WS v Gardin
[2015] WASC 97 (S)
•21 MAY 2015
WS -v- GARDIN [2015] WASC 97 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 97 (S) | |
| Case No: | SJA:1068/2014 | ON THE PAPERS | |
| Coram: | MITCHELL J | 21/05/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant's costs fixed in the sum of $22,970.70 | ||
| B | |||
| PDF Version |
| Parties: | WS JOHAN ANDRE GARDIN |
Catchwords: | Costs Successful appeal against conviction Indictable offence tried summarily in the Children's Court of Western Australia Where parties ordered to file further material after the hearing Turns on own facts |
Legislation: | Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA), item 23(b), item 33 Official Prosecutions (Accused's Costs) Act 1973 (WA) |
Case References: | Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S) The State of Western Australia v G (a child) [2009] WASC 234; (2009) 201 A Crim R 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
JOHAN ANDRE GARDIN
Respondent
Catchwords:
Costs - Successful appeal against conviction - Indictable offence tried summarily in the Children's Court of Western Australia - Where parties ordered to file further material after the hearing - Turns on own facts
Legislation:
Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA)
Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA), item 23(b), item 33
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Result:
Appellant's costs fixed in the sum of $22,970.70
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Fordham & Roast
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S)
The State of Western Australia v G (a child) [2009] WASC 234; (2009) 201 A Crim R 1
- MITCHELL J:
Background
1 On 20 March 2015, I allowed an appeal by the appellant in respect of his convictions in the Children's Court of Western Australia of one count of indecently dealing with a child and two counts of sexually penetrating a child.
2 I allowed the appeal on 3 of the 8 grounds ultimately advanced, set aside the convictions and ordered a retrial. The appellant now seeks an order awarding him costs in the amount of $35,620.70 in respect of the appeal. The respondent accepts that an award of costs to the appellant is appropriate in the circumstances, but contends that the award should be only $6,828.20.
3 The costs sought by the appellant are payable under the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Act). As the appellant's convictions were set aside, he is 'successful' within the meaning of s 4(2)(a)(iv) of the Act. It is accepted by all parties that an award of costs may be made under the Act in respect of an indictable offence which has been tried summarily in the Children's Court.1
4 Section 5(1) of the Act provides that, subject to the Act, a successful accused is entitled to his costs. Section 5(3) of the Act provides that:
Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
5 Section 5(5) of the Act 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 costs determination (as defined in the Legal Profession Act 2008 section 252).
6 The relevant scale in respect of an appeal to this court is Table B to the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) (Scale).2
Disputed items
7 The disputed items claimed by the appellant include $13,530 for preparing the 'Appellant's Case' (item 23(b) of the Scale), $4,510 for preparation of appeal for hearing (item 23(f) of the Scale) and $10,890 for counsel fee on hearing (item 23(g) of the Scale). In respect of those items, the respondent contends that only $5,775 should be allowed in respect of counsel fee on hearing.
8 The appellant also claims $4,059 in respect of an evidence summary and $1,578.50 in respect of further written submissions prepared after the hearing. This work is claimed under item 33 of the Scale. The respondent contends that no allowance should be made for this work.
9 The appellant did not press for the costs of the trial in the Children's Court, accepting that those costs were not available under the Act where a conviction is set aside and a retrial ordered.3 The appellant does not seek to recover any fees which are greater than those set out in the scale.4
10 I have considered whether the assessment of costs should be referred to a taxing officer.5 However, given the limited issues in dispute, the nature of those issues and the familiarity I have with the matter, I have concluded that it is appropriate for me to fix the costs of the appeal.
Item 23(b) of the Scale: appellant's case
11 The respondent contends that item 23(b) of the Scale relevantly relates only to an appellant's case required to be filed in the Court of Appeal, as provided for in r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). As item 23 concerns both appeals to the Court of Appeal and single judge appeals, and item 23(b) refers to 'relevant forms and all annexures', there seems to me to be merit in the respondent's submission. In my view item 23(b) of the Scale is not applicable to the present appeal where no appellant's case was required to be filed. If the item was intended to cover any written submissions filed in an appeal, it could easily have said so. I will not, therefore, make any allowance under this item.
Item 23(f) and item 23(g) of the Scale
12 The respondent also submits that item 23(f) and item 23(g) overlap, so that no allowance should be made under item 23(f) of the Scale. I do not accept that submission. Separate provision is made for both matters in the Scale and I see no reason why an allowance should not be made in respect of work done by a practitioner under both items merely because the same person acts as both solicitor and counsel in the appeal.
13 The respondent submits that the maximum amount for counsel fee on hearing should be halved as only three of the original nine grounds of appeal were ultimately successful. The respondent relies on s 6(c) of the Act as providing for that outcome. I do not accept that submission. Section 6(c) only applies where a party has done something 'calculated to prolong the proceedings unnecessarily or cause unnecessary expense'. I do not see any basis for contending that the unsuccessful appeal grounds were included for that purpose. I regarded all but one of the grounds ultimately maintained as fairly arguable, and in my view it was reasonable for the appellant to advance the grounds on which leave to appeal was granted.
14 In light of the fact that I have made no allowance under item 23(b), and given that the work done in preparing written submissions was claimed under that item, I propose to allow the full scale amount for item 23(f) and item 23(g) respectively.
Post-hearing work
15 I also consider it appropriate for me to award the costs claimed for work done at the court's direction in relation to the preparation of an evidence summary and further written submissions. In my view, it is appropriate that the appellant recover these costs which were required to be incurred by the court, and in my view, the amounts claimed by the appellant are reasonable given the work involved.6
Conclusion
16 I therefore award the appellant the following amounts in respect of the costs of the appeal:
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17 I therefore order that the amount of the appellant's costs in this court be fixed at $22,970.70, and direct that a certificate be issued under s 9(a) of the Act in that amount.
1 See The State of Western Australia v G (a child) [2009] WASC 234; (2009) 201 A Crim R 1.
2 Item 8 of the Schedule to the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA), in respect of costs incurred on or after 1 January 2015, and item 8 of the Schedule to the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA), read with s 5 (definition of 'amend') and s 16 of the Interpretation Act 1984 (WA), in respect of costs incurred after the commencement of the appeal and prior to 1 January 2015.
3 See Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182.
4 Under item 7 of the Schedule to the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) and item 7 of the Schedule to the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA).
5 See Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S) [47] - [48].
6 Costs under item 33 are only to be awarded between a law practice and its client unless the court orders otherwise: cl 9(b) of the Schedule to the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA). In this case it is appropriate to order otherwise.
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