Streeter v Brodie [2004] ACTSC
[2004] ACTSC 111
STREETER v BRODIE [2004] ACTSC
[2004] ACTSC 111 (25 October 2004)
PROCEDURE – costs – appeal from Magistrate’s decision – whether solicitor had “over-serviced” matter.
Magistrates Court Act 1930 s 244 (b), (c)
Emanuele v Dau (1996) 133 FLR 312
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA18 of 2004
Judge: Higgins CJ
Supreme Court of the ACT
Date: 25 October 2004
IN THE SUPREME COURT OF THE )
) No. SCA18 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: MICHAEL SCOT STREETER
Appellant
AND: WILLIAM ALEXANDER BRODIE
Respondent
ORDER
Judge: Higgins CJ
Date: 25 October 2004
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
On 5 November 2003, I dismissed on appeal from a decision by Magistrate Symons concerning procedural directions for the hearing of committal proceedings.
The committal proceeded in the Magistrates Court before Magistrate Somes. On 17 November 2003, the respondent, having been successful in respect of all matters charged against him applied for an order for costs. The learned Magistrate determined that the appellant should pay the respondent’s costs of the proceedings, but did not then fix the quantum of those costs. That question was reserved.
The quantum of those costs was relisted on 5 March 2004 and fixed at $26,272. The appellant disputes that order.
The grounds relied upon by the appellant originally challenged the compliance of the order with s 244 (c) of the Magistrates Court Act 1950 (sic-1930). That provision is that:
“the sums so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal”.
That contention was, apparently, that there could be no separation between the making of the costs order and the specification of the quantum of those costs. However, that ground of appeal, in light of the decision of Emanuele v Dau (1996) 133 FLR 312, was expressly abandoned.
That left grounds (b), (c) and (d) which complained that contrary to s 244 (b) the quantity of costs was not fair and reasonable or that the learned Magistrate’s discretion miscarried or that the learned Magistrate took into account an irrelevant consideration, i.e., the reputation of the respondent’s solicitor.
The appellant acknowledged, from the outset, that the assessment of costs was essentially a discretionary decision.
It was also common ground that the costs to be assessed included costs incurred in committal proceedings preceding the summary hearing which ultimately eventuated.
There was a chronology of the proceedings which was not disputed:
7 October 2002 Mr Brodie appears in A List charged with both offences, unrepresented. Bailed to appear on 23 October 2002.
23 October 2002 Mr Brodie appears represented by Ian Nicol. Adjourned to 30 October 2002 for bail variation.
30 October 2002 Mr Brodie appears with Ian Nicol. Bail varied. Adjourned to 20 November 2002. Representations to be made by Ian Nicol.
6 November 2002 Mr Brodie appears with Ian Nicol. Further bail variation to coincide with DVO taken out by Mrs Brodie on 1 November 2002.
20 November 2002 Mr Brodie appears with Ian Nicol. Adjourned to 11 December 2002 with notation of no more adjournments without plea being entered.
11 December 2002 Mr Brodie appears with Ian Nicol. Plea of not guilty to both charges. Adjourned to FV CMH on 19 February 2003 at 3.00pm.
19 February 2003 Mr Brodie appears with Ian Nicol at CMH. Sexual intercourse without consent charge discontinued. CMH adjourned to 26 March 2003 at 3.00pm.
26 March 2003 Mr Brodie appears with Ian Nicol. CMH adjourned to 9 April 2003 at 2.30pm.
9 April 2003 Mr Brodie appears with Ian Nicol. Mr Nicol seeks access to subpoena material and makes application for bail to be dispensed with. Application refused. CMH adjourned to 16 April 2003 at 2.30pm.
16 April 2003 Mr Brodie appears with Kylie Neville, solicitor. CMH adjourned to 23 April 2003. Note – comments made by Magistrate Fryar as to number of adjournments and costs implications.
23 April 2003 Mr Brodie appears with Ian Nicol. Hearing dates of 21 and 22 July set. Note – Mr Nicol advises that he requires all witnesses for hearing and confirms that hearing will be a committal.
21 July 2003 Mr Brodie appears with barrister Stephen Whybrow, Ian Nicol and another solicitor before Magistrate Dingwall. Hearing did not proceed due to illness of another magistrate and matters being given to Mr Dingwall. Hearing adjourned to 20 and 21 August 2003. Note – discussions re use of CCTV by Mrs Brodie. Magistrate Dingwall directed CSI before magistrate to hear matter.
12 August 2003 Mr Brodie appears with Stephen Whybrow, Ian Nicol and another solicitor before Magistrate Symons. Hearing conducted re sue if CCTV by Mrs Brodie. Adjourned to 14 August for decision.
14 August 2003 Mr Brodie appears with Ian Nicol. Magistrate Symons hands down decision. Mrs Brodie able to give evidence via CCTV. New hearing dates of 17 and 18 November 2003 set. Note – Mr Brodie appealed against decision of Magistrate Symons and appeal heard by Higgins CJ on 2 October 2003. Appeal dismissed.
3 September 2003 Mr Brodie appears with Ian Nicol. Hearing dates of 17 and 18 November confirmed. Note – all witnesses still required.
17 November 2003 Mr Brodie appears with barrister James Sabharwal, Ian Nicol and another solicitor. On morning of hearing, Mr Sabharwal advises that issues very narrow and only witnesses required are the Informant and Mrs Brodie. Hearing before Magistrate Somes. Prima facie case and consent to jurisdiction. Mr Brodie gave evidence and after hearing all evidence, charge dismissed.
I note that, on the appeal previously heard before me, decided on 5 November 2003, no order for costs was sought or made. The respondent had not been successful in his challenge to Magistrate Symons’ interlocutory ruling.
The proceedings against the respondent had, initially, involved an allegation of a serious sexual assault. There was also an allegation of common assault. Each charge related to the respondent’s wife. There had been other proceedings related to these allegations concerning protection orders. The respondent was a former police officer and a senior public servant. There was, as his Worship reasonably accepted, a serious risk to his employment if he was convicted of any of those offences.
There had been extensive representations made to the Director of Public Prosecutions (ACT) (DPP) which resulted in the sexual assault charges being discontinued. Mr Nicol, solicitor for the respondent, has set out in an affidavit, details of the work undertaken on behalf of the respondent. There were also serious issues as to bail conditions. Ultimately the respondent was acquitted of the assault charge after a contested hearing.
Mr Lundy, for the DPP, before Magistrate Somes, indicated that $10,000 to $12,000 had been offered for costs, including counsels’ fees.
Mr Nicol, before Mr Somes, offered a breakdown and explanation of the fees he claimed. He indicated that the solicitor/client costs had been assessed at over $50,000, though not all was reasonably claimable as against the appellant.
His Worship did have regard to his assessment of Mr Nicol as an experienced legal practitioner. This was a factor his Worship took into account in persuading himself that Mr Nicol was unlikely to have wasted his time on “over-servicing” the matter.
To my mind, that was a reasonable view for his Worship to have adopted. It was also reasonable for his Worship to conclude that the respondent had been entitled to take every reasonable step to contest the proceedings against him.
His Worship was entitled to accept that the total charge of $50,000 was not an over-charge, so far as the client was concerned, and that to allow $26,272 properly represented the costs reasonably incurred, at a rate not excessive, of conducting the proceedings without including such matters as the previous appeal for which no costs were allowable against the appellant.
Given the role of the solicitor as undertaken in this case, it is reasonable that solicitor’s fees should be considerably more than counsels’ fees. Nor is it a reasonable suggestion that the $198 per hour used by Mr Nicol was excessive because “attending to instruct counsel” under the Supreme Court Scale is set at $158.40. That latter figure is one that might be increased by a loading for care, skill and attention in any event. It does not apply to preparation work nor to attending to conduct proceedings without counsel.
Of course, had no more work been required than one day of hearing with two witnesses, the amount claimed would have been excessive. However, the time in court, particularly for a solicitor preparing the case, is but the tip of the iceberg of work reasonably undertaken on behalf of the respondent by Mr Nicol.
It is true that it would have been open to his Worship to request a report from a taxing officer but to do so would, of itself, increase costs.
It was open to his Worship, also, to accept the unchallenged oral assertions of Mr Nicol as to the work he had done and how it was charged for. To have required an affidavit or sworn evidence would not be usual in assessments of costs. It would, in any event, have added considerably to the costs incurred and I am quite persuaded that the course consensually adopted by Mr Lundy and Mr Nicol was a reasonable one.
It follows that the assessment made by his Worship is not demonstrably erroneous and seems to me to have been well within his Worship’s discretion to adopt it.
The appeal is dismissed. I will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 25 October 2004
Counsel for the Appellant: Mr R Refshauge SC
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr J Sabharwal
Solicitor for the Respondent: Williams Love & Nicol
Date of hearing: 22 July 2004
Date of judgment: 25 October 2004
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