Adelaide City Council v Lepse (No 2) - [2016] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ADELAIDE CITY COUNCIL v LEPSE (No 2)
[2016] SASC 69
Reasons for Ruling of The Honourable Justice Peek
18 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - COSTS
PROCEDURE - COSTS
Reasons for ruling on an application for costs by a respondent in an unsuccessful appeal against orders of a Magistrate.
Upon delivery of judgment dismissing the appeal in Adelaide City Council v Lepse [2016] SASC 66, counsel for the respondent applied for costs totalling $2,606.40.
Discussion of r 238, Supreme Court Civil Supplementary Rules 2014, providing that costs in the ordinary case are generally fixed at $500, and of the discretion of the Court to make different orders in particular cases. Consideration of relevant factors pursuant to s 13, Criminal Law (Sentencing) Act 1988.
The respondent is awarded costs of the appeal, fixed at $1,500.
Supreme Court Civil Supplementary Rules 2014 Rule 238; Criminal Law (Sentencing) Act 1988 s 13, referred to.

ADELAIDE CITY COUNCIL v LEPSE (No 2)
[2016] SASC 69
Decision as to costs on a Magistrates Appeal

PEEK J. On Tuesday 10 May 2016, I heard a Magistrates Appeal brought by Ms Lepse. At the time of reserving judgment that day, I indicated to the parties that I would be delivering judgment on Wednesday 18 May 2016 and that I would expect to hear any submissions concerning any application for costs on that occasion.
On Wednesday 18 May 2016, I delivered judgment in Adelaide City Council v Lepse[1] and dismissed the appeal. The solicitor for the Council then sought an order that the appellant pay the respondent’s costs of the appeal in the amount of $2,606.40. I heard submissions from both parties on the matter and made an order that the appellant pay the respondent’s costs of the appeal in the amount of $1,500.00. I indicated that I would provide reasons for that order to the parties in the near future. Those reasons follow.
[1] [2016] SASC 66.
The nature of the power to order costs in the present circumstances
The power of this Court to award costs is a broad power and remains so in the context of an appeal of the present type. The power includes the options of awarding of costs to be adjudicated or the awarding of a lump sum which in the view of the Court would approximate the amount that would be ordered on an adjudication.
Rule 238 of the Supreme Court Civil Supplementary Rules 2014 confirms that in an appeal of the present kind the matter of costs remains in the discretion of the Court. The Rule provides:
238—Costs in criminal appeals to a single Judge
(1)     This supplementary rule applies to appeals to a single Judge of the Court under section 42 of the Magistrates Court Act 1992 or section 22(2)(c) of the Youth Court Act 1993 against a judgment of a Magistrate in a criminal action (Magistrates criminal appeal).
(2)     Costs in a Magistrates criminal appeal are in the discretion of the Court.
(3)     The general rule is that costs follow the event and in the ordinary case costs fixed at $500 plus the appeal filing fee will be awarded in favour of a successful appellant and costs fixed at $500 will be awarded in favour of a successful respondent.
(4)     The general rule that costs follow the event is subject to the discretion of the Court.
Examples—
1When the appellant succeeds on part of the appeal or one issue on appeal but fails on another.
2When a party is guilty of misconduct in relation to the original or appellate proceeding.
3      When one party adopts an unreasonable position on appeal.
(5)     If either party intends to apply for costs in an amount other than that reflected in paragraph (3), that party is to make an application at the outset of the hearing of the appeal. In that event, the Court may fix a different amount for the purpose of paragraph (3) that will generally apply regardless of which party is successful on the appeal or may make any other order that the Court thinks fit.
Examples—
1An application might be based on the complexity of the appeal requiring especially extensive preparation for the hearing of the appeal.
2An application might be based on the appeal being listed for an especially lengthy hearing.
3An application might be based on the reasonable retention of senior counsel to argue the appeal.
(6)     The Court may, if it thinks fit, dispense with the requirement in paragraph (5) that an application for costs in an amount other than that reflected in paragraph (3) is to be made at the outset of the hearing of the appeal.
It is to be noted that the amount of $500.00 suggested in r 238(3) is an amount that may usually be ordered, but quantum remains in the discretion of the Court.
Consideration of the present case
There may arise many reasons why the figure of $500.00 might be inappropriate in a particular case. It so happens that in the present case, that figure is inappropriate for reasons that mirror two of the examples (and they are only examples) that are given in r 238(4) in the different context of costs not following the event, namely the second and third examples.
The content of the judgment herein[2] plainly demonstrates misconduct by the appellant in relation to the appellate proceeding and also that the appellant adopted an unreasonable position on appeal. In the present case, of course, costs are to follow the event, but those matters demonstrate here that the respondent is entitled to an order awarding it either costs to be adjudicated or a lump sum which in the view of the Court would approximate the amount that would be ordered on an adjudication. Further, pursuant to r 238(6), I see fit in all the circumstances here to dispense with the requirement in r 238(5) that an application for costs in an amount other than that reflected in paragraph (3) is to be made at the outset of the hearing of the appeal.
[2] [2016] SASC 66.
Section 13 of the Criminal Law (Sentencing) Act 1988
Before making an order for costs against the appellant, I must take into account s 13 of the Criminal Law (Sentencing) Act 1988 which provides:
13—Order for payment of pecuniary sum not to be made in certain circumstances
(1)     The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a)    the defendant would be unable to comply with the order; or
(b)compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(2)     Subject to subsection (3), the court is not obliged to inform itself as to the defendant’s means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)     In considering whether the defendant would be able to comply with the order, the court should have regard to—
(a)the fact that the defendant could enter into an arrangement under Part 9 Division 3; and
(b)any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.
I also note that s 3 of that Act provides that “pecuniary sum” includes a fine, costs, and any other amount payable pursuant to an order or direction of a court.
Statements and submissions by the appellant
I note that in the course of submissions on the hearing of the appeal on Tuesday 10 May 2016, the appellant told me that she runs a business and is soon to attend seminars in Melbourne and Queensland. At one point she stated (in relation to the original expiation fee) “it’s a $62 fine, I spend more money than that on lunch”.
In the course of submissions on the question of costs on Wednesday 18 May 2016, the appellant told me that she has no dependants; that she owns a different motor vehicle to that involved in the subject offence; that she has a house and is paying mortgage payments; that she has a taxation debt and some credit card debt that she is paying off; and that her business provides the payments mentioned. She also stated that she has two other expiation fees in the total amount of $800.00, but that she is contesting those matters in Court, and finally that there is the matter of the monetary amounts ordered in the present case in the total amount of $576.00 which will have to be paid.
I had regard to all of the matters referred to in s 13(3). In the circumstances of this case, I am not satisfied that the means of the defendant, so far as they are known to the Court, are such that (a) the defendant would be unable to comply with the order or (b) compliance with the order would unduly prejudice the welfare of any dependants that the defendant might have. In all of the circumstances, it was appropriate that I make an order for costs in favour of the respondent.
In some cases of the present type I would simply make an order that costs be adjudicated, and quite likely on an indemnity basis. However, here I considered that a formal adjudication process would further delay matters and unnecessarily take up further judicial time, too much of which has already been wasted by the appellant’s conduct.
It was for these reasons that I considered that the appropriate course was to fix a lump sum amount somewhat less than that which might be ordered in favour of the respondent on a formal adjudication on a party-party basis and that I ordered that the appellant pay to the respondent its costs of the appeal fixed in the amount of $1,500.00.