Re Appeal Costs Board - [2001] WASCA 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE APPEAL COSTS BOARD; EX PARTE LEGAL AID COMMISSION OF WESTERN AUSTRALIA & ANOR [2001] WASCA 53

CORAM: KENNEDY J
PIDGEON J
WHEELER J

HEARD: 11 MAY 2000

DELIVERED : 28 FEBRUARY 2001

FILE NO/S: CIV 2319 of 1999

MATTER :Application for Writs of Certiorari and Mandamus against the APPEAL COSTS BOARD
EX PARTE
LEGAL AID COMMISSION OF WESTERN AUSTRALIA
ROBERT JOSEPH FRENCH
Applicants

Catchwords:

Costs - Criminal proceedings - Adjournment at request of prosecution - Accused legally aided - Grant of certificate under Suitors' Fund Act 1964 - Whether accused incurred additional costs by reason of the adjournment - Refusal of Appeal Costs Board to make a payment under the Act

Legislation:

Suitors' Fund Act 1964, s 14(1)(d)

Legal Aid Commission Act 1976, s 14, s 41, s 43, s 44

Result:

Orders nisi for writs of certiorari and mandamus discharged

Representation:

Counsel:

Applicants: Mr R E Lindsay & Ms A E Hanley
Appeal Costs Board : Mr G T W Tannin & Ms B L Murray

Solicitors:

Applicants: Legal Aid of Western Australia
Appeal Costs Board : State Crown Solicitor

Case(s) referred to in judgment(s):

Cachia v Hanes (1994) 179 CLR 403

Case(s) also cited:

Acquilina v Dairy Farmers Co-operative Milk Co Ltd [1965] NSWR 772
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Appeal Costs Board v Holloway [1985] WAR 57
Backhouse v Judd [1925] SASR 395
Commission of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51
Craig v South Australia (1995) 184 CLR 163
Jaszkowski v The Appeal Costs Board [1986] WAR 275
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
Murphy v Obst [1996] 2 VR 613
R v Chertsey Justices; Ex parte Franks [1961] 2 QB 152
R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Randall v Northcote (1910) 11 CLR 100
Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379
Richards v Faulls Pty Ltd [1971] WAR 129
Russell v McGuire, unreported; SCt of WA (Nicholson J); Library No 940108; 3 March 1994
Starkey v Railway Executive [1951] 2 All ER 902
Ward v Williams (1955) 92 CLR 496

KENNEDY J: This is the return of orders nisi for writs of certiorari and mandamus against the Appeal Costs Board on the application of the Legal Aid Commission of Western Australia and Robert Joseph French. In the alternative to writs of certiorari and mandamus, the applicants seek declarations:
(i)that the Appeal Costs Board should have held that the two applications made in respect of two certificates issued pursuant to s 14(1)(d) of the Suitors' Fund Act 1964 and dated respectively 7 July 1998 and 22 January 1999 satisfied the requirements of s 14(1) of the said Act and that payment to the second applicant should be made on such terms as the court thinks fit; and
(ii)that the Appeal Costs Board should not refuse payment under s 14(1) of the Suitors' Fund Act 1964 to an applicant because an applicant is financially assisted by the Legal Aid Commission of Western Australia.
The basis upon which the Legal Aid Commission has been joined as an applicant in these proceedings is not readily apparent; but no issue has been raised by the Appeal Costs Board as to its joinder, and having regard to the conclusion I have reached in this matter, it is unnecessary to pursue the question.
Mr French was charged in the Manjimup Children's Court with an offence against s 320(4) of the Criminal Code, alleging that, in 1997, he had indecently dealt with a child under the age of 13 years. He was the recipient of grants of legal aid from the Legal Aid Commission of Western Australia. The two letters informing Mr French of his being granted aid and of Mr M C Owens being his solicitor are attached to an affidavit in support of the application. In those letters, the conditions of each grant are said to be attached, in addition to being set out on the cover page of Mr French's application for legal representation. Neither the conditions referred to, nor the cover page, are before us.
The letters contain the statement, "Legal Aid is not free", and add, "Your obligation to make a payment towards your legal costs at this stage of the grant (if any) is set out below". In neither case does any such obligation appear "below".
Section 39 of the Legal Aid Commission Act 1976 sets out the conditions which may be imposed in respect of a grant of aid, including a condition that, on demand by the Commission, the assisted person shall pay to it the whole or any part of the cost of providing the legal aid. There is nothing before us to indicate that the Commission imposed any condition requiring Mr French to pay any part of the cost of providing the legal aid.
The letters do, however, set out the amount of the costs payable by the Commission to Mr French's solicitor in respect of the grants. This is in accord with s 14(1a) of the Legal Aid Commission Act, which obliges the Commissioner of Legal Aid to pay a private practitioner who performs services by way of legal assistance under the Act his fees and properly incurred expenses. By s 41(1), where a private practitioner performs, or has performed, legal services on behalf of an assisted person, he is prohibited from accepting any payment for performing those services, other than the payment or payments to which he is entitled under s 14(1) or pursuant to an agreement under s 14(1a). It is not suggested that there had been in this case any agreement entered into under s 14(1a). There is an exception to the provisions of s 41(1) in s 41(2) where the Director of Legal Aid approves acceptance of a payment. There is no suggestion of any such approval in this case.
After a number of remands, the charge against Mr French was set down for hearing in the Bunbury Children's Court on 7 and 8 July 1998. When the matter came before the Magistrate on 7 July 1998, no prosecution witnesses were in attendance because the investigating officer had issued summonses requiring the attendance of the witnesses on the wrong day. Furthermore, the prosecutor had not obtained the authorisation said to be required under s 19B(4)(b) of the Children's Court of Western Australia Act 1988. The Magistrate therefore adjourned the case. Mr Owens applied for, and obtained, a certificate under s 14(1)(d) of the Suitors' Fund Act.
Section 14(1)(d) relevantly provides that:
"[w]here … a criminal proceeding in any Court is adjourned by or on behalf of the prosecution and the presiding … magistrate grants a certificate, which he is hereby empowered to grant if he is satisfied that by reason of the adjournment the accused has necessarily incurred expense, to the accused stating the reason why the proceedings were adjourned and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor … and … the accused in the criminal proceedings … incurs additional costs … as a consequence of the adjournment, then the [Appeal Costs] Board may, upon application made to it in that behalf, direct the payment from moneys standing to the credit of the Fund to … the accused … of the costs or such part thereof, as the Board may determine incurred by … the accused … in the proceedings before they … were adjourned …."
The charge was relisted for hearing in the Children's Court at Bunbury on 8 December 1998. Once again the matter had to be adjourned because the prosecution had not obtained the appropriate authorisation under the Children's Court of Western Australia Act. Mr Owens sought a second certificate under s 14(1)(d) of the Suitors' Fund Act, which was also granted.
The certificates, each of which recited that the Magistrate was satisfied that Mr French had necessarily incurred expense, without, however, identifying the nature or amount of the expense, were forwarded by Mr Owens to the Appeal Costs Board. In respect of the first certificate, legal costs, as well as Mr French's loss of wages and travelling expenses, were claimed. In respect of the second certificate, legal expenses and loss of wages were claimed.
By letter dated 23 August 1999, the Board refused both applications on the basis of what it described as its consistently held view that the applicant must personally incur the additional costs.
Although s 14(1)(d) of the Suitors' Fund Act refers to the judicial officer granting a certificate "if he is satisfied that by reason of the adjournment the accused has necessarily incurred expense", it is the incurring of additional "costs" which gives rise to the discretion of the Board to make a payment of the costs, "or such part thereof as the Board may determine", incurred by the accused.
The meaning of "costs" in such a context is well established. In Cachia v Hanes (1994) 179 CLR 403, the High Court was concerned with the meaning of the word "costs" in the Supreme Court Act 1970 (NSW). The word was defined in s 19(1) of the Act to include "fees, charges, disbursements, expenses and remuneration". At 410 ‑ 411, Mason CJ, Brennan, Deane, Dawson and McHugh JJ said:
"Costs, within the meaning of the [Supreme Court] Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.
This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester [1278 (UK) 6 Edw I c 1] 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 expences of his travell and losse of time'."
It follows, therefore, that an accused's travelling expenses and loss of wages resulting from an adjournment are not comprehended within the term "costs". Nor is there any evidence that Mr French has "incurred" any costs. The word "incurred" takes its meaning from its context. Section 14(1)(d) of the Suitors' Fund Act refers to the accused having "necessarily incurred expense" and to the payment to the accused of the costs, or such part thereof as the Board may determine, "incurred" by the accused in the proceedings before they were adjourned. In this context, in my opinion, costs may be taken to have been incurred only if the costs have been paid, or if the accused has undertaken liability to pay them. There is no suggestion that Mr French has paid any costs as a consequence of the adjournment, nor any suggestion that he has undertaken any obligation to pay any costs.
It may be noted that, by s 43(1) of the Legal Aid Commission Act, for the purpose of making any order for costs, or the determination of any entitlement to costs in a proceeding before a court or tribunal to which an assisted person is a party, that person shall be deemed to be liable to pay the ordinary professional costs of the legal services provided to him in or in connection with that proceeding, and any disbursements (including counsel fees) and out of pocket expenses incurred in or in connection with the provision of those services. By subs (2), 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 ordinary exercised, on the question of costs; and costs may be awarded against an assisted person as though he were not assisted. Section 44 goes on to deal with the recovery of costs by the Commission from successful assisted persons. Section 43 has no application to the case before us, as it is concerned only with party and party costs, and the Act contains no similar deeming provision for the purposes of s 14(1)(d) of the Suitors' Fund Act.

In the circumstances, in my opinion, the orders nisi for writs of certiorari and mandamus should be set aside and the application for declarations dismissed.
PIDGEON J: I agree with the reasons of Kennedy J.
WHEELER J: I agree with the reasons for decision of Kennedy J and with the orders proposed by his Honour.