Citation: R v Sparos (No 2) [2017] NSWSC 1462
Court: Supreme Court of New South Wales
Date: 27 October 2017
Judge: N Adams J
Background
The accused had previously stood trial alongside three co-accused in a 17-week hearing beginning April 2016. The jury was unable to reach a verdict and was discharged. A retrial was listed for 3 October 2017 with a six-week estimate, privately funded by the accused.
When the retrial came on, it became apparent it could not conclude within the year. The trial date was vacated on 4 October 2017. Junior counsel then withdrew because he might be called as a witness, and senior counsel (briefed from Melbourne) was unavailable until late 2018 and had only accepted the brief on the basis that the same junior would remain.
In the first costs judgment (R v Sparos (No 1) [2017] NSWSC 1410), the Court ordered a stay of proceedings unless and until the DPP paid the accused's reasonable costs thrown away by the vacation. This second judgment determined the quantum of those costs.
Legal Issues
- What was the total amount of reasonable legal costs thrown away by the vacation of the trial date?
- Were the non-refundable cancellation fees charged by senior counsel properly included as costs thrown away?
- Was the preparation time claimed by senior and junior counsel reasonable in the circumstances?
- Were the costs of the stay application itself properly characterised as costs thrown away by the adjournment?
- Were senior counsel's accommodation and airfares (Melbourne to Sydney) recoverable?
- Was senior counsel's daily rate of approximately $8,800 reasonable in the particular circumstances of the case?
Decision
The accused's legal team comprised a paralegal, a solicitor, junior counsel, and senior counsel briefed from Melbourne. The total costs claimed were $391,905.99. The Court approached the assessment by examining each component against the standard of "reasonable costs thrown away," rather than simply accepting the rates and amounts as invoiced.
On senior counsel's cancellation fee of four weeks at $8,800 per day (totalling $176,000 of the $299,200 claimed), the Court accepted in principle that a non-refundable deposit can constitute a cost thrown away where counsel has genuinely set aside time that cannot readily be filled. However, senior counsel had not produced evidence that he was unable to obtain alternative work during the cancellation period, and the Court applied a discount accordingly.
On senior counsel's daily rate, the Court distinguished between the reasonableness of the rate as a matter of senior counsel's entitlement to charge it, and the separate question of what amount the DPP should be required to pay as reasonable costs thrown away. The Court found that a daily rate of nearly $9,000 was not reasonable in the particular circumstances of this retrial, given that experienced junior counsel was also being briefed. The full rate might have been appropriate had senior counsel been appearing without a junior, or as the combined daily rate for both, but not as senior counsel's rate alone.
Having regard to all findings, the Court allowed $126,000 for senior counsel's fees, $20,000 for junior counsel's fees, and $4,950 for the solicitor's costs, arriving at a total of $150,950. The Court noted, consistent with the approach in Issakidis and Carbone (No 2), that it was not required to set out detailed calculations beyond its stated reasoning.
Orders Made
- The proceedings against the accused are stayed unless and until the DPP pays to him or at his direction the sum of $150,950.
- The proceedings are listed for mention on 3 November 2017 at 9:30am.
- The parties have liberty to apply on one day's notice.
Key Takeaways
- A non-refundable cancellation fee paid to counsel can constitute a reasonable cost thrown away where a trial date is vacated, but the party claiming it bears the burden of demonstrating that alternative work could not be obtained for the relevant period.
- The Supreme Court drew a clear distinction between what counsel is entitled to charge and what constitutes a reasonable cost thrown away that the DPP must satisfy before a stayed trial can proceed. These are treated as separate questions.
- Where senior and junior counsel are both briefed, a daily rate charged by senior counsel alone that approximates the combined reasonable rate for both may be discounted when assessing costs thrown away.
- Costs incurred in bringing a stay application can be included as costs thrown away where the application arose directly from the vacating of the trial date.
- In quantifying costs thrown away, the approach from R v Carbone (No 2) and R v Issakidis confirms that courts are not required to publish detailed line-item calculations, provided the reasoning underlying the final figure is apparent from the judgment.
Legislation and Cases Referenced
Cases:
- R v Sparos (No 1) [2017] NSWSC 1410
- R v Carbone (No 2) [2017] NSWSC 346
- R v Michael John Issakidis v R [2015] NSWSC 834