Baker v Smith (No 3) [2019] QDC 267

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Smith (No 3) [2019] QDC 267 PARTIES: MICHAEL VINCENT BAKER (appellant) v BRIAN ARTHUR CONWAY SMITH (respondent) FILE NO: 4984 of 2016 DIVISION: Crime PROCEEDING: Costs Hearing ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 20 December 2019 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Porter QC DCJ ORDER: 1. The appellant pay the respondent’s costs of the second appeal in the amount of $20,000 within 6 months of the date of this order; and 2. Order 9 made on 4 December 2019 in Amended Notice of Appeal filed 30 May 2019 be corrected so that it reads: The appellant pay the respondent’s costs of the conviction appeal in the amount of $186,620.60 within 6 months of the date of this order. CATCHWORDS: CRIMINAL LAW – PROCEDURE – COSTS – where s. 232A Justices Act provides that costs of a conviction appeal may be awarded where it is just to do so having regard to the special difficulty, complexity or importance of the appeal – whether the appeal relating to the costs of the trial, sentence and other orders was of special difficulty, complexity or importance. CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – OTHER MATTERS – where costs were awarded against the appellant on the basis of calculations contained in an affidavit of the respondent’s solicitor – where errors in the calculation of the solicitor’s fees were detected after judgment was ordered – whether this Court hearing a matter on appeal under s. 222 Justices Act 1886 (Qld) has power to correct the order. -- 1 of 7 -- 2 Justices Act 1886 (Qld), s 222, s 226, s 232A Uniform Civil Procedure Rules 1999 (Qld), r 388 District Court of Queensland Act 1967 (Qld), s 113 Conde v Gilfoyle [2010] QCA 173 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Gallagher v Boylan [2013] 1 Qd R 204 L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590 R v Allen [1994] 1 Qd R 526 R v Pettigrew [1997] 1 Qd R 601 R v Stanley [2015] 1 Qd R 118 COUNSEL: G Allan and S Trewavas for the appellant J Hunter QC and P Hastie QC for the respondent SOLICITORS: Marland Law for the appellant Department of Natural Resources and Mines for the respondent [1] On 17 May 2019, I delivered judgment in Mr Baker’s appeal to this Court filed 19 December 2016 from his conviction in the Magistrates Court of 46 offences arising out of the clearing of native vegetation on a rural property called Chess Park, near Eidsvold in the North Burnett region (the conviction appeal). On 4 December 2019, I handed down judgment in Baker v Smith (No 2) [2019] QDC 242 (the second appeal). That judgment dealt with the remaining appeals relating to the trial, including costs of the trial, sentence and some other matters. It also dealt with costs of the conviction appeal. [2] The third part of the trilogy will be mercifully brief. Only two matters are to be resolved: costs of the second appeal and an error which has been identified on the evidence filed on costs of the conviction appeal. Costs of the second appeal [3] I refer to paragraphs [438] to [467] of the second appeal judgment and incorporate those observations into this judgment. [4] The respondent contends and the appellant concedes (properly in my view) that the second appeal was of special difficulty, complexity or importance. While it was a less difficult and complex appeal than the conviction appeal, that is not the correct comparator. Compared to the ordinary run of appeals under s. 222 Justices Act 1886 (Qld), this appeal met the statutory pre-conditions in s. 232A Justices Act. At least the following factors sustain that conclusion: the complexity of the re-sentencing task (which required detailed engagement with the complex facts of the case) and the importance and difficulty of the question as to the proper construction of the word “conviction” in s. 157 Justices Act. [5] In determining what order for costs is just under s. 226 and what amount of costs is just under s. 232A Justices Act, the considerations in paragraphs [474] and [475] of the second appeal judgment are somewhat less compelling. -- 2 of 7 -- 3 [6] As to the matter in paragraph [474] of the second appeal judgment, while this was a very difficult and complex matter compared to the ordinary run of matters, it was not of the most difficult kind. It was materially less so than the conviction appeal (though like the conviction appeal, much of the case was not traversed in oral argument). [7] As to the matter in paragraph [475] of the second appeal judgment, much of the difficulty in this case arose from the need to re-sentence Mr Baker and thus have regard again to the facts of the case. Similarly, the argument about power to award costs was an important one, and arose because of the manner in which costs were dealt with below by her Honour (no criticism is intended). In those circumstances, I give greater weight to the principles identified in cases discussing the relevance of the scale (see paragraphs [470] to [472] of the second appeal judgment) than I did in the conviction appeal. However, it remains the case that I must exercise the discretion to award the amount which I consider just having regard to the special difficulty, complexity and importance of the appeal. [8] The respondent initially claimed costs in the amount of $15,612.50. This comprised, in effect, counsel’s fees of three days preparation and for the two days of hearing (at $3,000 per day) along with the fees of the respondent’s solicitor, Ms Silvester. The sum sought for counsel is $15,000 compared to the fees of counsel totalling $23,149.50. The respondent initially sought the modest sum of $612.50 for Ms Silvester’s work, charged at the remarkably modest rate of $35 per hour.1 [9] As discussed below at paragraphs [19] to [25], after I delivered the second appeal judgment (and after receiving the submissions referred to above) the respondent realised that this remarkably modest sum was calculated erroneously. The amount sought by the respondent for solicitor’s fees once the calculation errors were addressed was $9,230.55 (73.75 hours at $125.16 per hour2). The total amount ultimately claimed by the respondent on the basis of this updated calculation is $24,230.55. [10] I note however that Ms Mant’s affidavit, upon which this figure was calculated, also appears to me to be in error in respect of the number of hours of work performed by Ms Silvester. A review of the time entries exhibited to Ms Mant’s affidavit reveals that Ms Silvester actually performed 56.25 hours of work in respect of the second appeal. The correct amount of solicitor’s fees for the second appeal ought therefore to be $7,040.25, making the total amount of the respondent’s costs $22,040.25. [11] The appellant contended that the total costs initially claimed of $15,612.50 (claimed on the basis of the erroneous calculation of solicitor’s fees) is excessive because it is seven times the scale costs of $2,100, particularly given the modest success of the appellant in the second appeal, set out in paragraph 6 of the appellant’s submissions dated 10 December 2019. The appellant’s submission presumably applies a fortiori in respect of the amount ultimately claimed by the respondent. I disagree in respect of both figures. [12] First, much of the success of the appellant on the second appeal would have followed even if there had been no substantive appeal. That is true of the success on the Forestry Act compensation and trial costs. The appellant did not succeed on the 1 Respondent’s outline of submissions on costs of the costs and sentence appeal, paragraph 4. 2 Affidavit of Mant sworn 12 December 2019, paragraph 31(b). -- 3 of 7 -- 4 appeal points it brought in that regard. No appeal was necessary to achieve that success. [13] Second, it is to be noted that there was a re-sentencing rather than an appeal on the grounds raised by the appellant and that occurred because of the modest success on the conviction appeal. On the other hand, the appellant fought the case on the re- sentencing with vigour and made no submission remotely in the vicinity of the fine imposed during submissions. In that sense, the appellant comprehensively lost the sentence argument. [14] Third, the appellant submits that costs which are seven times the scale costs as calculated by the appellant’s solicitor do not bear any reasonable proportion to the scale. I do not find that submission, of itself, to be persuasive. The question to be determined is what amount of costs is just. The discretion is not confined by the scale. The scale is a relevant consideration in exercising the discretion. However, to simply compare a sum sought for costs with a multiple of the scale does not much assist, particularly where the case is one of notably special difficulty, if not the most difficult one might encounter. There is another difficulty with the arithmetic comparison of the sum sought with the scale. This appeal involved three quite distinct appeals: trial costs, sentence and orders under s. 599 Sustainable Planning Act 2009 (Qld). Any one of those would have comprised a substantial appeal in their own right (though the s. 599 appeal much less so). The inclusion of them in a single notice of appeal leads to a much more modest scale costs outcome than if they were pursued in separate notices of appeal. The scale costs tend to arbitrary results in more complex cases. That is not to say that such a comparison might not be appropriate in some cases. [15] No issue was raised as to the financial capacity of the appellant to pay costs. [16] In my view, an amount of $20,000 is a just amount for costs having regard to the special difficulty, complexity or importance of the appeal and bearing in mind the other matters set out above. Error in the evidence on the costs of the conviction appeal [17] Paragraph [484] of the second appeal judgment summarised the evidence on Ms Silvester’s costs for work done by her in the conviction appeal as follows: [484] Ms Silvester also claims an amount described as solicitors’ fees. She swears she spent 566.3 hours working as solicitor on the appeals, including the seven days of hearing. This equates to 16 working weeks calculated as seven hours per day, five days per week. Frankly, given the nature of the appeal, this seems modest. Also modest is her nominal charge out rates of some $35 per hour. External solicitors would have charged hourly rates perhaps ten times that rate or more. Certainly, a solicitor in private practice with the experience necessary to prepare and instruct on these appeals competently would have done so. At Ms Silvester’s nominal rate, her time is costed at $175,720.50. [18] The figures in that paragraph accurately stated the evidence. However, the total costs for Ms Silvester is overstated by a factor of ten based on the evidence in her affidavit. This was not noticed until after delivery of the second appeal judgment, though once noticed it is an obvious calculation error. -- 4 of 7 -- 5 [19] The error was noticed by the respondent, who then reviewed other particulars of Ms Silvester’s calculation of her costs in her affidavit.3 That review has resulted in a significant correction to a number of the figures in the affidavit. An affidavit of Ms Mant for the respondent deposes to various errors in the calculation of Ms Silvester’s costs. [20] First, certain errors relate to Ms Silvester’s charge out rates. The very modest charge out rates identified in Ms Silvester’s previous affidavit are a result of the deponent mistaking the “per unit” rate in the department’s practice administration software with the “per hour” rate. Ms Silvester’s time was billed in units of six minutes. Accordingly, the actual rate at which Ms Silvester’s work was charged out was ten times larger than that which was identified.4 This mistake accounts for the respondent’s claim of $175,720.50 for Ms Silvester’s costs (a total ten times larger than the hourly rates identified would produce). [21] However, Ms Mant also deposes that the charge out rates reflected in Ms Silvester’s affidavit (regardless of whether adjustment is made for the “per unit” versus “per hour” mistake) is in error. The correct claim for costs is the actual costs incurred by the respondent, being Ms Silvester’s salary and “on costs” being superannuation contribution, telephone and computing facilities, workers’ compensation and annual and long service leave levy expenses.5 This amount is $125.16 per hour and it is this amount that should have informed the calculation of the respondent’s costs of the appeal against conviction. [22] Second, the number of hours Ms Silvester performed on the conviction appeal was also mistakenly calculated. Ms Silvester performed 3997.8 units of work during the period to which her affidavit referred. This figure was mistakenly divided by six to calculate the number of hours performed. This resulted in 566.3 hours of work being attributed to Ms Silvester. In fact, the figure should have been divided by ten (given there are ten units in an hour) and resulted in 339.78 hours of work.6 [23] According to the affidavit of Ms Mant, Ms Silvester’s affidavit (despite being affirmed on 17 June 2019) deposed only to the solicitor’s costs charged between 26 June 2017 and 28 August 2018.7 Ms Mant deposes that the date of the final piece of work clearly identifiable as being related to the conviction appeal occurred on 11 September 2018.8 Ms Mant deposes to 493.46 hours being charged by Ms Silvester on dates up to and including 11 September 2018 as being in respect of the conviction appeal.9 [24] The hours of work which followed this date were ascribed by Ms Mant to the appeals against sentence, costs and other orders, and are used in calculating the revised costs claim in respect of those appeals discussed above at paragraphs [9] and [10]. 3 Affidavit of Silvester affirmed 17 June 2019, Court Document 35. 4 Affidavit of Mant sworn 12 December 2019, paragraph 10. 5 Ibid, paragraphs 25 to 26. 6 Ibid, paragraph 9. 7 Ibid, paragraphs 19 to 22. 8 Ibid, paragraph 30. 9 Ibid, paragraph 31. -- 5 of 7 -- 6 [25] Therefore, the correct position is as follows10: 31. On that basis, the correct amount for solicitor fees in relation to: a. the appeals against conviction is $61,761.45 (being 493.46 hours x $125.16) until 11 September 2018; […] [26] The result of this is a very significant reduction in the costs of the respondent for Ms Silvester’s work on the conviction appeal, from $175,720.50 to $61,761.45. [27] At paragraph [492] of the second appeal judgment, I dealt with Ms Silvester’s fees in determining costs of the conviction appeal as follows: [492] I next turn to fees in relation to Ms Silvester’s work. Multiples of scale fees are hardly an adequate or just manner of determining an allowance for her work. Given the modest rate claimed and the efficiency with which she appears to have carried out the work of preparing the appeal, I consider the amount sought could easily be sustained as a just amount on account of her endeavour. However, I will limit those costs to $100,000. [28] It is plain that that decision cannot be maintained in light of the evidence now before the Court. The question is how to deal with that circumstance. [29] In my view, this situation engages the slip rule. That rule is stated in statutory form in r. 388 Uniform Civil Procedure Rules 1999 (Qld) (UCPR). That rule has been recognised as applying in the Court of Appeal to correct judgments given by that Court on appeal.11 In my view, it also applies to correcting a judgment given on appeal in the District Court. The Justices Act does not contain any specific provision which incorporates r. 388 UCPR nor does it deal with the slip rule. However, s. 113 District Court of Queensland Act 1967 (Qld) provides: The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal. [30] That section draws no distinction between civil and criminal proceedings and I can see no reason to infer one. Further, s. 222 appeals are treated as civil appeals. For this reason alone, it seems to me that the power of the Court of Appeal is one which is also available to the District Court. If it were thought that s. 113 calls up specifically the powers of the Court of Appeal in criminal appeals from trials on indictment (which are not analogous in many respects to a s. 222 appeal), authority suggests that the Court of Appeal can apply the slip rule in criminal appeals.12 Certainly, it did not appear that any case had held that it did not apply. The appellant did not contend to the contrary. [31] The area of controversy in slip rule cases frequently arises in respect of whether the particular mistake or error alleged falls within the scope of that rule, or rather is an attempt to appeal the order under the guise of the application of the rule. No party suggests that is the case here. Indeed I accept (as does the appellant) that the errors in the affidavit filed by Ms Silvester were accidental slips and omissions. Further, in 10 Ibid. 11 Gallagher v Boylan [2013] 1 Qd R 204 at [18] to [21]; Conde v Gilfoyle [2010] QCA 173 at [4]. 12 R v Allen [1994] 1 Qd R 526 (power to order a new trial where an appeal was originally dismissed having been brought prior to the handing down of an influential High Court decision); R v Pettigrew [1997] 1 Qd R 601 (power to set aside an interlocutory order refusing leave to appeal where the refusal was based on a factual misapprehension); R v Stanley [2015] 1 Qd R 118 at [57]. -- 6 of 7 -- 7 the circumstances of this particular case, it is accepted by both parties that if the error had been brought to my attention at the time, I would not have awarded costs of $100,000.13 That is undoubtedly true. The only real area of doubt which could arise is whether it can be said with the necessary level of confidence that if I had adverted to the error and was armed with the accurate information before me now, there is a specific order that I would have made. In my view, it can be. Given the reasoning in paragraph [492] above, I am in no doubt that if the much more modest sum now articulated for Ms Silvester’s costs had been before me, I would have ordered that sum to be included in determination of just costs. No party contends to the contrary. [32] The proposed amendment to the orders I made for costs of the conviction appeal is that the professional costs in respect of Ms Silvester’s fees be reduced from $100,000 to $61,761.45. In the unique circumstances of this case, I can conclude that “the proposed amendment is one upon which no real difference of opinion can exist”.14 I will accordingly reduce the overall amount ordered against the appellant by ($100,000 – $61,761.45 =) $38,238.55. This results in a costs order against the appellant in respect of the respondent’s professional fees and disbursements in relation to the conviction appeal of ($224,859.15 – $38,238.55 =) $186,620.60. [33] I therefore order that: 1. The appellant pay the respondent’s costs of the second appeal in the amount of $20,000; and 2. Order 9 made on 4 December 2019 in Amended Notice of Appeal filed 30 May 2019 be corrected so that it reads: The appellant pay the respondent’s costs of the conviction appeal in the amount of $186,620.60 within 6 months of the date of this order. 13 See L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590 at 593: “We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it.” 14 Elyard Corporation Pty. Ltd. v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 per Lockhart J, with whose judgment Black CJ concurred, at 390-1. -- 7 of 7 --