Hariz v NSW Director of Public Prosecutions [2021] NSWDC 130 | Case summary

Judgment

On 9 March 2020 I allowed an appeal against a conviction entered against Mr Hariz in the Local Court on 25 September 2019. Mr Hariz then applied for both a costs certificate under the Costs in Criminal Cases Act 1967 and costs under the Crimes (Appeal & Review) Act 2001.
That application was heard by me on 3 July 2020. Although Mr Hariz was given the opportunity after that hearing to adduce evidence of his actual costs, he failed to avail himself of that opportunity. The matter was then listed for judgment on 28 August 2020. Mr Chrysostomou, of Counsel, appeared for Mr Hariz on that day. Before delivering my judgment I brought to the parties' attention that no evidence had been adduced as to Mr Hariz's actual costs and that my judgment was to be made on that basis. Mr Chrysostomou did not make any application despite this. After dealing with another matter in my list on that day, I delivered judgment and ordered the respondent to pay Mr Hariz's costs in the Local Court in the amount of $9,000 and his costs of the proceedings in the District Court in the amount of $12,000.
Later that morning, Mr Chrysostomou applied for those orders to be set aside to allow Mr Hariz to adduce evidence of his actual costs. I refused that application but indicated that I would consider any application made by way of notice of motion.
On 5 November 2020 Mr Hariz filed a notice of motion seeking orders setting aside the orders made on 28 August 2020. The basis for the motion was that he was denied procedural fairness. The respondent consented to the motion but did not concede any denial of procedural fairness. I allowed the motion and made further orders for evidence. Once again, no evidence was filed in accordance with my orders. When the matter came on for hearing on 5 March 2021 Mr Hariz appeared for himself. He sought an adjournment to obtain the opinion of a costs assessor. Given the history of the matter and the lateness of the application I refused the application. Mr Hariz then tendered a bundle of documents he said were for his legal costs relating to the proceedings in both the Local Court and District Court. On that basis, and absent any objection, the documents were admitted into evidence. The Director of Public Prosecutions was given the opportunity to file written submissions addressing those invoices.

The Invoices

Mr Hariz claimed the amounts shown in the following invoices:
It would be surprising if it were true that Mr Hariz had in fact incurred this amount of costs in respect of a relatively straightforward hearing in the Local Court, a hearing of an appeal (on the same evidence) and a costs application. However, I am not satisfied that he has in fact incurred these costs in respect of this matter and, to the extent that any costs do relate to this matter, I am satisfied that they are excessive and to make an order that even approached the amount claimed would be both unjust and unreasonable.
There are several reasons for these conclusions. First, there is no evidence of any fee disclosure from any of the lawyers, let alone a fee agreement. Secondly, the dates of more than half of the invoices (1, 3, 4, 5, 10 and 11) post-date the hearing on costs and some included charges for work performed well beforehand (as early as June 2018: see no. 4). There is no explanation for that in the evidence. Thirdly, much of the description of the work done appears on its face not to relate to this matter (as opposed to other matters which were disposed of in the Local Court and were not the subject of the appeal). For example, Mr Chrysostomou's invoice (no. 4) includes charges for reading correspondence from the Department of Education on 6 June 2018 and two days' brief fee in July 2019. Those were not part of this matter which was heard in the Local Court in September. Many examples of this type are set out in Annexure A to the submissions for the respondent dated 27 August 2020 and need not be repeated.
Simply put, these several matters reveal that, contrary to the basis on which the invoices were tendered, and admitted, so much of the work included in them are irrelevant to these proceedings that I cannot be satisfied of everything that, in fact, related to the proceedings. Of particular note are invoice no. 9 (Greg Smith SC), that relates to a breach of AVO, and no. 8 (One Group Legal), that relates in part to proceedings in the Bankstown Local Court.
Fourthly, to the extent that I can be satisfied that the work shown in the invoices do relate to these proceedings they are clearly excessive. I do not mean to say either that the rates charged were wholly unjustified or that I am satisfied that the work charged was not done: I make no finding about either. What I mean is that the charges were not reasonably necessary for the proper preparation and conduct of the matter: first, as I said in my first judgment, senior counsel was unnecessary. Secondly, the solicitors (no. 3) charged for 28 hours of conferences, 9 hours of preparation and 286 emails and for 6 hours court appearance on the costs application.
There was some complication in the issues to be resolved, but Counsel was briefed and appeared. Indeed, and this is the third point, two Counsel were briefed (see no. 5). No explanation is given for this and none is apparent. Fourthly, invoice no. 10 relates to video production services undertaken between 30 April 2020 and 8 June 2020. There was no video in evidence on the costs application.
Fifthly, invoice no. 11 appears to relate to charges for work transcribing recordings of telephone conversations between Mr Hariz and an Alba Ramil. Neither those recordings, nor transcripts, of them were in evidence in these proceedings.
Having closely reviewed the new evidence now relied upon by Mr Hariz, I remain of the view that the appropriate amounts of costs to be ordered are those set out in my first judgment.
In my first judgment, I gave the following reasons for the quantification of the costs orders: "41 The matter was heard in the Local Court before His Honour Magistrate Barko over two days on 2 September 2019 and 25 September 2019. On the first day, the applicant was represented by two counsel: Mr James QC who appeared with junior counsel, Mr Chrysostomou, in respect of the matter concerning Ms Garber, and Mr Chrysostomou in respect of the matter concerning Ms Griffin. The latter proceedings were dismissed for lack of a prima facie case and the former continued to a final hearing. On the second day, the applicant was represented by different counsel, Jones (there is no other identifying feature other than that name). It appears that Jones was instructed by a firm of solicitors, but there is no evidence that those solicitors were present at Court. The applicant was found guilty and sentenced. Subsequently, Mr Chrysostomou appeared again to apply for costs in the Griffin matters. 42 Given the nature of the matter, which involved a relatively straightforward, summary hearing, I do not think that it was reasonably necessary for there to be two counsel briefed to appear at the first day of the hearing. Even though there were legal issues involved, that was not beyond the capacity of junior counsel. However, although it is difficult to discern how much time was spent at Court on each day of hearing, long experience shows that counsel may have to be at Court for much longer than appears on a transcript, not just waiting for the matter to be mentioned, but in conference with the applicant and discussing the matter with the prosecution. For that reason, I consider that it is both reasonable and just to allow for two days' fee on hearing for junior counsel. 43 Again, in light of the issues involved, a reasonable amount of preparation would have involved one day including reading and conference. 44 It is appropriate to determine counsel's fees by reference to a daily rate. That is not only because it is a well-established method by which barristers charge fees, but also facilitates an assessment where the actual hours spent are unknown. The determination of a just and reasonable amount for counsel's daily rate must take into account some level of experience but also the relative difficulty of the matter. As I have said, this was not a matter that was so difficult that it warranted senior counsel, however, there was sufficient complexity to require at least some experience in practice. Doing my best, and having regard to past experience of rates regularly charged by junior counsel in different jurisdictions, it is appropriate to apply a daily rate of $3,000. 45 The amount for professional costs which I consider just and reasonable in connection with the hearing in the Local Court is $9,000. 46 On the appeal, the Court may order costs that it considers just if the preconditions to the power have been met. Again, for the reasons I have given, those preconditions have been met and I consider it just that there be an award of costs. 47 Although it is not necessary to specify the amount of costs to be awarded, it is only just to do so, in order to avoid further costs the parties may incur in the determination of that issue. 48 I will apply the same process of reasoning to the issue of costs in this Court as in respect of the proceedings in the Local Court. Although this Court was exercising appellate power, it is an appeal by way of rehearing on the papers. Again, I do not consider that it was reasonably necessary for senior counsel to appear, and consider that the appropriate daily rate is $3,000. Again, there were effectively two hearing days before me: one for the appeal and one for the question of costs. I was assisted on the second day by written submissions for which I would allow one day and a further one day of preparation for the hearing of the appeal itself."
Nothing in the invoices now relied on by Mr Hariz changes my view about the amount of costs that are just and reasonable. As Mr Hariz was unsuccessful in persuading me otherwise with evidence that he ought to have adduced prior to the date of that judgment, he should pay the respondent's costs incurred since 28 August 2020 as assessed or agreed.

Hariz v NSW Director of Public Prosecutions

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Judgment (4 paragraphs)

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