1925] SASR 395; Davies v Taylor [No. 2] [1974] AC 225 at 234 (Lord Cross of Chelsea) and Joyce v Kammac Ltd [1996] 1 All ER 923 at 928.
Hislop JA found it unnecessary to express a view about the difference in the approaches by Basten JA and Santow JA; see [216].
Absent evidence as to the legal status of the ALS and details of its retainer with Mr Horsfield, I am unable to determine if his engagement of the ALS falls within one of the exceptions referred to in the judgments of Santow JA and Basten JA. For the reasons I gave earlier, it is not necessary that I do so.
It may be that in an appropriate case the following observations of Napier J, with whom Angas Parsons J agreed, in Lenthall v Hillson [1933] SASR 31 at 36 will be of particular importance: "We think that the principle that costs are given as an indemnity can be carried too far. It comes from the unwritten law, and depends upon considerations of public policy and convenience, and it follows that it must be reasonably understood and applied".
Dunlevy LCM in the Police v Turley, on the basis of the evidence before his Honour, determined that the engagement of the ALS by Mr Turley did not fall within one of the exceptions identified in Wentworth v Rogers. It is unnecessary for me to express any opinion about his Honour's conclusion as I do not know if Mr Horsfield's engagement of the ALS was on the same terms as Mr Turley's.
Section 42 of the Legal Aid Commission Act was referred to by Mr Boland in these proceedings. It seems likely that is the provision that Dunlevy LCM had in mind when his Honour gave judgment in Turley. Section 42 provides:
A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.
I think it unlikely that the presence of s 42 of the Legal Aid Commission Act sheds any light on the position in relation to persons who are represented by the ALS. Both Latoudis v Casey and Wentworth v Rogers suggest that the Courts have considered persons represented by the legal aid bodies to be an exception to the indemnity principle, without reference to any particular statutory provision. There appears to be nothing in the second reading speech relating to the introduction of the Legal Aid Commission Act1979 to suggest that s 42 was introduced to carve out an exception to the indemnity principle. As the quotes from Napier J and Santow JA above suggest, the category of exceptions to the indemnity principle determined by the higher courts may change over time.
The criteria in s 214(1) of the Criminal Procedure Act
No submission was advanced on behalf of the Police that the criteria set out in s 214(1) of the Criminal Procedure Act were not made out. My decision on the voir dire to exclude all of the prosecution evidence was on the basis of illegality, in that I determined that the Officer in Charge, Sergeant Abbott, had at least recklessly and probably deliberately, forced entry into domestic premises without a lawful basis. I also rejected a great deal of the evidence given by Abbott as to his asserted reasons for entering the premises.
The findings I made on the voir dire in my opinion satisfy the requirements of s 214(1)(a), in that I am satisfied that the investigation into the alleged offences was conducted unreasonably and in an improper manner. I am also of the opinion that my findings satisfy the requirements of s 214(1)(b) that the proceedings were initiated without reasonable cause. That is because, as my findings on the voir dire indicate, but for the illegal entry to the premises, the conduct alleged to have given rise to the offences charged would not have occurred.
The issue of just and reasonable costs
No submission was advanced on behalf of the Police that the costs sought by Mr Boland on behalf of Mr Horsfield, or the costs sought by Mr Pierce on behalf of Mr Dowd were not just and reasonable.
Mr Pierce claimed an amount of $14,850 for all appearances, including mentions of the proceedings and preparation and hearing time. Some of that work was done by a solicitor and the preparation and hearing work was attended to by Mr Pierce without the presence of an instructing solicitor. His daily appearance rate for appearing at the hearing days, without the assistance of an instructing solicitor, was $2,500 exclusive of GST. The voir dire hearing was one requiring considerable preparation. There is nothing about the amount claimed that appears to me not to be just and reasonable.
Mr Boland claimed an amount of $19,525. As with Mr Pierce, some of the work claimed was performed by a solicitor. Mr Boland appeared on the hearing days without the assistance of an instructing solicitor. His daily fee for the hearing days was the same as Mr Pierce. The claimed costs are slightly greater than those claimed on behalf of Mr Dowd, but that is explained by the additional work Mr Boland was required to undertake on the issue that was raised on the costs application. There is nothing about the costs claimed on behalf of Mr Horsfield that appears to me not to be just and reasonable.
Orders
In light of the above reasons I make the following orders:
The prosecutor in the matter of Nathan Dowd is to pay to the registrar for payment to the Legal Aid Commission on behalf of the accused the amount of $14,850 by way of professional costs.
The prosecutor in the matter of Tyron Horsfield is to pay to the registrar for payment to the ALS on behalf of the accused the amount of $19,525 by way of professional costs.
Buscombe LCM
Central Local Court
10 October 2013
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Decision last updated: 15 January 2014
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