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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SASC 69
Decision Date: 18 May 2016

CaseChat Overview and Summary

The case of Adelaide City Council v Lepse (No 2) involved an appeal by the appellant, Lepse, against a decision of the Magistrates Court. The appellant, who had been found guilty of an offence under the Criminal Law (Sentencing) Act 1988, contested the imposition of costs against her following the unsuccessful appeal. The primary legal issue before the court was whether the appellant should be ordered to pay costs for the appeal proceedings, and if so, what the appropriate amount should be.

The court examined the factors that could justify deviating from the standard costs order of $500 as suggested in r 238(3) of the relevant rules. It noted that the appellant's conduct during the appeal and her unreasonable stance demonstrated grounds for considering a higher award. The court found that the examples provided in r 238(4), which pertain to situations where costs do not follow the event, mirrored the appellant's conduct in this case. The court also considered s 13 of the Criminal Law (Sentencing) Act 1988, which prevents the imposition of pecuniary penalties if it would unduly prejudice the welfare of the defendant's dependants. However, the appellant's submissions about her ability to pay, including her business activities and upcoming expenses, did not sway the court from its decision to award costs.

The court concluded that the appellant's misconduct and unreasonable position warranted a costs order exceeding the standard amount. It exercised its discretion under r 238(6) to forgo the requirement of an upfront application for costs different from the standard amount. The court also took into account the appellant's financial circumstances, ensuring that the order would not unduly prejudice her welfare or that of her dependants. Ultimately, the court ordered the appellant to pay a sum that it deemed appropriate under the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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”.