Rayney v Stevenson DCJ
[2015] WASC 112 (S)
•9 JUNE 2015
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | RAYNEY -v- STEVENSON DCJ [2015] WASC 112 (S) |
| CORAM | : CHANEY J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : LLOYD PATRICK RAYNEY |
Applicant
AND
STEVENSON DCJ
First Respondent
THE CROWN IN THE RIGHT OF THE
COMMONWEALTHSecond Respondent
Catchwords:
Costs - Judicial review - Whether reason to depart from usual order - Review in context of criminal prosecution - Motivation for proceedings - Impecuniosity of applicant - Turns on own facts
Legislation:
Legal Aid Commission Act 1976 (WA), s 43(2)
Rules of Supreme Court, O 66 r 1(1)
Supreme Court Act 1935, s 37(1)
[2015] WASC 112 (S)
Result:
Cost order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr A E Eyers |
| First Respondent | : | No appearance |
| Second Respondent | : | Ms S J Oliver |
Solicitors:
| Applicant | : | Thexton Lawyers |
| First Respondent | : | No appearance |
| Second Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in judgment(s):
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
The State of Western Australia v Collard [2015] WASCA 86
[2015] WASC 112 (S)
CHANEY J
CHANEY J: On 31 March 2015 I published reasons dismissing an application for judicial review in relation to a decision of a judge of the District Court, Judge Stevenson, to reject an application under s 90 of the Criminal Procedure Act 2004 (WA) (the CP Act) for a permanent stay of proceedings on an indictment for offences against the Telecommunications (Interception and Access) Act 1979 (WA). In summary, the application was dismissed because I concluded that the learned judge had not failed to apply the correct test under s 90 of the CP Act, and that various errors said to have been made by the learned judge were not capable of amounting to jurisdictional errors which might attract judicial review.
2 The second respondent now seeks an order that the applicant pay its
costs. It seeks costs in the sum of $13,957.97, which represents the amount of the fees charged by Senior Counsel who appeared for the second respondent at the hearing of the application. That amount makes no provision for recovery of solicitor costs or the costs of junior counsel.
The applicant opposes the making of any order for costs.
4 The jurisdiction to award costs is found in s 37(1) of the Supreme Court Act 1935 (WA). That section provides that, subject to the Rules of the court, the costs of and incidental to all proceedings in the Supreme Court are to be in the discretion of the court or judge, and the court or judge has full power to determine by whom and to what extent costs are paid.
Order 66 r 1(1) of the Rules of the Supreme Court 1971 (WA)
provides:
(1) Subject to the express provisions of any statute and of these rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.
6 The discretion to award costs, whilst broadly expressed, is not
unqualified. It cannot be exercised capriciously and must be exercised judicially in accordance with established principle and factors directly connected with the litigation.[1] The general principle that the successful
[1] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [65] (McHugh J, Brennan CJ
[2015] WASC 112 (S)
CHANEY J
party should be entitled to an award of costs was explained by McHugh J
(with whom Brennan CJ agreed) in Oshlack, in the following terms:The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.[2] (footnotes omitted)
[2] Oshlack v Richmond River Council (1998) 193 CLR 72 [67].
In The State of Western Australia v Collard[3] the court said:
[3] The State of Western Australia v Collard [2015] WASCA 86 [26][A] departure from the usual rule as to costs has ordinarily occurred where there has been some conduct of the successful party which disentitles it to an order for its costs, such as when the successful party by its lax conduct effectively invites the litigation; or unnecessarily protracts the proceedings; or succeeds on a point not argued before a lower court; or prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute: Oshlack [69], and see O 66 r 1(2), (3).
8 The question for determination is whether or not there are
circumstances which should lead me to depart from the general principle and decline to make an order for costs in favour of the second respondent.
9 In resisting the application for costs, the applicant makes no criticism
of the manner in which the second respondent participated in the proceedings. In other words, he does not point to any conduct by the second respondent which might disentitle it to costs. Rather, the written and oral submissions of the respondent rested on three propositions. The first was that the application was brought in the context of ongoing criminal proceedings. The second was that the application was brought in order to endeavour to ensure a fair trial in the context of an extraordinary factual background and procedural limitations in relation to Commonwealth offences. The third related to the applicant's impecuniosity.
Ongoing criminal processes
10 It is correct that the application sought to stay an impending criminal
trial, and involved an attempt to review a decision made under the CP Act.
[2015] WASC 112 (S)
CHANEY J
It arose in a context where a right of appeal in relation to the decision to refuse a permanent stay of proceeding would have been available after trial in the event of conviction. Rather than wait to avail himself of that opportunity if the need arose, the applicant chose to make the application in this court's civil jurisdiction to undertake judicial review. The application was made outside of the criminal jurisdiction governed by the CP Act and the Criminal Appeals Act 2004 (WA), and in an attempt to circumvent the statutory regime applicable to interlocutory decisions made in criminal proceedings. That choice carried with it the risk of an adverse costs order. The fact that the application related to criminal proceedings is not, in my view, a reason to except this case from the usual provision that the unsuccessful party bear the costs.
Protection of a right to a fair trial
11 In oral submissions in relation to this issue, counsel for the applicant
emphasised that the factual background to the application for a stay of the trial is most unusual, if not unique. He noted that, the indictment being brought under Commonwealth law, the option of a trial by judge alone was not available to the applicant. He submitted that the applicant was therefore deprived of the protection against the adverse effect of pre-trial publicity and prior adverse judicial comment which would be available in a judge alone trial. He submitted that, because a question of a fair trial was at the heart of the application, that is a factor which should influence the discretion in relation to costs.
12 Those submissions go, in essence, to the merits of the applicant's
application for a stay. The merits of the application for a stay were not the subject matter of the proceedings in this court. Rather, the question agitated by the applicant in these proceedings was whether the District Court had acted outside its jurisdiction by applying a wrong statutory test, having regard to irrelevant considerations, or failing to take into account relevant considerations. The applicant was unsuccessful on those issues. The motivation of the applicant in pursuing the proceedings, whether justified or not, is not a basis to deprive the successful party of its costs.
The applicant's impecuniosity
13 Counsel for the applicant submitted that all of the legal work done in
relation to the District Court proceedings, and the application in this court, was done either on modest grants of legal aid or on a pro bono basis, and that the applicant does not have the means to meet a costs order. No evidence to support those contentions was put before me, but no objection was taken by the second respondent to counsel's assertions. Even if those
[2015] WASC 112 (S)
CHANEY J
assertions are accepted, however, impecuniosity of an unsuccessful litigant does not provide a basis to depart from the usual order as to costs. Nor does the fact that the applicant is in receipt of grants of legal aid affect the exercise of discretion. Section 43(2) of the Legal Aid Commission Act 1976 (WA) provides:
The circumstances of a party to a proceeding being an assisted person does not affect the rights or liabilities of any other party to the proceeding, or affect the principles on which the discretion of a court or tribunal is ordinarily exercised, on the question of costs; and costs may be awarded against an assisted person as though he were not assisted.
Conclusion
14 No reason to depart from the usual order that the unsuccessful party
pay the costs of the successful party exists in this case. Accordingly, there should be an order that the applicant pay the second respondent's costs. I turn now to the question of quantum.
Quantum of costs
15 In his written submissions, the applicant submitted that he did not
consent to an order fixing costs, but rather wished to be heard on taxation. However, in his oral submissions at the hearing of the application for costs, the applicant's counsel submitted that, if costs are to be fixed, the court should settle upon some figure less than the amount claimed, and should allow time to pay.
16 In my view, it is appropriate to fix costs in the amount claimed. The
maximum amount permitted by item 28(d) of the Legal Practitioners (Supreme Court) Contentious Business Determination 2012 (which is the relevant scale for present purposes) is $19,140 for the counsel fee for Senior Counsel. The amount claimed is well below that maximum. No claim is made by the second respondent in relation to junior counsel's fees, nor for preparation of the case for hearing. There is a distinct possibility that, if the matter were to go to taxation, and the second respondent were to seek to recover all of its costs, the amount allowed on taxation might considerably exceed the amount which the second respondent proposes to fix as costs. Taxation would incur yet further costs.
The applicant did not suggest any basis upon which some other amount might be fixed upon.
Costs should be fixed in the sum of $13,957.97.
[2015] WASC 112 (S)
CHANEY J
Time to pay
19 Counsel for the applicant suggested that, were I minded to award an
amount of fixed costs, I should provide for some time to pay. No particular time was suggested, nor did the applicant provide any evidence upon which some sensible assessment could be made as to a period over which payment should be made. It is no doubt open to the applicant to enter into negotiations with the second respondent in relation to payment of costs. It would be inappropriate for me to select some time for payment without any foundation whatsoever to do so.
There should be an order that the applicant is to pay the second respondent's costs fixed at $13,957.97.
agreeing).
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