Winter v Fleeton
[2002] WASCA 73
•5 APRIL 2002
WINTER -v- FLEETON [2002] WASCA 73
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 73 | |
| Case No: | SJA:1047/2001 | 6 NOVEMBER 2001 | |
| Coram: | WALLWORK J | 5/04/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay appellant's disbursements at $543.75 | ||
| B | |||
| PDF Version |
| Parties: | ALEXANDER JOSEPH WINTER CRAIG WALTER FLEETON |
Catchwords: | Costs Litigant in person Only entitled to necessary expenditure to advance his appeal Not the reimbursement for attending at hearings |
Legislation: | Justices Act 1902 (WA), s 219 Official Prosecutions (Defendants Costs) Act 1973 (WA), s 5(4) |
Case References: | Buckland v Watts [1970] 1 QB 27 Cachia v Hanes & Anor (1994) 179 CLR 403 Haynes v Hughes [2001] WASCA 169; BC 200102888 London Scottish Benefits Society v Chorley [1884] 13 QBD 872 Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA; (Parker J); Library No 980123; 7 April 1998; BC 9801126 Williams v Beverley, unreported; SCt of WA; (Parker J); Library No 980474; 24 August 1998; BC 9804278 Byrne v Godfree (1997) 96 A Crim R 197 Gill v King, unreported; FCt SCt of WA; 12 November 1996; BC 9605523 Klahn v Talbot (1995) 83 A Crim R 535 Sullivan and Department of Industry, Science and Technology; Re (1998) 51 ALD 767 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
CRAIG WALTER FLEETON
Respondent
Catchwords:
Costs - Litigant in person - Only entitled to necessary expenditure to advance his appeal - Not the reimbursement for attending at hearings
Legislation:
Justices Act 1902 (WA), s 219
Official Prosecutions (Defendants Costs) Act 1973 (WA), s 5(4)
Result:
Respondent to pay appellant's disbursements at $543.75
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms R A Yates
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Buckland v Watts [1970] 1 QB 27
Cachia v Hanes & Anor (1994) 179 CLR 403
Haynes v Hughes [2001] WASCA 169; BC 200102888
London Scottish Benefits Society v Chorley [1884] 13 QBD 872
Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA; (Parker J); Library No 980123; 7 April 1998; BC 9801126
Williams v Beverley, unreported; SCt of WA; (Parker J); Library No 980474; 24 August 1998; BC 9804278
Case(s) also cited:
Byrne v Godfree (1997) 96 A Crim R 197
Gill v King, unreported; FCt SCt of WA; 12 November 1996; BC 9605523
Klahn v Talbot (1995) 83 A Crim R 535
Sullivan and Department of Industry, Science and Technology; Re (1998) 51 ALD 767
(Page 3)
1 WALLWORK J: On the 5 April 2001 the appellant in this matter was given leave to appeal from a conviction in a Court of Petty Sessions. The appellant had been convicted of speeding. He was fined $150 and ordered to pay $57.70 costs.
2 When the appeal came on for hearing in this Court on the 21 June 2001 it was conceded for the respondent that the onus of proof had not been correctly applied by the learned Magistrate. The appeal was allowed, the conviction was quashed and the matter was remitted for hearing before another Magistrate. The question of costs was reserved. The appellant was asked to submit a calculation of his costs to the Crown Solicitor for Western Australia. It was understood that if there was no agreement concerning the costs, they would be fixed by me after a further hearing.
3 Having heard argument from the parties as to the costs on the 6 November 2001, I reserved my decision. The appellant had submitted an outline of his costs and disbursements. He had listed the costs under various headings including court attendances, serving of documents, preparation of documentation, photocopies, transcripts, exhibits, parking, typing, appeal binding, preparation of and getting appeal up for hearing. He had also submitted an estimate of his costs and expenses for paper, photo costs, disks, files, plastic sleeves, petrol, travel costs and expenses etc.
4 Included in the appellant's claims for court attendances were claims for attending at the Court for approximately two hours on the 5 April 2001 when obtaining leave to appeal, a further half hour with the listing co-ordinator on the 1 May 2001, and three quarters an hour before this Court on the 21 June 2001 when the appeal was conceded. There was a further attendance on the 22 August 2001 in connection with costs and finally the attendance on the 6 November 2001 when the question of costs was argued.
5 In addition to the above attendances there were claims for the expenses of the serving of documents at the Crown Solicitor's office and at the Supreme Court on the 19 April 2001, 24 April 2001, 13 June 2001, 14 June 2001, 27 June 2001 and 31 July 2001. Those attendances had involved the paying of $9.60 for parking fees plus various expenses in connection with the preparation of the documentation for the leave to appeal and the appeal books.
(Page 4)
6 The preparation for leave to appeal and the affidavits had involved compiling four copies of those documents at 65 pages each. There were also five copies of the appeal books at 86 pages each. The cost of those documents was $100. The appellant also claimed the sum of $138 for photocopying at $0.20 a page; also the costs of purchasing transcript in the Court of Petty Sessions, a copy of the police record and a copy of the relevant complaint, at $97.
7 It is noted that the appellant was charged $2 a page for the Court of Petty Sessions transcript and $5 for a copy of the complaint. The appellant also paid $36 for the preparation of the exhibits and $22.75 for the binding of the appeal book. He estimated a cost of $200 for paper, phone costs, petrol, travel costs and other expenses.
8 In the original bill served on the respondent dated 27 June 2001 the total sum claimed by the appellant for his costs was $2,230.35.
9 It was submitted for the respondent that because the respondent was a police officer the only costs which could be awarded to the appellant as a successful appellant were costs under the Official Prosecutions (Defendants Costs) Act 1973 (WA) ("the Act") - see Justices Act 1902 (WA) s 219. It was also submitted that the decisions in Williams v Beverley, unreported; SCt of WA; (Parker J); Library No 980474; 24 August 1998; BC 9804278 at 4 and Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA; (Parker J); Library No 980123; 7 April 1998; BC 9801126 at 4 were authority for the proposition that no costs order could be made in this Court for the costs in the Court of Petty Sessions. Section 5(4) of the Act provides:
"Where a defendant is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court."
10 Since the decisions in Serrell (supra) and Williams (supra) there has been a further decision in Haynes v Hughes [2001] WASCA 169; BC 200102888 I understand Roberts-Smith J to have said in that case, that in a case like the present, the Appeal Court shall make an order as to the amount of the costs in the appeal Court and in the summary Court.
11 It is my tentative view that s 5(4) should be applied in this case. The effect of that section seems to be that I should make an order for the amount of the costs in the Appeal Court and in the summary Court. There were no submissions made to me concerning the costs in the summary
(Page 5)
- Court. I will reserve the question of the costs in the Court of Petty Sessions to enable the parties to make written submissions to me on that question within 28 days.
12 In the meantime, with respect to the costs of the appeal in this Court, in my view I am bound to apply the reasons of the High Court in Cachia v Hanes & Anor (1994) 179 CLR 403 where Mason CJ, Brennan, Dean, Dawson and McHugh JJ discussed the law applicable where a person appears before a Court without legal representation.
13 In Cachia (supra) at 409 their Honours said:
"The 'costs' provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case."
14 Their Honours also said:
"'Costs' in the conventional sense means remuneration for work performed by a solicitor or solicitor's clerk".
15 Further:
"To use the Rules to compensate a litigant in person for time lost would cut across the clear intent of the Rules."
16 Their Honours said at p 410:
"Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or a practitioner's employees. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules."
17 In Cachia their Honours relied upon the reasoning in London Scottish Benefits Society v Chorley [1884] 13 QBD 872 at 875 where it was said of a litigant in person:
"When an ordinary litigant appears in person he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket. He has to pay the fees of the Court, that is money paid out of pocket; but for loss of time the law will not indemnify him."
(Page 6)
18 In Cachia their Honours also referred to the words of Sir Gordon Willmer in Buckland v Watts [1970] 1 QB 27 at 37-38 where his Honour said:
"What a successful party who has got an order for costs is entitled to recover falls, as is well known, under two headings. One heading covers his disbursements; that is to say, money which he has actually had to pay out to other people, such as witnesses, counsel, professional advisers and so forth. The other heading is described as 'costs'. This is intended to cover remuneration for the exercise of professional legal skill…"
19 At 414 in Cachiatheir Honours said:
"Taxation is to take place not at large, but 'on a party and party basis.' Taxation on a party and party basis is required to be in accordance with the relevant Table in Schedule G and that makes no provision for the reimbursement of a litigant for time lost in the preparation or presentation of his case. It does provide for solicitor's costs which have been incurred."
20 At p 417 their Honours said:
"The disbursements claimed by the appellant and disallowed upon taxation were on the one hand travelling expenses in addition to a witnesses fee for preparation and, on the other hand travelling expenses to hear judgment. Either the appellant was entitled to a witnesses fee or he was not; he was not entitled to travelling expenses in addition to or in lieu of the fee. And since the appellant was not entitled to any recompense for his appearance in Court to hear judgment, it was, we think, within the discretion of the Taxing Master to disallow any travelling expenses as an out of pocket expense incurred for that purpose. They were not an out of pocket expense which would have been recoverable by him or his solicitor in this case had he been legally represented."
21 It follows from the reasoning of the Justices of the High Court in Cachia (supra) that in my opinion in this case the appellant is only entitled to monies he actually disbursed in order to advance his appeal, subject to the qualification that he is not entitled to expenses arising from necessary attendances by him for the hearing of matters in connection with his appeal. In that regard he is in the same position as a litigant who attends court where he has legal representation. In such a case, the litigant
(Page 7)
- is not entitled to his expenses of attending at the court. The situation is the same where the litigant does not have legal representation.
22 Having the above comments in mind, in my view, a litigant in person is entitled to necessary disbursements he must pay to prepare and lodge his appeal and also to those expenses he must pay in connection with necessary attendances at court or other places to lodge documents. He is not entitled to his expenses of attending court for hearings.
23 Applying the above principles to this case, in my opinion, the appellant is entitled to the reimbursement of his expenses for serving documents on 19 April 2001, 24 April 2001, 13 June 2001, 14 June 2001, 27 June 2001 and 31 July 2001 - say, $50. He is also entitled to reimbursement of his costs for transcripts, police record and complaint - $97; exhibits - $36; costs of preparation of documentation and other photocopies - $238; appeal book binding - $22.75; other necessary costs for paper, files, plastic sleeves etc - say $100 making a total of $543.75.
24 I am aware that the abovementioned sum is significantly less than the appellant was initially offered on a without prejudice basis; also that it is a poor recognition for his efforts. However, in my view that is what the present law provides. If it is thought to be insufficient, it is a matter for the Legislature to change if it thinks fit.
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