R v Martiniello [2005] ACTSC 109

2. The matter arose when on the day that had been set down for the first day of a two week trial the Crown made an application to adjourn the trial on two bases, one that a police who would be required to give evidence was unavailable and secondly that there was certain evidence that was not available to the Crown. It emerged from affidavit material quite properly put before the court by the Crown that the Crown had been aware of the evidential gap for some months and I set out the circumstances of that in some detail in that published decision.

3. It remains the law in the ACT that there is no general power to award costs in criminal proceedings. That is to say, unlike the civil proceedings, costs do not follow the event and indeed the absence of a general power to award costs in criminal proceedings has recently been reinforced by the Court of Appeal in the matter Byrns v Barry [2004] ACTCA 25, following a decision of the full Federal Court in R v Scott [1993] FCA 398; (1993) 116 ALR 703.

4. I was concerned in this matter that there was significant unfairness to the accused who had retained senior and junior counsel for some time to prepare what was clearly going to be a complex commercial criminal trial in the sense that he was facing trial on 11 counts of improperly using a computer for gain but had originally been committed on the basis of theft. There were quite extensive delays in getting the matter from committal to the Supreme Court for trial which I accept that were proper and did not criticise on the basis of the clear complexity of the matter.

5. In my extempore decision on 31 January 2005 I adopted the course of imposing a stay on the prosecution, clearly a matter within the power of any trial judge on the basis that there should be a payment of costs by the Crown to Mr Martiniello to reflect the loss that he undoubtedly occurred by reason of the very late adjournment of the trial. That adjournment was the consequence of a longstanding evidential gap, that had been apparent to the Crown for some months.

6. In the published reasons I made it clear that my order was, as apparent in the order, that the further trial be stayed until the Crown pays the "reasonable costs to be agreed or taxed that the defence has incurred by reason of the adjournment". I note that in written submissions the Crown has put before me the transcript of the oral reasons, the published reasons have been tidied up which again refers to where I said; "The further conduct of this matter be stayed until the Crown pays the reasonable costs, to be agreed or taxed, of the defence" (T 43.28).

7. The question is whether, as has emerged in evidence since that hearing, that should cover cancellation fees. It is apparent from the affidavit of Mr Aulich, instructing solicitor of both 29 September and 19 October 2005, that counsel were retained in the matter pursuant to contractual arrangements which in relation to Mr Bellanto, Senior Counsel, imposed a cancellation fee of the full trial costs should there be, in effect, a cancellation.

8. Mr Everson's contract also sets down a cancellation fee, or is said to set down a cancellation fee, there may be some argument as to precisely the effect of that because Mr Everson seems to have quoted on a one off fee for the trial.

9. The threshold question is whether cancellation fees are properly to be required to be paid pursuant to the former cost order that I made. My short answer is that I do not think that they are. There is no recognition of cancellation fees in the rules of this court and I'm not aware of any practice in the civil side of this court where cancellation fees are generally regarded as appropriately caught within a general form of costs order.

10. The position may be different if there was an express form of costs order at the highest level, the indemnity costs style of order which require solicitor/client costs. But even there there may be some significant public policy issues as to whether the practice of cancellation fees ought be endorsed or encouraged by this court.

11. I particularly make reference to the position on the civil side of the court where in the civil running list its very common for counsel to be engaged from interstate. This court operates civil running list before usually two judicial officers at any one time, the master and a judge, its common to multiple list civil matters, particularly more straightforward running down matters, and the common experience of this court over some decades is that most of those matters settle.

12. If cancellation fees became a common and adopted practice it seems to me it would run real the risk of significantly pushing out costs in those matters which at the end of the day are met out of a statutory public insurer, that is to say the compulsory third party insurance that every motorist is required to pay.

13. I note that the only express decision endorsing the payment of cancellation fees as claimed seems to be the decision of Chatley (Stephen Chatley v Northern Territory of Australia & Alan Jones [2002] NTSC 20) in the Northern Territory, a decision of Master Coolahan in the Supreme Court of the Northern Territory, but in the Supreme Court of the Northern Territory, there is express reference to cancellation fees in their rules and cost arrangements. One can understand why that may well be the case in the Northern Territory given the tyranny of distance and the fact that interstate counsel engaged in the Northern Territory would, often, find it very difficult to find replacement briefs at short notice.

14. I note that in Commissioner of Australian Federal Police v Razzi (No 2) [1991] FCA 267; (1991) 30 FCR 64, Wilcox J refused to endorse what was said to be cancellation costs and made a recommendation that if this was to be an emerging practice there ought be some express practice rules developed by the Law Society or Bar Association. And as far as I'm aware, its common ground, Mr Bellanto indicated there have been no such rules or practice direction promulgated by the Australian Capital Territory Law Society or Bar, and there's certainly been no practice directions promulgated by this court in relation to cancellation costs.

15. The order that I made on 31 January was in effect a paraphrase into a criminal context of a standard form of costs order given in a civil jurisdiction, that is the reasonable costs to be agreed or taxed that has been incurred by reason of the adjournment. It was certainly not in my contemplation there that that was a full solicitor/client costs order for the entirety of what would have been the trial costs. And had there been express evidence about costs arrangements on that day I may have been in a position to be more express in my remarks. I make no criticism of counsel for this, but it was certainly not drawn to my attention that there were in place express agreements between the accused and his counsel which would be said at a later date to give rise to a requirement to pay the full trial costs to counsel by reason of the adjournment.

16. The situation in relation to the trial is that there's been subsequent directions hearings, the Crown has indicated that the material that was missing on the early occasion has now been found, brought into existence by reason of some technical process on an old computer and, as my recollection from the last directions hearing, has been passed to the defence.

17. So the matter is otherwise ready to proceed to trial. It seems to me that the reasonable costs of the agreed or taxed incurred by reason of the adjournment cannot in any way be seen to cover what would have been the full trial costs in any event. I therefore am not minded to proceed down the path of endorsing the cancellation costs. I am minded to order that the matter be put before a taxing authority. I see there's been some correspondence generated in relation to a taxed approach to costs.

18. I formally then rule that I will not make an order pursuant to a cancellation fee basis, I'll stand the matter over to give the parties the opportunity to negotiate a costs agreement, give liberty to parties to apply on 3 days notice. I'll indicate that if agreement cannot be reached I would be minded to follow the normal practice of this court in relation to taxation disagreements and that is to say send it to the registrar for determination.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the Crown: ACT Director of Public Prosecutions