Citation: R v Alex [2023] NSWSC 1570
Court: Supreme Court of New South Wales
Date: 14 December 2023
Judge: Fagan J
Background
The accused faced two conspiracy charges alongside six co-accused in a trial listed to commence on 12 February 2024, with an estimated duration of six months. An earlier trial date, set for 3 April 2023, had been vacated by court order on 3 March 2023 after the Crown served substantial additional evidence in February 2023, making it impossible for any party to be ready in time. The Crown accepted that the vacation of the April 2023 fixture was the result of its own fault.
The accused was privately funded and his counsel had been retained under fee agreements that included cancellation fee provisions. Senior counsel's agreement specified a minimum cancellation fee equivalent to four weeks' fees if the trial date was vacated for any reason. Following the vacation, senior counsel issued a memorandum for a cancellation fee of $440,000 (inclusive of GST), and junior counsel issued a memorandum for $110,000 (inclusive of GST), totalling $550,000.
The accused filed a notice of motion in December 2023 seeking either a temporary stay of the February 2024 trial pending Crown payment of those costs, or alternatively an order for costs thrown away. The motion also raised a second, discrete claim for costs thrown away in respect of nine days of senior counsel's reading in February 2023, which was said to have been rendered valueless by replacement material served by the Crown in early March 2023.
Legal Issues
- Whether the Court should stay the trial pending payment by the Crown of counsel's cancellation fees totalling $550,000, on the basis that proceeding without reimbursement would cause fundamental unfairness to the accused.
- Whether the cancellation fees were "costs thrown away" in the relevant sense, specifically whether they were additional to outlays that would in any event have been properly incurred in defending the prosecution.
- Whether the quantum and terms of the cancellation fee obligations had been reasonably incurred.
- Whether costs thrown away arose from a separate, discrete act of Crown fault in serving material that senior counsel had already read, and then replacing it.
Decision
Fagan J confirmed the court's jurisdiction to stay a trial pending payment of costs thrown away by the Crown, but emphasised that such an order is only available where Crown fault of a relatively serious kind has caused costs that are genuinely wasted and unproductive, and where proceeding without reimbursement would be fundamentally unfair to the accused. The judge noted the trial had been adjourned to February 2024, more than six weeks after the vacation order was made in early March 2023, and that counsel had received approximately six weeks' notice of the adjournment.
On the cancellation fees, the court found that the accused had not established the necessary unfairness. The six weeks' notice meant counsel had substantial time available to redirect their efforts to pre-trial preparation in the same matter, rather than simply losing income from the period set aside for trial. The court noted that the cancellation fee provisions in both fee agreements were triggered by vacation of the trial date for any reason, without distinguishing between circumstances where counsel suffered genuine financial loss and those where they could deploy the reserved time productively on the same case. The fee memoranda and supporting affidavit material did not demonstrate what work, if any, counsel had actually undertaken during the notice period, nor whether their time was in fact wasted rather than usefully applied. On that evidentiary basis, the court was not satisfied that the cancellation fees amounted to wasted and unproductive expenditure that made it unfair for the Crown to proceed to trial.
On the second claim, concerning nine days of senior counsel's reading that was said to have been rendered redundant by replacement Crown material, the court found the evidentiary foundation wholly inadequate. Neither the original material reviewed in February 2023 nor the replacement material served in March 2023 had been tendered. Without access to those documents, the court could not assess whether the Crown's conduct went beyond the ordinary evolution of a complex documentary prosecution, and could not make findings of fault on the basis of counsel's submissions alone.
The notice of motion was dismissed in its entirety.
Orders Made
- George Alex's notice of motion filed 4 December 2023 is dismissed.
Key Takeaways
- A court will only stay a criminal trial pending Crown payment of costs thrown away where Crown fault of a relatively serious kind has caused costs that are genuinely wasted and unproductive, and where proceeding without reimbursement would be fundamentally unfair to the accused.
- Cancellation fees in counsel's retainer agreements do not automatically constitute "costs thrown away" in the legal sense. The accused must demonstrate that the fees represent additional, wasted expenditure, over and above what would have been properly incurred in the defence in any event.
- Where counsel receives substantial notice of a trial vacation and has significant pre-trial work to occupy that period in the same matter, the court may decline to find that cancellation fees represent genuine financial loss rather than a redeployment of reserved time.
- Evidentiary sufficiency matters: the Supreme Court refused to find Crown fault in respect of allegedly superseded reading material because neither the original nor the replacement documents were placed before the court. Submissions from counsel, without the underlying documents, were insufficient to ground findings of fact.
- The two-limb test drawn from R v Fisher, R v Curtis, and Lee v Attorney-General for NSW continues to govern these applications: the accused must establish both that costs were genuinely thrown away and that those costs were reasonably incurred, including as to the terms of the retainer and the quantum charged.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Mosely (1992) 28 NSWLR 735
- R v Fisher [2003] NSWCCA 41
- Petroulias v R [2007] NSWCCA 154
- R v Selim [2007] NSWSC 154
- R v Curtis [2014] NSWSC 1582
- R v Michael John Issakidis [2015] NSWCCA 834
- Lee v Attorney-General for NSW [2017] NSWCCA 27
- R v Alex [2023] NSWSC 180
- R v Carbone (No 2) [2017] NSWSC 346
- Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 426
- Wilkie v Gordian Runoff [2005] NSWSC 873
- The Queen v Martinello [2005] ACTSC 109