New South Wales Supreme Court CITATION : Commonwealth Director of Public Prosecutions v Fyngaze Pty Limited [2001] NSWSC 391 revised - 15/05/2001 FILE NUMBER(S) : SC 11366/98 HEARING DATE(S) : 8 May 2001 JUDGMENT DATE : 8 May 2001 PARTIES : Commonwealth Department of Public Prosectutions v Fyngaze Pty Limited JUDGMENT OF : Sully J at 1 COUNSEL : D. Fagan SC/P. Renehan - C.D.P.P J. Bishop - Fyngaze Pty Ltd SOLICITORS : Commonwealth DPP Paclaw Solicitors - Fyngaze Pty Ltd DECISION : Orders as sought in pars. 1(b), (c),(d), (e), (f), (g) and pars 2(a) and (b) of the notice of motion filed by leave in this Court on 8 May 2000. I will not make for the time being the variation sought in par. 1(a) of that notice of motion 7 SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SULLY J Tuesday 8 May 2001 11366/98 - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v FYNGAZE PTY LIMITED JUDGMENT 1 HIS HONOUR: On 18 June next there is fixed to commence in the Court the trial of William John Walters. It is not practicable to summarise in one or two sentences the substance of the trial, which is, to paraphrase, a complex, organised fraud trial. 2 The substance of the Crown case is that Mr Walters, with dishonest intent, improperly and effectively asset-stripped a succession of companies. 3 In connection with the practical conduct of the trial, applications have been made on behalf of those who will be representing Mr Walters at the trial for the making by the Court of orders providing for the payment of their proper professional fees and other costs out of funds available: to a very limited and wholly inadequate extent, out of the property of Mr Walters himself; and available in a much more significant way out of the property of a company called Fyngaze Pty Limited, which functions as trustee for the Walters Family Trust. 4 Greg James J of this Court, on 9 November, made certain orders in connection with such provision for costs and fees. I myself made further orders on 18 April last. Before the Court this morning is a notice of motion seeking, put simply, variations of my orders, so as to increase in the ways suggested in the notice of motion itself the amounts effectively certified by the orders made earlier on 19 April last. 5 The Crown has opposed the making of the variations sought in the notice of motion. There have been two basic matters troubling the Crown in connection not only with the present notice of motion, but in connection also with the proceedings that were before me on 19 April last. 6 The first of those Crown concerns, which was raised on the prior occasion and which requires attention today, is a concern that if the available funds are exhausted before the conclusion of the forthcoming trial, a situation might result in which those representing Mr Walters would feel themselves unable to continue to represent him effectively without fee, so far as counsel would be concerned, and without proper reimbursement for professional costs and disbursements, so far as the solicitor would be concerned. I agree that that is a concern of substance; but it has been dealt with this morning by the appearance before the Court of Mr Bishop of counsel, who is briefed to appear at the trial, and who has given the Court an undertaking, which the Court both accepts and respects, that so far as he is concerned, he will execute the brief in full, even should the situation arise where available funds are exhausted before the conclusion of the trial. 7 Mr Adamson, who is the instructing solicitor retained by Mr Walters, has given the Court a similar undertaking, which also the Court both accepts and respects. 8 I will note simply that that particular apprehension on the part of the Crown was, in my view, one that it was entirely appropriate to raise with the Court in the way that has been done; but, as I have said, the matter, having been raised, has been resolved to the satisfaction of the Court in the way to which I referred a moment ago. 9 The second matter of concern to the Crown is that the variations now sought, if made, will constitute by that very fact a precedent apt to work mischief in future cases where applications of the present kind are made for the provision out of limited available funds of the costs and professional representation of an accused person. 10 Reference has been made to submissions put, may I say clearly and helpfully, on behalf of the Crown to a comparatively recent case of Campillo in which, as I understand the fact, rates were set which have been regarded thereafter, at least by the Crown, as a reasonably continuing benchmark for rates of professional emolument. 11 I am not familiar with the detail of the Campillo matter, but I am told by learned counsel for the Crown, and of course accept, that it was not a case similar in its nature and scope to the proposed case against Mr Walters. 12 The case against Mr Walters, as I said at the beginning of this judgment, is a complicated fraud matter. Its potential importance as a precedent in that particular context is demonstrated by a letter written on 12 February 1999 by the Commonwealth Director of Public Prosecutions to the Chief Justice of this Court. Put very simply, that letter sought the concurrence of the Chief Justice to the presentment of Mr Walters before this Court, rather than before the District Court, for trial. 13 The basis of that application was in part the proposition that the matter was complex, and in part the proposition that it was expected to raise a number of important, and perhaps even novel, questions of law which it would be desirable to have dealt with initially in this Court, and y a Judge of this Court at trial. 14 His Honour the Chief Justice subsequently accepted the proposition that the trial was one proper to be conducted upon indictment before a Judge of this Court. It seems to me that those considerations enable this Court, if so disposed, to intervene in the way now proposed, and so to intervene without establishing a precedent such as to cause forensic mischief in future cases. 15 As will be clear presently, I do intend to make at least some of the orders sought in the notice of motion now before the Court. I wish, however, to make as clear as words can do that the approach that I propose to take in the present particular matter is an approach that is very much particular to the individual matter. I do not intend in any way whatsoever to establish by any orders that I may make anything in the nature of a fixed point of reference to which recourse can properly be had in other and different matters, and in connection with the always troublesome question of the rates of professional remuneration proper to be allowed to counsel and solicitor in connection with any defended criminal trial. 16 As I have said, I propose to make some at least of the orders sought in the notice of motion. The reason why I propose to do it is that I think that a trial of the complexity of the one that I have described cannot be regarded sensibly as anything other than a trial which requires a great deal of careful professional preparation for presentation before the Court. The preparation, and even more so the appropriate analysis, of a large volume of documentary material is, as I understand the relevant facts of the present matter, unavoidable. It is essential that it be done, and done properly, in advance of the commencement of the trial, for the obvious reason that it is desirable to minimise the time actually occupied at the trial proper with the jury. 17 I acknowledge, as I think I should do, what I see as a practical difficulty in any request to a Judge of this Court to act de facto as a costs assessing officer. It is put by the Crown, and I think correctly on a strict view, that the particular figures for which the authority of the Court is now sought are not supported by what I might call independent evidence which would be appropriate to fill the obvious gaps in the Court's own knowledge and experience in the area of the setting of appropriate rates for professional remuneration. 18 I had considered whether it would not be a better way of proceeding to stand over the motion part-heard in order that some such affidavit could be obtained from somebody experienced in the area of costs assessment. All other things being equal, that is indeed what I would have preferred to do. As so often happens, however, all other things are not equal, for the reason that time is running out for the preparation of the case for trial, and there is an obvious interest, both from the point of view of the public interest and from the point of view of Mr Walters' own private interest, to have the trial completed within the time allotted for that purpose, and with the maximum efficiency. 19 Those considerations dispose me to take what I acknowledge is not an ideal approach, but is, as I think might fairly be said, a practical and a fair approach to the present matter. 20 I make orders as sought in par 1(b), (c), (d), (e), (f), (g) and par 2(a) and (b) of the notice of motion filed by leave in Court this morning. I will not make, for the time being, the variation sought in par 1(a) of that notice of motion. I think that in the circumstances as I have described them, the more sensible course is simply to wait and see how the orders as now made work out in practice. If that experience suggests that it would be fair to make the further variation sought in par 1(a), then it is a simple enough matter for the Court to be moved on notice for that order. ********** Last Modified: 05/16/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.