ATKINS v Police - [2021] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
ATKINS v POLICE
[2021] SASC 19
Judgment of the Honourable Justice Parker
1 March 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - COSTS - POWER TO AWARD
TRAFFIC LAW - OFFENCES - PROCEDURE - COSTS
This is an appeal against the quantum of the costs awarded to the appellant following his acquittal of a charge under the Road Traffic Act 1961 (SA) of failing to comply with a red traffic arrow. The Magistrate awarded the appellant costs in the sum of $808.50 based on items 1, 2, 3 and 8 in the Magistrates Court Criminal Scale of Costs where a party is represented by a non-legally qualified person.
In summary, the grounds of appeal advanced by the appellant are that: (1) he should have been awarded costs based upon the higher rate applicable to solicitors; or (2) in the alternative, he should be entitled to costs of $8,778 based upon his loss of income for the time he spent on the matter.
Held, per Parker J:
1. The Magistrate did not err in the exercise of his discretion as to the award of costs.
2. The judgment under appeal is varied only to correct the arithmetical error in the Magistrate’s calculation of the amount of costs payable from, $808.50 to $1,023.
Criminal Procedure Act 1921 (SA) s 189; Magistrates Court Rules 1992 (Criminal) (SA) r 51.03; Road Traffic (Miscellaneous) Regulations 2014 (SA); Road Traffic Act 1961 (SA)) (SA), referred to.
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Konieczka v Police [2006] SASC 288, applied.
Kelly v Noumenon Pty Ltd (1988) 47 SASR 182; London Scottish Benefit Society v Chorley (1884) 13 QBD 872; Willing v Hollobone (1972) 3 SASR 532; Woolmer v Police [2020] SASC 184, discussed.
Curnow v Police (2008) 100 SASR 290; House v The King (1936) 55 CLR 499; Police v Leonard (1995) 64 SASR 390, considered.

ATKINS v POLICE
[2021] SASC 19

Magistrates Appeal: Criminal

PARKER J: This is an appeal against the quantum of the costs awarded to the appellant following his acquittal of a charge under the Road Traffic Act 1961 (SA) of failing to comply with a red traffic arrow. The Magistrate awarded the appellant costs in the sum of $808.50 based on items 1, 2, 3 and 8 in the Magistrates Court Criminal Scale of Costs (the Scale) as it applies where a party is represented by a non-legally qualified person. The appellant contends that he should have been awarded costs based upon the higher rate applicable to solicitors. Alternatively, he contends that he was entitled to costs of $8,778 based upon his loss of income for the time he spent on the matter.
For the following reasons, I vary the judgment under appeal to correct an arithmetical error…

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: [2021] SASC 19
Decision Date: 1 March 2021

CaseChat Overview and Summary

In Atkins v Police, the appellant appealed against the decision of a Magistrate in the Magistrates Court of South Australia who had awarded him costs after finding that he was not guilty of an offence under the Road Traffic Act. The appellant argued that he should have been awarded costs based on the income he could have earned in his business and at the higher rate applicable to solicitors. The appeal was heard by Parker J in the Supreme Court of South Australia. The primary issue before the court was whether the Magistrate erred in the exercise of his discretion as to the award of costs to the appellant. The court considered whether the appellant was entitled to be compensated for the time spent out of court in preparing for litigation and whether the costs awarded should have been calculated at the higher rate applicable to solicitors. The court held that the Magistrate did not err in the exercise of his discretion as to the award of costs. The court noted that the principle that parties are not compensated for the time spent out of court in preparing for litigation was a long-standing one. The court also held that the costs payable to a successful self-represented party are limited to disbursements and out-of-pocket expenses. The court found that the Magistrate's decision was not affected by a process error or did it give rise to an outcome error, except for a minor arithmetical error. The court varied the judgment under appeal to correct the arithmetical error in the Magistrate's calculation of the amount of costs payable from $808.50 to $1,023.

The court's decision was based on the principle that costs are awarded by way of indemnity for professional legal costs actually incurred in the conduct of litigation, and not as compensation for lost earnings or as a reward for a litigant's success. The court held that the successful party will usually be compensated for the amount expended on legal fees on a party/party basis, which will usually be significantly less than the costs actually incurred. The court also held that a successful self-represented party may be compensated for time spent in presenting their case in Court on the same basis as a witness. The court found that the Magistrate's decision to award costs to the appellant was not affected by any error, except for the minor arithmetical error, and was in accordance with the principles governing the award of costs in South Australia. The court varied the judgment under appeal to correct the arithmetical error and affirmed the Magistrate's decision to award costs to the appellant.

Orders

Orders of the court

Held, per Parker J:

1. The Magistrate did not err in the exercise of his discretion as to the award of costs.

2. The judgment under appeal is varied only to correct the arithmetical error in the Magistrate’s calculation of the amount of costs payable from, $808.50 to $1,023.

Background

Background to the litigation

I reject the contention by the appellant that he should have been awarded costs based on the income that he could he have earned in his business. I also reject his contention that he should have been awarded costs based at the higher rate applicable to solicitors. Background The appellant was charged with being the owner of a vehicle that on 14 May 2019 was involved in a failure to comply with a red traffic arrow. The matter went to trial on 27 August 2020. The appellant represented himself. The prosecution relied upon a series of evidentiary certificates as statutory aids to proof. After reserving his decision, the Magistrate found that a certificate tendered by the prosecution which purported to provide evidence of compliance with the Road Traffic Act and the Road Traffic (Miscellaneous) Regulations 2014 (SA) had referred to the testing of the red-light camera in a period of 28 days prior to 30 April 2020. However, as previously noted, the alleged offence had occurred on 14 May 2019. After considering a number of decisions of this Court, the Magistrate determined not to call the matter back on so as to draw the attention of the parties to the obvious error in the evidentiary certificate. As the prosecution had not proved that the red light camera had been tested in accordance with the statutory requirements, the Magistrate excluded the evidence comprising the photographs taken by the red light camera. Thus, there was no evidence that the offence had been committed and the appellant was acquitted. For completeness, I note that the Magistrate did not refer to my judgment in Woolmer v Police,[1] published on 2 October 2020. In that case I found that an evidentiary certificate which had purported to show that a photographic detection device had been tested in accordance with the statutory requirements could not be relied upon as the oral evidence given by the person who had tested the device established that it had not been tested in accordance with those requirements. While the Magistrate’s reasons were published after the delivery of my judgment in Woolmer, the trial had been conducted some five weeks before the publication of Woolmer. Most importantly, contrary to the position at the Woolmer trial, in the present case there was no challenge, or no effective challenge, to the reliance placed by the prosecution on the evidentiary certificate. Nevertheless, the Magistrate found that the certificate could not be relied upon for reasons quite different to those that I had identified in Woolmer. Those reasons had not been identified by the appellant and were confined to this case. [1] [2020] SASC 184.The ruling on costs The Magistrate held that the appellant was entitled to costs as he had succeeded in his action. Nothing he put to the Court amounted to any kind of meritorious defence and nor was there a valid objection to any of the evidence. The appellant had only succeeded because of an error by the police that the Magistrate had discovered after the trial. His Honour noted that much of the time at trial was spent with the appellant tendering material which had no bearing on any issue in the trial. He was indulged and assisted during the trial as an unrepresented defendant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant informed me that he had returned the cheque for $808.50 sent to him by the respondent. As I pointed out in the course of submissions, the acceptance of payment of the costs awarded to him does not prejudice his position on appeal. In other words, he can cash the cheque and still argue that he was entitled to a higher amount. Conclusion I am not persuaded that there was any error in the exercise by the Magistrate of his discretion as to the award of costs. His Honour’s decision was not affected by a process error and nor did it give it give rise to an outcome error (apart from a minor arithmetical error). As I have noted previously, there was an arithmetical error in the Magistrate’s calculation of the amount payable. His Honour determined that costs should be awarded in respect of items number 1, 2, 3 and 8. The Scale fixes the amount payable for those items as respectively $280, $200, $75 and $375. That produces a total of $930. A further sum of $93 must be added in respect of GST. Thus, the total amount awarded by way of costs should have been $1,023. Counsel for the respondent accepted the correctness of my calculation. I vary the judgment under appeal to that extent only.

Ratio Decidendi

Legal Principle Established

I will deal with those issues in turn.Whether a party may be awarded costs for preparation time A successful party will usually be compensated for the amount expended on legal fees on a party/party basis (and, in some circumstances, on a solicitor/client or indemnity basis). In practice, costs awarded on a party/party basis will usually be significantly less than the costs actually incurred. Costs awarded in accordance with a set scale may also be less than the costs actually incurred. It is a very long-standing principle that parties are not compensated for the time spent out of court in preparing for litigation. The history of that principle, and its basis, was examined in some detail by Bray CJ (with Hogarth and Sangster JJ agreeing) in Willing v Hollobone.[6] Bray CJ also held that the costs payable to a successful self-represented party are limited to disbursements and out of pocket expenses. Those expenses include matters such as Court fees, fees for expert reports, photocopying and binding of documents, courier costs, travelling expenses and so forth. The principle was also recognised by the Full Court in Kelly v Noumenon Pty Ltd.[7] A successful self-represented party may also be compensated for time spent in presenting their case in Court on the same basis as a witness.[8][6] (1972) 3 SASR 532 at 533-535 (Bray CJ), 542 (Hogarth J) and 542 (Sangster J). [7] (1988) 47 SASR 182 at 184 (King CJ) and 196 (Prior J).[8] Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 at 185 (King CJ) and 196 (Prior J). The High Court reviewed the principles governing the award of costs in Bell Lawyers Pty Ltd v Pentelow.[9] The primary issue in that case was whether the exception stated by the Court of Appeal of England and Wales in London Scottish Benefit Society v Chorley could be extended to barristers. [10] That exception allowed a solicitor, who had acted for themselves in successful legal proceedings, to recover costs even though a layperson could not do so in the same circumstances. The High Court held that the Chorley exception was no longer part of the common law of Australia and could not be applied to either solicitors or barristers.[11] [9] [2019] HCA 29; (2019) 372 ALR 555; (2019) 93 ALJR 1007. [10] (1884) 13 QBD 872 at 877. [11] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 at [57] (Kiefel CJ, Bell, Keane and Gordon JJ), [63] (Gageler J) and [99] (Edelman J). In the course of their judgment in Bell Lawyers, Keifel CJ, Bell, Keane and Gordon JJ stated:[12] In that regard, costs are a creature of statute. It has never been thought that any of the ubiquitous statutory provisions empowering courts to order costs are available to compensate a litigant for his or her time and trouble in participating in litigation. That is because costs are awarded by way of indemnity; they are not awarded as compensation for lost earnings, much less as a reward for a litigant's success. The courts have long regarded the statutory power to make an order for costs as confined by the concern to provide the successful party with a measure of indemnity against the expense of professional legal costs actually incurred in the litigation. Thus, the majority in Cachia said:“It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant.”(Citations omitted)[12] Ibid at [33] (Kiefel CJ, Bell, Keane and Gordon JJ).