Criminal law and procedure - Appeal against costs - Refusal to hear counsel's submissions - Whether substantial miscarriage of justice

Criminal Appeals Act 2004 (WA), s 14(2)

Criminal Procedure Act 2004 (WA), s 59, s 67

Magistrates Court Act 1989 (Vic), s 131

Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5

1 This is an application for leave to appeal and for the hearing of the appeal against the decision of a Magistrate as to the quantum of costs ordered for a successful defendant in a summary prosecution.

2 The appeal raises the question of the approach to be taken by a judicial officer in determining such quantum.

3 I first describe the background to these proceedings. I then describe the proceedings, before considering the arguments of the parties. The final section of this judgment is my conclusion and orders.

4 The applicant was charged that, on 11 March 2005, he assaulted the complainant, Natalie Kaye Boyle, and caused her bodily harm, contrary to Criminal Code, s 317(1).

5 On 22 July 2005, the applicant first appeared in the Geraldton Magistrates Court on the charge. He entered a plea not guilty and the matter was adjourned to a call over on 11 August 2005.

6 On 11 August 2005, at the callover, a hearing date was set, for 16 January 2006.

7 On 3 January 2006, the solicitors for the applicant were informed by the prosecutor that the complainant might not be able to attend the trial on 16 January 2006. On 10 January 2006 the solicitors for the applicant were informed by the prosecution that there would be an application to vacate the hearing date.

8 On 12 January 2006, at a re-listed hearing of the matter brought on by the prosecution, there was an application to vacate the hearing date. The prosecutor gave the reason as that the complainant had given birth and would be unable to attend the hearing on 16 January 2006. A new hearing date, of 1 March 2006, was set.

9 It is common ground that, by 12 January 2006, the solicitors for the applicant had fully prepared for trial, and were ready to proceed.

10 By 23 February 2006, the solicitors for the applicant had determined there was not any realistic prospect of them conducting a trial on 1 March 2006, as they had another trial listed for that day. The applicant lived in Carnarvon, and would have to travel to Geraldton for the trial. The prosecutor agreed that the trial should not go forward on that day.

11 On 27 February 2006 the solicitors for the applicant applied for the hearing date of 1 March 2006 to be vacated. The applicant was granted, and the matter adjourned to 1 March 2006 for a new hearing date to be set.

12 On 1 March 2006, a new hearing date was set, of 18 September 2006.

13 On 18 September 2006, there was a trial in the Geraldton Magistrates Court, before Magistrate Sharratt. The trial, which had been listed to start at 10 am, commenced at 11.45 am and finished at approximately 5 pm. His Honour then delivered a judgment acquitting the applicant.

14 Immediately following the delivery of the judgment of acquittal, before the Court rose, counsel for the applicant applied for costs and explained the history of the proceedings in brief. She submitted that the costs under the relevant scale should include, both the day of trial (including preparation of the case for trial), and an allowance for preparation for where the trial does not proceed. No other description of work appears in counsel's submissions as to costs in the transcript.

15 Following an exchange with counsel, the learned Magistrate rejected the submission, and awarded costs of $2,250.

16 By appeal notice dated 16 October 2006, the applicant applied for leave to appeal against the learned Magistrate's costs order.

17 By order of 21 November 2006, Blaxell J ordered that the application for leave to appeal and the appeal be heard together.

"His Honour erred in law in that his decision as to costs was not in accordance with the scale fixed from time to time by a legal costs determination and was therefore not in accordance with the requirement under section 5(5) Official Prosecutions (Accused's Costs) Act 1973."

19 Later in the appeal notice, under the hearing "Particulars of Costs - Schedule of Costs", the applicant sets out a description of a claim alongside the relevant item of the relevant scale for the following:

• Item 4 of Scale: trial, including preparation;
• Item 6 of Scale: allowance for preparation where trial does not proceed; and
• Item 7 of Scale: counsel fee for attending court to remand appearance, directions hearing, status conference, mention, callover and reserved decision or other appearance not otherwise accounted for.

20 Below, I will set out the descriptions in the relevant scale for those item numbers, and subsequently I set out the amounts claimed for each.

21 Immediately after the listing of the items in the appeal notice, under the hearing "Particulars", the following appears:

"4.1 His Honour indicated that he was not willing to hear extensive submissions as to costs

4.2 His Honour had pre-judged the decision as to costs and indicated to this effect by saying words to the effect that regardless of the submissions of Counsel the costs allowance would be no more than $2,200.00 [sic $2,250.00]."

22 Counsel for the applicant, in her oral argument before me, made it plain that the appeal was in respect of what she contended was the failure of the learned Magistrate properly to consider the applicant's claim for costs under both the relevant scale, items 4 and 6, and the failure to allow an opportunity for the applicant to put a claim for costs under item 7. Counsel for the respondent, as I understood his position in the hearing, was content to argue the appeal on that basis.

23 To evaluate the contentions of the applicant's counsel, it is first necessary to identify the nature of the decision as to the quantum of costs the learned Magistrate was called upon to make.

The power to order costs in summary proceedings

24 The power to order such costs appears in Criminal Procedure Act 2004 (WA), s 59, read with Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5 and the Legal Practitioners (Magistrates Court) (Criminal Jurisdiction) Determination 2005 (WA) ("the 2005 Determination").

25 The Criminal Procedure Act, s 67, which it is common ground applied to the prosecution in this case, provides in material parts, as follows:

"(1) Subject to the Official Prosecutions (Accused's Costs) Act 1973 and this section, a successful party to a prosecution is entitled to the party's costs.

...

(4) A court may reduce the costs that it would otherwise have awarded, or refuse to award costs, under this section to a party if -

(a) any act or omission of or caused by the party (other than an act or omission that is the subject of a charge) was unreasonable in the circumstances and contributed to the institution or continuation of the case; or

(b) any act or omission of or caused by the party during or in the conduct of the case was calculated to prolong the case unnecessarily or cause unnecessary expense."

26 I note below that it was common ground that s 67(4) in fact had no application to this case.

27 The Official Prosecutions (Accused's Costs) Act, s 5, provides in material parts as follows:

"(1) Subject to this Act, a successful accused is entitled to his costs.

(2) Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein but the accused is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour.

...

(5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a legal costs determination (as defined in the Legal Practice Act 2003)."

28 The 2005 Determination provides in material parts as follows (Sch, cl 5(2) and Table to cl 5, items 4, 6 and 7):

"(2) Each item of the Scale of Costs specifies a dollar amount. The purpose is to indicate the maximum amount for the work indicated in the item, but on assessment, less might be allowed. In no respect is the Scale to be seen as providing a minimum charge for any work. The reason for stating the number of hours estimated to be necessary to perform each of the items of work described in the Scale is to provide guidance to the Assessing Officer when dealing with the question of costs so that the Assessing Officer has some idea how much time is reasonably necessary to perform the work in most cases.

Table to Clause 5

Magistrates Court Criminal Jurisdiction Scale of Costs 2005

First day of trial including preparation of case for trial and counsel fee

Allowance for preparation where the trial does not proceed or the prosecution offers no evidence

Counsel fee for attending court to remand appearance, directions hearing, status conference, mention, callover, reserved decision or other appearance not otherwise accounted for

29 It will be seen that 2005 Determination, items 4, 6 and 7 correspond to the three items under the applicant's "Particulars of Costs - Schedule of Costs".

The quantum of costs in summary proceedings

30 The quantum of costs in such proceedings is by the 2005 Determination in my view made to depend upon the Assessing Officer in his or her judgment being satisfied that the amounts claimed represented payment for work that was reasonably necessary in respect of each of the items of work for which a claim for costs is made. This is subject to the maxima provided for in the 2005 Determination, and to the possibility of a determination being made in terms of Criminal Procedure Act, s 67(4).

31 No question arises in this case of the maxima (in terms of total amount claimed or hours spent) being exceeded, or of a determination being made in terms of the subsection

32 In particular, in respect of the maxima, I note, from the entries under the applicant's "Particulars of Costs - Schedule of Costs", that the practitioner in respect of whose hours the claims are made in this case was a junior practitioner, for whom the claim is based on the maximum hourly rate allowed by the 2005 Determination ($198 per hour). The relevant 2005 Determination items set maximum amounts as well as times (in hours). The maximum amounts in the 2005 Determination for the items referred to under the "Particulars", items 4, 6 and 7, are all based on the times having been worked by a senior practitioner at the maximum hourly rate allowed by the 2005 Determination ($286). The entries under the "Particulars" are all for the maximum number of hours allowed for the items, and for amounts less than the maximum amounts.

33 In my view of the legislative complex I have described there is no room left for any other exercise of judgment by the Assessing Officer in respect of quantum than that involved in determining whether the work claimed for was "reasonably necessary" (2005 Determination, Sch, cl 5(2)).

34 I contrast that complex in that respect with the legislation considered by the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. That legislation was Magistrates (Summary Proceedings) Act 1975 (Vic), s 97(a) and (b). As set out in the judgment of Dawson J, at 547, those provisions were as follows:

"(a) Where the Court makes a conviction or order in favour of an informant or complainant, the Court may order the defendant to pay to the informant or complainant such costs as the Court thinks just and reasonable;

(b) Where the Court dismisses the information or complaint, or makes an order in favour of the defendant the Court may order the informant or the complainant to pay to the defendant such costs as the Court thinks just and reasonable."

35 Counsel for the respondent put to me in his written submissions that Latoudis (supra) was, with another authority I will shortly reach, authority for the proposition that the award of costs under the legislative complex in this State which I have set out is "not necessarily mandated on an indemnity basis, and lies within a Magistrate's unfettered discretion". In his oral submissions, however, counsel appeared to concede that the discretion is rather more confined than that written submission might be taken to suggest.

37 Latoudis (supra) was concerned with the matter of denial of costs to a successful defendant, where there was no legislative provision corresponding to Criminal Procedure Act, s 67(1) and Official Prosecutions (Accused's Costs) Act, s 5(1). It was not concerned with the question of on what basis costs should be ordered where a successful defendant, in Victoria, is awarded their costs: see the characterisation of Latoudis in Norton v Morphett (1995) 83 A Crim R 90 (Vic, CA), per Phillips JA, Ormiston and Hayne JJA agreeing, at 93; see also Hayne JA, at 101.

38 Rather more relevant to this case, at least on its face, is the other authority cited to me by the respondent for the proposition originally contended for. That authority is Norton (supra). The legislation in Victoria relevant to that decision was Magistrates Court Act 1989 (Vic), s 131(1) and (2), which as set out in the judgment of Phillips JA, at 95, was as follows:

"(1) The costs of and incidental to all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.

(2) Sub-section (1) applies unless it is otherwise expressly provided by this or any other Act or by the rules."

39 There was no delegated legislation (in the form of rules of court) "governing the award of costs in criminal proceedings in the Magistrates Court": Norton (supra), per Phillips JA, at 95. There is a contrast in that respect with the position in this state, under the 2005 Determination.

40 All of the judgments in Norton (supra) confirmed that case was about the exercise of the discretion of the Magistrate in fixing the quantum of the costs he allowed to the successful defendant in that case: Ormiston JA, at 91; Phillips JA, at 95; and Hayne JA, at 102. In their Honours' approach to that question, the matter reduced to one of whether or not the Magistrate had sought to employ the standard of reasonableness in fixing costs, and whether he had departed from applying that standard: see per Phillips JA, at 99 - 100; and per Hayne JA, at 102.

41 In that last respect, the judgments in Norton (supra), it appears to me, have relevance to the position in this State. However, whether or not the standard of reasonableness as explained in Norton, which was said to be one of the reasonableness in the incurring of the cost and the reasonableness of the amount (per Phillips JA, at 99; and per Hayne JA, at 102), was the standard in this State was not explored in argument before me, and does not, in my view of the claims made in this case, arise.

42 I turn now to consider the two contentions for the applicant that I described earlier.

The learned Magistrate's consideration of the costs in relation to 2005 Determination, items 4 and 6

43 Before his Honour, counsel for the applicant, who was also counsel before me, after referring to two appearances, followed by a listing for hearing on 16 January 2006, and then the two applications for vacating and re-listing of the trial dates, one for the prosecution, the other for the defence, said this:

"So under the relevant schedule, which is the [2005 Determination] I am seeking, under item 4, the 12 hours which are allowed for first day of trial, including preparation, which is under my rate, which is $188 [sic: this was clarified before me as the 2005 Determination's $198] an hour, $2,376. Then there's item 6, which allows - there's an allowance for preparation where the trial does not proceed or the prosecution offers no evidence. Now there's 8 hours allowed in that case. I'd ask for two times that item, which is 16 hours."

44 Before me, counsel for the applicant explained that the 16 hours was an error, as the maximum allowed by the 2005 Determination was eight hours for item 6, and there was no intention to claim for more than that.

45 After this submission before the learned Magistrate, there ensued the following exchange between counsel for the applicant and the learned Magistrate.

46 I note in passing that at no point in the hearing of the claim as to costs, here or elsewhere in the transcript, was there any participation invited from or offered by the prosecutor.

"HIS HONOUR: You're joking. You are joking.

MS GIUDICE: This case -

HIS HONOUR: Sixteen hours?

MS GIUDICE: This case - this case, your Honour, had to be get [sic] up - - got up for trial twice.

HIS HONOUR: You don't have to get a trial up taking 8 hours each time, when one goes off. You have the same notes that you had ready for the first trial. You don't have to go through it all again.

MS GIUDICE: Your Honour, in this case there was a change in counsel, which is not -

HIS HONOUR: Well, that's - that's not our fault. That's yours. You could have had Mr Arndt, if wanted still. He's still down there, isn't he? He still works there?

MS GIUDICE: It was actually Ms Plaisted, she was counsel.

HIS HONOUR: All right. Look, you can ask for what you want, but I'm not going to give you any more than $2250 and that's it.

All right. Thank you. You are free to go."

47 It seems to me from this exchange that his Honour was concerned at least about the limitation in the number of hours allowed for under item 6.

48 However, it is possible his Honour was also concerned that the claim under item 6 might overlap with that under item 4. That is, the applicant might be claiming for more work than was reasonably necessary for one item, as the work had already been done under the other.

49 Such a concern, it seems to me, would be well placed if it was properly grounded. Counsel for the applicant put to me, and counsel for the respondent conceded, that item 6 was not restricted to cases where no trial occurred, but was capable of including cases where a listed trial date was vacated, as in this case. In such a case, however, where the Assessing Officer was satisfied it was not reasonably necessary to do the work on a second occasion, a claim for work of the item 4 or the item 6 sort might not allowed.

50 In this case, counsel for the applicant may have been seeking to reassure the learned Magistrate in that last respect by indicating that, to the extent duplicative work was done, it was because of the change of counsel. It seems to me that the reasonable necessity for the work in such a circumstance, provided that it could be referred to the relevant item, might be capable of being demonstrated to the learned Magistrate's satisfaction. However, the learned Magistrate was not, it seems to me, allowing counsel for the applicant to make such a demonstration. In that respect, it seems to me that his Honour erred in his approach to his task, which was to consider the case for the quantum of costs being put forward by counsel for the applicant in accordance with the 2005 Determination.

51 Counsel for the respondent put to me that I should not readily conclude that the learned Magistrate had not approached his task as he should. In particular I should note the standard for evaluation of the reasons for decision given by judicial officers in the position of the learned Magistrate, that they need not be a full or detailed statement. This standard is well established by such authorities as Nevermann v The Queen (1989) 43 A Crim R 347, per Malcolm CJ, at 350. I note that this standard might have particular application to the performance by a magistrate of the task associated in this Court with the work of a taxation officer.

52 Counsel for the respondent put to me that I should understand his Honour to be making an overall assessment of the work done in this case, or at least the work done referable to 2005 Determination, items 4 and 6, as being that subsumed in the figure of $2,250. His Honour was not required to apportion the work across the several items involved.

53 Counsel for the respondent put to me that in this regard I should particularly note that the learned Magistrate was not only the trial Judge in the case, and the presiding judicial officer at one of the applications to vacate the trial date, as well as at least one other hearing before trial. He also had the prosecution notice before him, showing the full history of the proceedings in the Magistrates Court.

54 I agree that the learned Magistrate was not in error in failing to expressly apportion the costs he awarded between the various items in the 2005 Schedule he considered applicable.

55 However, in not permitting counsel for the applicant, as it appeared he had not done, to respond to the concern about duplicative costs, his Honour appears to have been indicating there was no response that could satisfy him. This, it appears to me, was an error in his approach to his task as I have explained it.

Costs in relation to 2005 Determination, item 7

56 The second of the two contentions of counsel for the applicant, as I have described them earlier, is that the learned Magistrate failed to allow an opportunity for the applicant to put a claim for costs under item 7.

57 It follows from my consideration of the previous ground that the learned Magistrate erred in his approach to his task in this respect also.

58 There was, of course, no argument shown in the transcript as directed to him on this item, as opposed to that directed to items 4 and 6.

59 It might be said that counsel for the appellant ought to have pressed a submission on further costs items, even although the learned Magistrate appears not to have permitted her an opportunity to do so. Of course, he might have provided that opportunity by asking whether or not she had any further submissions on costs.

60 In some situations, it might be reasonable to expect counsel to press such a submission, as where it is apparent the judicial officer has made a mistake in assessing whether or not submissions had ceased. A failure to do so in the absence of such an indication might in some circumstances at least be taken to be a forensic decision which should not ground an appeal against the resultant decision.

61 However, in this case, on the transcript as I read it, the learned Magistrate had indicated a view of the limit of the costs he would allow. In those circumstances, it seems to me that the applicant might have considered that the learned Magistrate had in fact ruled on any such submission. Such a ruling would have been even more clearly an error than the corresponding position under the previous heading in these reasons. If the learned Magistrate had not meant to make such a ruling, then it seems to me his words indicated otherwise.

The application of the proviso in appeals of this sort

62 Counsel for the respondent put it to me that, even if there was an appealable error, at least if it were confined to the second of the applicant's two contentions, the Court should dismiss the appeal, as "no substantial miscarriage of justice has occurred" (Criminal Appeals Act 2004 (WA), s 14(2)).

63 I took this argument to be by reference to the significance of the sums involved. The amounts claimed by the appellant under the heading "Particulars of Costs - Schedule of Costs" are as follows:

• 2005 Determination item 4: $2,376.00
• 2005 Determination, item 6: $1,584.00
• 2005 Determination, item 7: $396.00

64 The difference that would result from upholding the applicant's appeal, but only as to the matter of item 7, would be $396.00, which would take the appellant's total to $2,646.00, an increase of 15 per cent.

65 I am not convinced that, even if the difference were not greater than that last indicated, I should consider the proviso engaged.

66 In any event, the difference is significantly greater, because I consider counsel for the applicant has made good both of her contentions. That is, the appeal should be upheld as to the matter of items 4, 6 and 7. This might, depending on a reconsideration of the applicant's claim for costs, a matter to which I shortly return, mean that the difference is that between $2,250 and the total of the claims above, of $4,356.

67 I do not consider this to be a case for the application of the proviso.

68 I have concluded that leave to appeal should be granted and that the appeal should be allowed.

69 I asked counsel at the hearing before me whether or not I should order that, in such an event, the matter of the determination of the quantum of costs be remitted to the same Magistrate, that is, to Magistrate Sharratt, for him to make with the benefit of these reasons. The alternative, as I put it to counsel, was for me to make that determination.

70 I further indicated that, whoever made the determination, it would be necessary for an opportunity to be afforded for further submissions as to quantum to be made, both by the applicant and the Respondent. Such submissions should be directed to the reasonable necessity of the work claimed for under the applicant's "Particulars of Costs - Schedule of Costs", which I understood to be the only basis on which the applicant was claiming his costs.

71 In the event, both counsel agreed that the matter should be sent back to the same Magistrate for the determination I have described. That is my preferred course. That is because the learned Magistrate has a better prior understanding of the case than I have, which would make for a more efficient hearing of the costs determination. Neither party objected to him undertaking the task.

72 Further, the learned Magistrate comes to the task with a background in proceedings in his jurisdiction which I do not possess.

73 I would thus quash the learned Magistrate's order as to the quantum of costs in this matter, and remit the making of the determination of such quantum to him to be made with the benefit of these reasons.

74 I will hear from the parties as to the terms of the orders to be made.