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 in the calculations made by the Magistrate in his application of the Scale. The Magistrate computed the costs at $808.50 (inclusive of GST). However, the Scale items identified by the Magistrate required that he should have awarded the appellant $1,023 (inclusive of GST), rather than $808.50.
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.
The Magistrate indicated that it was for those reasons, as well as the fact that it was a simple matter, that had proceeded swiftly to trial and that was dealt with relatively swiftly, that he was comfortable in applying the Scale to determine costs. He allowed a whole day, even though a whole day was not spent in Court. The Magistrate also observed that some documentary material sent by the appellant to the Court by email on the day that the costs ruling was delivered was not relevant to the determination. I note that that this material relates to work done by the appellant in his business as a builder.
The grounds of appeal
The grounds of appeal advanced by the appellant are as follows:
1.The defendant was acquitted.
2.The alleged scale of costs deemed by the Court is way out of date.
3.The scale is pure discrimination against the self-represented.
4.The self-represented must get the same standard fee of a Solicitor or it is purely procedural unfairness. If a solicitor gets $390 + GST per hour and a self-represented only get [sic] $32 + GST per hour that creates a very serious procedure unfairness.
5.That is to say, example, if a Solicitor wins a 20-hour Court case, the self-represented has to pay costs of $12,100. However, if the Solicitor loses, he/she only has to pay out costs according to the scale $700 if lucky, leaving the defendant Solicitor with no incentive to negotiate, mitigate or even settle, period.
6.Alternatively, the self-represented must get the full loss of his/her income.
7.The loss of income is a real loss to defend oneself against wrongly charged, meaning in most cases it is much cheaper to plead guilty and pay the fine. That is not at all justice.
8.The self-represented must have a level playing field or it is serious bias against the self-represented and procedure fairness. Criminal in fact.
9.To the self-represented this bias by the Courts is nothing more than perverting the course of Justice, period.
The appellant’s submissions
A substantial part of the appellant’s written submissions comprised his general grievances with the Australian legal system and the views that he holds about particular judges and magistrates. While I note his views, that material is not relevant to his appeal.
The fundamental point made by the appellant is that it is procedurally unfair for a person who is self-represented to be awarded costs on a lower scale than a legal practitioner. The appellant further submitted that the costs scale is out of date and should be revised. He also submitted that costs should provide compensation for time lost from work. He contends that due to the different approach taken to the award of costs he, and other self-represented litigants, are denied procedural fairness.
He also submitted that the amount he is claiming is actually below what he could have earned during the time he spent in dealing with the matter. There was a suggestion in his oral submissions that he may have lost time from a job at Coober Pedy due to the need to deal with the prosecution. Apart from that matter, the appellant’s oral submissions did not add anything to his written submissions.
The appellant sought to support his appeal with documents that, in his view, supported his contentions as to the income that he could have earned but for the time that he had spent on preparing his case in response to the police prosecution. For the reasons indicated below, this material was not relevant to the appeal. He also included material of even less relevance, such as the cost of his daughter’s school fees and dental braces.
The respondent’s submissions
Counsel for the respondent provided detailed written submissions and did not seek to supplement those submissions at the hearing of the appeal.
The respondent submits that an appeal against the award of costs concerns the exercise of a general discretion and the Court may only intervene in the circumstances identified in House v The King.[2] Thus, an order for costs made by the Magistrates Court will not be disturbed unless some error of principle or irregularity in the proceedings is disclosed, or if it appears that the amount awarded is manifestly excessive or inadequate.[3] The order made by a magistrate will not be disturbed on appeal merely because the appellate court would have made a different decision if it had decided the matter at first instance.
[2] (1936) 55 CLR 499.
[3] Police v Leonard (1995) 64 SASR 390.
Section 189 of the Criminal Procedure Act 1921 (SA) confers a wide and general discretion with respect to the award of costs. That discretion applies not only to whether an order for costs is to be made but also as to the amount of the costs.[4] Rule 51.03 of the Magistrates Court Rules 1992 (Criminal) provides that “[s]ubject to any order of the Court to the contrary, the scale of costs set out in the first schedule shall apply.”
[4] Curnow v Police (2008) 100 SASR 290 at [14].
The respondent submits that the Magistrate published detailed reasons which reflected a considered approach to the exercise of his discretion. His Honour properly applied the settled principles regarding the award of costs.
The respondent also observes that the fees set out in the Scale are intended to be the norm and departure from the Scale must be based upon something which clearly distinguishes the case from the norm.[5] There was nothing in this case which justified a departure from the Scale. The Magistrate did not err in his approach to the award of costs.
[5] Konieczka v Police [2006] SASC 288 at [22] (Perry J with Nyland and Sulan JJ agreeing).
Consideration
There are three issues in this appeal. They are:
1.Whether successful litigants, including those who are self-represented, are entitled to be compensated for the time spent in preparing their case when costs are awarded;
2.Whether a person who is not a legal practitioner could or should be awarded costs under the Scale at the higher rate applicable to solicitors; and
3.Whether the circumstances of this case warranted the Magistrate awarding the appellant costs at a rate higher than that set under the Scale for a person who is not legally qualified.
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).
While those observations by a majority of the High Court, were arguably obiter, the principles stated by their Honours were carefully considered. Accordingly, the observations made by the High Court must be followed by all courts in this State and elsewhere in Australia in the absence of any statutory modification.[13] Thus, neither the Magistrate nor this Court could award costs to the appellant based upon his loss of income due to the time spent in preparing his case.
[13] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134].
So as to remove any possible confusion on the part of the appellant, I stress that the prohibition on successful parties to litigation being awarded costs for their loss of income due to the time they have spent on litigation is part of the common law of South Australia. It is not a matter where the Magistrate was entitled to exercise any discretion. The principle applies to all persons involved in litigation, whether they are a legal practitioner or not. The High Court determined in Bell Lawyers that the exception that formerly applied to solicitors was unjust and should not continue.
Whether an unqualified person can be awarded costs under the Scale at the higher rate applicable to legal practitioners
Once again, so as to remove any possible confusion on the part of the appellant, I stress that when costs are awarded at the higher rate applicable under the Scale where work has been done by a legal practitioner, Bell Lawyers makes clear that this is only permissible where practitioners have been instructed by a party to the litigation and are not themselves a party. Some of the submissions made by the appellant appeared not to recognise that distinction and to assume that a practitioner acting on their own account would qualify for the higher rate. My attempt to clarify that with the appellant was not successful.
The higher rate under the Scale recognises that the award of costs operates as a partial indemnity in favour of a successful party against the costs they have incurred by way of legal fees in conducting the litigation. This is the underlying principle governing the award of costs acknowledged in the passage from the High Court judgment in Bell Lawyers that I have set out above at [24].
Importantly, the Scale gives effect to the point made by King CJ and Prior J in Kelly v Noumenon Pty Ltd that, where a successful party has been represented by a non‑legally qualified person (whether as a self-representative or not), it is appropriate to allow costs akin to a witness fee for time spent in court. That approach benefits persons in the same situation as the appellant.
The Scale also modifies the strict common law position by allowing a non-legally qualified person to be awarded costs for some pre-trial work that does not involve an attendance at court. At common law, a layperson would not be entitled to costs for that work. Thus, the Scale has made a not insignificant concession in favour of persons such as the appellant.
While a Magistrate has a discretion to award costs to a self -represented party at a rate higher than that set in the Scale, that would only be appropriate in the circumstances discussed below at [34]. It is unlikely, but not impossible, that circumstances might exist that may justify a magistrate awarding costs to a layperson at a rate similar to that applicable to a solicitor under the Scale. However, I have found at [35] below that the Magistrate correctly concluded that there was no proper basis to award costs to the appellant at a rate higher than that applicable to a non-legally qualified person.
Whether a departure from the Scale was warranted

The approach adopted by the Magistrate to the award of costs was completely orthodox. His Honour correctly identified that the appellant was entitled to costs as he had succeeded in his defence of the prosecution, albeit that this was due to a fundamental error in the police evidence.
In Konieczka v Police Perry J observed, with Nyland and Sulan JJ agreeing, in relation to the application of the Scale that:[14]
[T]he First Schedule Costs are intended to be the norm, and departure from them must be based on something which clearly distinguishes the case from the norm.
[14] [2006] SASC 288 at [28].
Perry J further observed in Konieczka, that:[15]
Justification for departure from the scale may arise from a large variety of circumstances, including the complexity of the case, the seriousness of the charge, whether it was reasonable to brief senior counsel, the conduct of the prosecution of witnesses for the prosecution, and other matters. Likewise, the amount allowed will be influenced by similar factors.
[15] [2006] SASC 288 at [41].
It is manifestly clear that the case was a run‑of‑the‑mill traffic prosecution with the police relying on a series of evidentiary certificates to prove the elements of the prosecution case (albeit unsuccessfully). The Magistrate correctly concluded that this “was a simple matter … and was dealt with relatively swiftly”. His Honour clearly recognised that he had a discretion to depart from the Scale. However, in the particular circumstances, his Honour correctly decided that there was nothing whatsoever about the case that warranted departure from the norm. Accordingly, the only possible decision was to award costs in accordance with the Scale.
Other matters
I reject the contention that the appellant suffered a denial of procedural fairness or natural justice because of the difference in the Scale between those who are legally represented and those who are not. The fact is that if the appellant had so chosen, he could have been legally represented. In that event, he would have been entitled to costs at the higher rate provided in the Scale. Those costs would be payable in recognition of the costs that he would have incurred in engaging legal representation rather than on account of his loss of time from work.
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.