Costs
61 I have set out the orders made by the learned Magistrate for costs at the Local Court. These were purportedly made pursuant to s 215 Criminal Procedure Act 1986. The power of the Court to order costs on a successful summary prosecution against the defendant is in respect of “such professional costs as the Court considers just and reasonable”. In this matter the tyranny of distance was a difficulty for both the prosecutor and the defendant. The proceedings were prosecuted in Tenterfield, almost as far north in the State as one can travel to conduct a criminal case, where the defendant lived. The prosecutor, the RSPCA, based in Sydney had retained counsel and costs were incurred for the prosecutor to travel to Tenterfield. The Magistrate was provided with details of professional costs incurred as well as s 30A costs and the like. The solicitor representing the defendant complained about the extent of costs, particularly travel costs, such as the chartering of a plane by Mr Doherty and the like.
62 The expression “just and reasonable” has been considered in a number of decisions relating to orders for costs either under other Acts, or the repealed s 81 Justices Act, (eg Caltex Refining Company Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 553 (at 560-4): Ly v Jenkins (2001) 114 FCR 237, (2001) FCA 1640).
63 In Caltex Refining Co v MSB, Sully J summarised the position in terms of a costs order that is “just and reasonable” (considering s 52, Land and Environment Court Act, 1979), that the judge must exercise the power to make the order, that the order must be ‘just and reasonable’ and that there be a fair hearing on the merits of the application that the terms of the order finally will be in themselves reasonable, the judge may receive and relevant evidence presented in admissible form as to the terms of the final costs order, only the judge may make a final cost order, it is not permissible for the judge to make an unquantified order for costs and the judge must act judicially displaying sufficiently open process of reasoning to fix a quantum of costs.
His Honour said (inter alia):
“A result which is nothing more than an intuitive stab in the dark is neither just nor reasonable” (at 564).
64 In this matter there are specific costs sought by the respondent (informant) as claimed expenses in the conduct of the hearing at the Local Court. In the circumstances I am required to consider the material presented, which is the material presented before the Local Court, note submissions of the parties at the Local Court in respect of the issue of costs (the usual way of course in which material is presented to the Local Court where there will be less formality than in the District Court and in superior courts), and consider what is claimed in the wider context of the character of the prosecution and the outcome of the prosecution to determine what is “just and reasonable”.
65 In Ly, each of the judges discussed the costs issue by reference to s 81(1) Justices Act (now repealed). Their Honours dealt with the issue of whether the costs ordered were” just and reasonable” on the specific facts of the case, but I note what has been said, for example, of the relevance Cachia v Hanes (1994) 179 CLR 403, in respect of which Justice Moore referred to the “helpful summary” of that judgment by Doyle CJ of the South Australian Supreme Court (at [10]). Costs are for “professional legal services”, including costs incurred by the practitioner, but the indemnity may only be “partial”, they “were never intended to be comprehensive compensation for any loss suffered by a litigant”. Justices Moore and Kiefel held that “costs” referred to “professional legal costs actually incurred in the conduct of litigation” but that the award of costs was “never intended to be comprehensive compensation for any loss suffered by a litigant” (at [101], [159]). Justice Moore extensively covered a number of authorities, holding that there was a wide power to reimburse costs, including investigation costs, but so long as the costs are “just and reasonable”. Justice Kiefel observed that costs are not referrable to disbursements paid to people such as witnesses and advisors and that the Magistrate was “in error” in allowing disbursements paid to witnesses and advisors as costs ([159]).
66 It must be fairly said that the costs issue was not extensively argued before me and to my mind was not particularly well argued before the learned Magistrate, at least in relation to the detail of what was being claimed as costs.
At this point I am not concerned with the costs sought pursuant to s 30A POCAA which call for separate and different consideration to an application for ‘professional costs’ pursuant to s 215 Criminal Procedure Act. The matter is complicated by my finding that the prosecution had not proved beyond reasonable doubt the charge brought pursuant to s 5 POCAA. In the context of considering “just and reasonable costs”, whilst the means of the defendant are not relevant, the circumstances of the prosecution are not either.
The RSPCA is a charitable organisation that performs a very valuable function in our community protecting animals from cruelty, mistreatment and neglect, amongst many other functions. There is no doubt, reading the statements of the inspectors, that the RSPCA sought to assist this defendant, but she was either unwilling or incapable of following advice or embracing the assistance that was being offered.
67 However whilst the RSPCA is a noble charity it is not entitled to special consideration.
Neither is the appellant. I must confess to having some concern at the fact that the case was in fact prosecuted.
This is not a case of cruelty and the RSPCA officers who attended the appellant’s property were well aware of the many difficulties the defendant had both financial, physical and emotional.
It appears, given the character of the allegations against the defendant, that the needs of the situation could well have been met by care for the animals (their return, a matter of no moment) and requiring the defendant to pay for that care.
Instead, this prosecution on the informant’s part necessitated the attendance at a court in a far corner of the State by a barrister and solicitor for the prosecution of the defendant for offences which, on the prosecution’s own case, were at the lowest order.
The number of cattle involved in fact was relatively small. Most importantly, bearing in mind it permeated the prosecution case, was the fact that the cattle were held by the defendant during the period of one of the worst droughts in history. That having been said, the prosecution was commenced, all bar one of the offences have been ultimately proven. I must deal with the current reality.
68 In all the circumstances however, it is not just and reasonable for a global order to be made rubber stamping all costs claimed by the informant for the purposes of the prosecution.
Amongst other matters, in light of the observations of Justice Kiefel in Ly, I do not propose to allow any witnesses expenses. Further, I do not believe it was “just and reasonable” even considering the location of the hearing for the matter to be prosecuted by both counsel and solicitor. The matter was a simple matter, the proof of the guilt of the appellant in respect of the s 8 matters was a straight forward matter.
69 I note in the decision of Caltex Refining Co v MSB, after the distillation of principles relating to s 52 Land & Environment Court Act, Sully J reflected upon the order Bannon J had made in the context of a claim for costs in the sum of $120,232.00, which he reduced to $60,000. Although Justice Sully ultimately did not resolve the issue of costs, the matter was remitted back to the Court below notwithstanding fresh evidence on the point, his Honour amongst other things agreed with Bannon J’s view that a claim for “solicitor/client” costs in such circumstances was in excess of what was “just and reasonable”. Sully J observed that he would agree with the view that “such fact alone required the gross figure suggested in the relevant exhibit to be reduced”. I note in passing also that Justice Sully thought in the context of a summary prosecution in the Land and Environment Court that the sum therein claimed in Caltex Refining Company was “an enormous sum” for the costs of a summary prosecution. In context, a costs order of the character made by the Magistrate here was disproportionate to what was “just and reasonable” for a two day hearing and a day for judgment (at the request of the Court) in the Local Court, albeit in a court away from Sydney.
70 This preliminary view is confirmed by a close examination of what was claimed and “rubber stamped” by the Magistrate. The “professional costs” are itemised with great particularity and clearly are itemised on a “solicitor/client” basis.
The solicitor’s professional costs include on a “time basis” per minute all aspects of the preparation of the matter, travel and attendance at the Local Court. This was charged out at $300 per hour.
The solicitor claimed $10,425 plus $1,042 GST, totalling $11,467 for the first 2 days of the hearing and preparation. This amount is grossly excessive of what is ‘just and reasonable’ in all the circumstances.
There was a claim of 540 minutes travel to Tenterfield Local Court as “professional costs”. In my view, is also quite unreasonable. Counsel’s fees totalled $11,660.
This included a claim for $1,100 for “return travel” and $1,980 for “preparation”.
The memo of the solicitor refers to an: “Invoice July-August $5,280”, from the barrister with no particulars. In the context of an award of costs in this jurisdiction that claim is not just and reasonable.
A “brief fee” at commercial rates, in addition to a preparation fee, is not only ‘unreasonable’, it seems inconsistent with what a ‘brief fee’ generally means, when it is greatly in excess of a refresher rate, if a refresher rate can be divined given the lack of particulars for the “Invoice – July-August”.
71 I point out that there is a further claim for disbursements for travel and the like in the sum of $4,768.40 for both legal representatives.
This includes entries such as “Counsel travel August 2007 $554.86 … Solicitor travel August 2007 $554.86 … Travel counsel November 2007 $171.14 … Travel solicitor November 2007 $171.14”.
One assumes this includes airfares, given the claim for the time it took to travel. In handwriting there are further figures: “Airfares $995.18 …”. I assume this figure is for proceedings of January 2008.
When the matter was listed for judgment on 22 January 2008 the solicitor claimed professional fees in the sum of $3,036 and counsel claimed the sum of $6,380, this included reading the transcript in preparation $1,980, “Return travel’ – in the sum of $1,100, a “brief on hearing” fee for 22 January 2008 (in the sum of $3,300) for what was obviously the taking of the judgment and some submissions in relation to the issue of penalty and costs.
This claim is extraordinary.
It is grossly excessive as costs that are just and reasonable.
This claim is neither just nor reasonable given other claims for earlier proceedings.
This figure includes the same (emphasis added) preparation fee as for the hearing.
This is, in my view, an unreasonable claim.
It was the same barrister at all times according to the transcript. I have a great deal of difficulty understanding why a barrister had to be briefed at all to take the judgment of the Magistrate and make some submissions in relation to penalty and costs, or alternatively be accompanied by a solicitor.
In this matter, a “brief on hearing” fee of $3,300 for a matter in the Local Court, for junior counsel, where junior counsel claims a preparation fee as well is neither ‘just and reasonable’ in an award of costs. A clerk could have instructed.
72 Witnesses expenses were claimed for Lisa Martin who apparently is employed by the local Rural Lands Protection Board and for Dr Doherty including $1,980 for him to travel to Tenterfield by aircraft.
In my view witnesses expenses ought not be allowed.
The claim for the cost of Chartered air travel by one witness is not just and reasonable in all the circumstances.
No explanation was before the Magistrate in any intelligible way, as to why such expensive air travel was required in all the circumstances, notwithstanding the complaint of the defendant’s solicitor, in the context of the particulars supplied in the document provided to the Magistrate. In the context of the terms of s 215(1)(a) and the facts of the case I do not believe a claim for “witnesses expenses” was just and reasonable.
73 Every case has to be decided on its own facts, in the context of the principles, which are laid down by superior courts.
The exercise of a discretion to award costs on the basis of a sum that is “just and reasonable” will require consideration of a range of matters.
Taking all matters into account, I would allow costs to the RSPCA in respect of the Local Court proceedings in the following amounts; solicitor’s fees in preparation for the hearing and attendance at court for the first two days in the sum of $2,512, representing elimination of travel time, and calculating the time rate at $150 an hour, to more closely represent party/party costs.
As for the taking of judgment, given both counsel and solicitor perused the transcript the work of the solicitor in my view was unnecessary. I will allow one hour for preparation of the solicitor for the taking of judgment proceedings.
Thus I will allow a further $150 for that. I will allow for counsel’s fees involving three attendances at court and preparation, $4,600 ($1,200 per day and $1,000 in preparation) plus GST.
I will not allow travel time, I will allow transcript costs, costs of air travel and accommodation and car hire.
As earlier indicated I query the need for solicitor and counsel to appear at Court, particularly on the last day, when judgment was handed down and sentencing and costs issues resolved. Thus I will effectively halve the disbursements claimed for the proceedings in January 2008.
74 I confirm the s 30A POCAA expenses of $5,388.76
Thus the total amount I would award as costs which are “just and reasonable” in this particular matter are as follows: $2,662 for solicitors’ costs (plus GST), $4,600 for counsel’s fees (plus GST) and disbursements in the sum of $4,553. This is a total of $12,681 (including GST) (subject to confirmation).
ORDERS:
1. Appeal against finding of guilt re s 5(3) POCAA offence upheld. Charge dismissed, consequent orders quashed.
2. Appeals against finding of guilt re s 8(1) matters (x 17) dismissed.
I confirm convictions, quash the fines and moiety order but confirm the s 9 bond(s) ordered for these matters.
I vary the s 31 order in terms to be advised.
I award costs for the Local Court proceedings in the sum of $12,681(subject to confirmation).
Cost of the appeal to be decided.
http://www.lawlink.nsw.gov.au/dcjudgments/2008nswdc.nsf/00000000000000000000000000000000/aaa80f7b4a2d292dca2575a00007241d?opendocument