Saldanha v McAdam

[2007] WASC 297 (S)

SALDANHA -v- McADAM [2007] WASC 297 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 297 (S)
Case No:	SJA:1046/2006	Heard:	14 NOVEMBER 2007 & ON THE PAPERS (SUBMISSIONS FILED 7 MARCH 2008)
Coram:	TEMPLEMAN J	Delivered:	6/12/07
Supplementary Delivered:	8/05/08
No of pages:	7	Judgment Part:	1 of 1
Result:	Application granted in part
Category:	A
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Parties:	MARINA ANN ELIZABETH SALDANHA FRANK RICHARD McADAM
Catchwords:	Costs Successful appeal against conviction Appellant unrepresented Unsuccessful claim for loss of earnings while attending trial Injustice of result
Legislation:	Legal Practitioners (Official Prosecutions) (Defendants' Costs) Determination 2006 (WA), cl 4(6) Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5(5)
Case References:	Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119 Cachia v Hanes (1994) 179 CLR 403 Kerridge v Foley (Unreported, NSWSC, 19 August 1970) Petrunic v Barnes [1989] VR 927 Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : SALDANHA -v- McADAM [2007] WASC 297 (S) CORAM : TEMPLEMAN J HEARD : 14 NOVEMBER 2007 & ON THE PAPERS (SUBMISSIONS FILED 7 MARCH 2008) DELIVERED : 7 DECEMBER 2007 SUPPLEMENTARY
DECISION : 8 MAY 2008 FILE NO/S : SJA 1046 of 2006 MATTER : Criminal Appeals Act 2004 Pt 2

Prosecution Notice No. PE 5978 of 2006 in the Magistrates Court of Western Australia at Perth

BETWEEN : MARINA ANN ELIZABETH SALDANHA

Applicant

AND

FRANK RICHARD McADAM
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE DR M S KING

File No : PE 5978 of 2006

(Page 2)

Catchwords:

Costs - Successful appeal against conviction - Appellant unrepresented - Unsuccessful claim for loss of earnings while attending trial - Injustice of result

Legislation:

Legal Practitioners (Official Prosecutions) (Defendants' Costs) Determination 2006 (WA), cl 4(6)

Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5(5)

Result:

Application granted in part

Category: A

Representation:

Counsel:

Applicant : In person
Respondent : Ms N Eagling

Solicitors:

Applicant : In person
Respondent : State Solicitor for Western Australia

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

Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119
Cachia v Hanes (1994) 179 CLR 403
Kerridge v Foley (Unreported, NSWSC, 19 August 1970)
Petrunic v Barnes [1989] VR 927
Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288


(Page 3)

TEMPLEMAN J:

Correction of error

1 On 7 December 2007, I delivered my reasons for decision to allow Ms Saldanha's appeal against conviction for a speeding offence.

2 In [72] - [77] of my reasons, I concluded that the provisions of s 42 of the Criminal Procedure Act 2004 (WA) applied to simple offences such as that in issue in this appeal. It has been drawn to my attention subsequently by counsel for the respondent that this was an error. That is because s 37 of the Criminal Procedure Act limits the application of s 42 to circumstances in which a charge concerning an indictable offence is brought before a court of summary jurisdiction.

3 Although the error did not affect the outcome of the proceedings, it is undesirable that it should remain on the record. Counsel for the respondent submits (and I accept) that I have an inherent jurisdiction to amend my reasons for decision so as to correct error.

4 I have therefore removed the original [72] to [77] inclusive from my reasons and re-issued them. The judgment appearing on the database is now in the revised form.

Costs

5 Having been successful in the appeal, in which she represented herself, Ms Saldanha has sought an order for the payment of her costs pursuant to s 5(5) of the Official Prosecutions (Accused's Costs) Act 1973 (WA).

6 Ms Saldanha claims costs under four heads. I deal with each in turn.

Costs incurred in preparing and submitting the grounds of appeal etc

7 Ms Saldanha claims an amount of $250 for the costs of preparing and submitting the grounds of appeal and various other submissions to the court. The costs are said to include postage, obtaining transcripts and the cost of photocopying relevant cases and articles.

8 Ms Saldanha made her claim initially by letter to the State Solicitor's Office. The State Solicitor accepted that Ms Saldanha was entitled to claim the amount of $250 for the expenses summarised above. I agree.

(Page 4)

Legal advice from the Law Society

9 Ms Saldanha paid $25 for advice from the Law Society's 'Shopfront Lawyer'.

10 The State Solicitor accepted that Ms Saldanha was entitled to recover this amount. I agree.

Informal legal advice

11 Ms Saldanha claimed the sum of $60 being the cost of lunch with 'a lawyer friend' who provided her with informal advice about her case.

12 The State Solicitor's view was that this was not a proper disbursement, but that if the lawyer rendered an account for the advice, Ms Saldanha would be entitled to claim the relevant amount. I agree. I would not accept the claim for $60 unless Ms Saldanha provides an invoice from the lawyer.

Loss of wages due to court attendances

13 Ms Saldanha claimed $1,200 being the wages she lost while attending court on three days at a rate of $400 per day. The State Solicitor said in relation to that claim:

When you are defending a matter you do not have any entitlement to loss of wages.

14 Again, I agree. In Cachia v Hanes (1994) 179 CLR 403, the High Court considered the ambit of an award of costs to a litigant in person who had successfully defended a civil claim brought against him in the Supreme Court of New South Wales.

15 The litigant had been awarded costs. The relevant rule of the Supreme Court of New South Wales provided:

On a taxation on a party and party basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.

16 The majority of the court held that the costs for which the above rule provided were confined to money paid out or liabilities incurred for professional legal services. The costs did not include compensation for time spent by a litigant who was not a lawyer in preparing and conducting his case.

(Page 5)

17 The litigant was a self-employed consulting engineer. He claimed for loss of time which was quantified in his bill of costs at $85 per hour.

18 The majority of the High Court referred to 'some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement'. The court referred to Kerridge v Foley (Unreported, NSWSC, 19 August 1970); Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288; cf Petrunic v Barnes [1989] VR 927; Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119.

19 In Boswell's case the Full Court of the Federal Court said:

… we think the authorities to which reference has been made establish that a litigant in person who is not a solicitor may not receive any remuneration for work done in the preparation of a case or for appearing in court. But they also establish that litigants in person are entitled to recover their out of pocket expenses. We can find nothing in the cases which obliges this Court to hold that a litigant in person who has had to have time away from his or her employment or business in order to prepare a case or to attend court to present it should not recover an indemnity for any loss of earnings suffered in consequence. That is not to permit a litigant in person to charge a sum in the nature of professional costs; rather it is to provide an appropriate indemnity against loss of earnings incurred whether in the preparation of a case or in actual attendance at court. Of course the touchstone is that of what was necessary and reasonable in all the circumstances. So long as this is the approach, no injustice can result (292).

20 However, in Cachia v Hanes, the majority disapproved this reasoning. Their Honours said:

Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible (417).

21 The court's jurisdiction to award costs to Ms Saldanha arises under s 5(5) of the Official Prosecutions (Accused's Costs) Act 1973 which provides that:

The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a legal costs determination (as defined in the Legal Practice Act 2003).

22 The relevant determination in the present case is the Legal Practitioners (Official Prosecutions) (Defendants' Costs) Determination 2006.

(Page 6)

23 In cl 4(6) of the determination, the Legal Costs Committee determined that:

Witness fees should be allowed as a disbursement and at the discretion of the Court or the taxing officer but loss of earnings foregone of a witness or the defendant are not intended to be recoverable.

Section 3(2) of the 1973 Act provides that:

To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the accused prevails.

24 There is, however, no other statutory provision or rule which is more favourable to Ms Saldanha in relation to her loss of earnings.

25 It follows, that in the light of the determination and the decision of the High Court in Cachia v Hanes it is not open to Ms Saldanha to recover the loss of earnings she has suffered as a result of defending the charge brought against her and prosecuting the appeal.

26 With all respect to the Legal Costs Committee, I feel bound to say that I regard this as an unjust result. Ms Saldanha was fully entitled to defend herself against a claim, which on the findings I have made, should never have been brought against her. Although a loss of earnings is clearly not an expense, in the sense of having been paid by Ms Saldanha, she is nevertheless substantially out of pocket. However, her only hope of redress would be by way of an ex gratia payment from the executive government, via the Attorney General.

27 In Cachia v Hanes at 416 - 417, the majority said:

… there is no doubt that the inability of a litigant in person to obtain recompense for time spent in the conduct of successful litigation must on occasions be a significant deterrent to the exercise of his right to come to court in person.

28 Their Honours went on to refer to the position in England, where the Litigants in Person (Costs and Expenses) Act 1975 (UK) and relevant rules of court permit the court to order an unsuccessful party to pay to a litigant in person such amounts as may be allowed on taxation in respect of 'expenses and losses incurred by the litigant in or in connection with the proceedings …'

29 It seems that the courts in New Zealand and Canada are also able to award costs to a litigant in person so as to compensate for the loss of

(Page 7)

opportunity to earn income resulting from litigation: see Dal Pont G, Law of Costs (2003) [7.33] - [7.35].

30 However, unless the law is changed in this jurisdiction, the potential for injustice remains, where, as in this case, it is clear that at the least, a serious error has been made by a police officer.

31 In addition to the specific claims made under the four headings set out above, Ms Saldanha asked the State Solicitor whether she was entitled to claim compensation

for the time and effort I put into preparing/researching the case (over 30 hours) and for the pain and suffering I endured as a result of being convicted for a crime I did not commit.

32 Clearly, on the basis of the decision of the High Court in Cachia v Hanes and the costs determination referred to above, Ms Saldanha has no entitlement to compensation of the kind set out above.

33 I therefore consider it appropriate to issue a certificate under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 in an amount of $275, or $335 if Ms Saldanha produces an account for legal advice from her lawyer friend.