Brayshaw v Liosatos and Brayshaw v Liosatis [2001] ACTSC 34 (27 April 2001)

Last Updated: 19 March 2002

THOMAS BRAYSHAW v JUDITH LIOSATOS

AND

DAVID BRAYSHAW v JUDITH LIOSATIS

[2001] ACTSC 34 (27 APRIL 2001)

CATCHWORDS

COSTS - informations - dismissed - reasonable costs awarded to appellants save costs of one day lost in Magistrates Court proceedings due to absence of a defence witness - no point of principle.

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

McEwen v Siely (1972) 21 FLR 131

Hamdorf v Riddle (1971) SASR 398

R v Daine; Ex parte Milevich (1988) 91 FLR 33

Spurr v Fishpool (1972) 20 FLR 174

No. SCA57 of 1999

No. SCA58 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 27 April 2001

IN THE SUPREME COURT OF THE )

) No. SCA57 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THOMAS BRAYSHAW

Appellant

AND: JUDITH LIOSATIS

Respondent

IN THE SUPREME COURT OF THE )

) No. SCA58 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID BRAYSHAW

Appellant

AND: JUDITH LIOSATIS

Respondent

ORDER

Judge: Higgins J

Date: 27 April 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appellants be awarded their reasonable costs both in this Court and the Magistrates Court.

2. Those costs, if not agreed, be taxed by the taxing officer of this Court according to the Supreme Court scale in respect of the costs of the appeals and on the Magistrates Court scale (unreduced) in respect of the proceedings below.

3. The taxing officer is to disallow costs for one day lost in the Magistrates Court proceedings.

1. On 19 January 2001, I upheld the appeals in these matters and dismissed the informations laid against the appellants. Costs, both of the appeals and of the proceedings in the Magistrates Court, were reserved.

2. Pursuant to liberty to apply, the appellants, on 30 March 2001, sought to have costs orders made in their favour.

3. Mr Bevan, for the appellants, relied on the successful outcome of the litigation, citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. Mason CJ, in that case, defined the preferred practice concerning the award of costs in summary proceedings as follows:

(542) "In ordinary circumstances it would not be reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs." (emphasis added).

4. His Honour also affirmed that a costs decision should be approached primarily from the perspective of the defendant. It follows that a costs order should not be seen as a punishment of the unsuccessful informant or, conversely, its denial as a reward for taking appropriate action.

5. It is unnecessary in the present case to consider whether a costs order should be made and, if so, in what circumstances, in favour of a successful informant. Mason CJ expressed the view that it is not a reciprocal of the expectation of a successful defendant in such matters. A similar reservation was expressed in McEwen v Siely (1972) 21 FLR 131 by Fox, Blackburn and Connor JJ. (c.f. Hamdorf v Riddle (1971) SASR 398).

6. As to circumstances in which it would be just and reasonable to deprive a successful defendant of the benefit, in whole or part, of a costs order, the following was stated by Mason CJ in Latoudis v Casey (supra):

(544) "If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself of herself, then it would not be just and reasonable to award costs against the prosecutor.

. . . if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs. Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, it would be just and reasonable to make an award for a proportion of the defendant's costs."

7. The fact that it was reasonable and in the public interest for the informant to have instituted the proceedings is not a circumstance which would make it just and reasonable to refuse or reduce a costs order in favour of a successful defendant.

8. Toohey J expressed himself in similar terms (see 562-3), expressly referring to the decision of Miles CJ in this Court in R v Daine; Ex parte Milevich (1988) 91 FLR 33.

9. McHugh J (at 569) in similar terms expressed concurrence with these observations. His Honour added that it was no reason to deprive a successful defendant of costs that the suspicion that the offence had been committed was not dispelled.

10. In this case, Mr Todd, for the respondent, did not dispute those principles. He submitted, however, that the ambiguous concession Mr Bevan had made before her Worship that the ownership of "the cattle" on the property was not in dispute, should lead to no costs order being made in respect of the Magistrates Court proceedings and to a reduced costs order in respect of the proceedings on appeal.

11. The issue as to ownership of "the cattle" was only raised after I had pointed out that, in the statements they made to the informant and in their evidence before her Worship, the appellants had maintained that feral cattle from "the Park" (Namadgi National Park) had mixed with their cattle. It was also apparent that some of the cattle on the property were not suffering from liver fluke. The few seriously affected, who probably had not been drenched at all, were not proved to have been taken into the appellants' possession.

12. The same observation applied to cattle which were malnourished, not merely to the point of losing condition, but to the point of starvation.

13. Had the issue been squarely raised at the outset, Mr Todd contended, the proceedings might have been more quickly disposed of.

14. There was also one day lost as a result of a defence witness being unavailable.

15. Mr Bevan conceded the latter point but submitted that the appeal would have succeeded even without the "ownership" issue. He conceded that the admission as to "ownership" had been ambiguous.

16. The mere fact that a point, ultimately successful, was not taken in the Court below, is not in itself sufficient to deprive a defendant of costs. (see McEwen v Siely (supra) at 132).

17. However, a failure to object to the competency of an appeal has been so regarded

 - see Spurr v Fishpool (1972) 20 FLR 174.

18. Mr Bevan further submitted that the "ownership" issue was, in any event, not so clear cut that its early ventilation would have avoided the need for an appeal.

19. It does seem to me that there is some force in Mr Bevan's submissions. Even had "ownership" not been in issue, it was apparent that the failure to provide adequate feed and the liver fluke drenching issue should, on the view I took of the evidence, credibility not having been an issue, have been decided favourably to the appellants.

20. Thus it seems to me that, save for the lost day in the Magistrates Court, the appellants should have their reasonable costs both in this Court and in the Court below. I order accordingly and direct those costs, if not agreed, be taxed by the taxing officer of this Court according to the Supreme Court scale in respect of the costs of the appeals and on the Magistrates Court scale (unreduced) in respect of the proceedings below. The taxing officer is directed to disallow costs for one day lost in the Magistrates Court proceedings by reason of the absence of a defence witness.

I certify that the preceding Twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 27 April 2001

Counsel for the Appellants: Mr P Bevan

Solicitor for the Appellants: Baker Deane & Nutt

Counsel for the Respondent: Mr C Todd

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 30 March 2001

Date of judgment: 27 April 2001