C, As v Commissioner of Police - [2013] SADC 166

District Court of South Australia
(District Court Administrative Appeals Tribunal)
C, AS v COMMISSIONER OF POLICE
[2013] SADC 166
Judgment of His Honour Judge Chivell
9 December 2013
PROCEDURE - COSTS - SCALES OF COSTS - DISCRETION TO VARY SCALE
Appeal as to the adequacy of costs awarded by the Police Disciplinary Tribunal to the appellant following dismissal of charges brought against him. Whether magistrate erred in awarding part of the costs on the Magistrates Court scale. Magistrate has wide discretion, both pursuant to the Police (Complaints and Disciplinary Proceedings) Act and at large, in the award of costs. Adequate reasons given by the magistrate for the course taken. No cogent reason to depart from her decision.
Appeal dismissed.
District Court Act 1991 s 42E; Police (Complaints and Disciplinary Proceedings) Act 1985 s 37, s 39, s 40, s 44; Police Regulations 1999 reg 12; Magistrates Court Criminal Rules 1992 First Schedule, referred to.
Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Norton v Morphett (1995) 83 A Crim R 90; Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors [2013] SASCFC 105; House v R (1936) 55 CLR 499; Curnow v Police (2008) 100 SASR 290, considered.

C, AS v COMMISSIONER OF POLICE
[2013] SADC 166

This is an appeal by C against a decision of the Police Disciplinary Tribunal (‘the Tribunal’) on 2 November 2012. On that day an order was made awarding costs of $12,470 plus GST to C, following dismissal of charges brought by the Commissioner of Police (‘the Commissioner’) against him. C argues through his counsel that the award of costs was inadequate.
The Tribunal is constituted by s 37 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (‘the Act’). It consists of a magistrate appointed by the Governor (s 37(2)). The Tribunal’s proceedings are conducted in private (s 40(6)). The Tribunal is bound by the rules of evidence (s 40(8)(a)).
As he was required to do by s 39(3), the Commissioner indicated to the Tribunal at the outset that, if C was to be found guilty, the breaches warranted punishment in category A, namely ‘termination or suspension of the officer’s appointment or reduction in the officer’s rank for an indefinite period’. This is the highest category of punishment provided by the Act.
The charges arose out of an investigation into a fatal shooting at the Cultana Army Base near Port Augusta in October 2009. The investigation was complicated by the fact that the shooting took place on Commonwealth land and involved members of the armed services.
The charges consisted of four counts of failing to act ‘with honesty and integrity in the course of his employment’, contrary to regulation 12 of the Police Regulations 1999. Briefly, the allegations were that:
·in an interview on 16 March 2010 for a superior position he had applied for, C misled the interview committee by asserting that he had conducted a debriefing following the incident, when he had not (count 1);
·in another selection interview the following day, 17 March 2010, he failed to disclose to the committee that he had not forwarded certain documents to his supervisor (count 2);
·in a further selection interview about a week later, on 25 March 2010, he falsely stated that he had forwarded a document to his superior (count 3);
·on 29 May 2010 he falsely stated in a debriefing report that he had conducted a debriefing on 23 October 2009 following the incident (count 4).
C was represented by Miss J Fuller, an experienced and very competent barrister. The Commissioner was represented by a police officer with the rank of sergeant, with experience, I understand, as a police prosecutor.
The Magistrate had earlier upheld a submission of ‘no case to answer’ on count 3. As to the balance of the charges, her Honour gave ex tempore reasons for her decision on 15 March 2012. In essence, her Honour found:
·the assertion at the heart of counts 1 and 4 was that C did not conduct a debriefing – her Honour found that a debriefing did occur, so those charges failed (Reasons, [16]);
·the assertion on count 2 that C had failed to disclose that he had not forwarded certain documents to his supervisor also failed because C had not consciously misled the committee ([25]);
At no stage did the Magistrate assert that the charges had been laid unreasonably. Her Honour described C’s behaviour as ‘far from ideal’ ([7]), and ‘lacklustre’ ([14]), and that it was not surprising that his supervisor formed the view he did that no debrief had occurred ([7]).
At the close of the prosecution case, her Honour did point out to the prosecutor that the case was not strong, and that:
I’d urge you to think about whether, given the last witness’ evidence at its highest, you really can pursue counts 1 and 4.
(T 185, 22.2.12)
However, the proceedings continued for a further two days, after which time the remaining counts 1, 2 and 4 were dismissed.
There was a further hearing on the question of costs, following which, on 2 November 2012, the Magistrate gave further ex tempore reasons for her decision granting costs in the amount I have mentioned. It is apparent from those reasons that:
·costs were granted, up to the end of the third-last day of hearing, on the scale in the First Schedule to the Magistrates Court Criminal Rules 1992;
·counsel fees should be ‘paid in full’ for the last two days because they ‘could have been avoided’ ([2]);
·her Honour also allowed a higher amount for solicitors’ fees for those last two days (a higher amount, I infer, than that provided by the scale) ([3]).
The power to make an order for costs is in s 44 of the Act. That section provides:
The Tribunal may make such orders for costs as the Tribunal thinks just and reasonable.
That is a very wide discretion.
Mr Lindsay, counsel for the appellant, referred to the remarks of Mullighan J in Haslam v Emu Air Charter Pty Ltd,[1] where his Honour referred with approval to Norton v Morphett:[2]
In that case the Court of Appeal, Victoria, expressed the view that the discretion was at large and the Magistrate must exercise it as he sees fit in light of all of the particular circumstances of the case.
[1] (1998) 200 LSJS 454 at 456
[2] (1995) 83 A Crim R 90
Because a Magistrate has such a wide discretion, the circumstances in which an appeal court will interfere with its exercise are limited. In Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors,[3] the Full Supreme Court repeated these well-known principles, at [52] per Stanley J:
The judge had a general discretion as to costs and the basis for awarding costs. The manner in which an appeal against the exercise of a general discretion should be determined is well established. In an appeal against a decision the subject of a general discretion, an appellate court will only intervene where clear error has been shown of the nature identified in House v King. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the trial judge, they would have taken a different course. There is a strong presumption in favour of the correctness of the decision appealed from and that the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong. A decision regarding costs will only be interfered with if the appellate court is satisfied that there is an identifiable error or if the exercise of the discretion was so unreasonable as to require the appellate court to substitute its own discretion.
[3] [2013] SASCFC 105
Mr Lindsay argued that error is demonstrated in the following passage of the argument about costs on 2 November 2012 (T 19):
HER HONOUR:   Look, if I’ve implied that the fees charged are unreasonable, I want to make it very clear that I don’t think so. I think the fees that have been charged both by those instructing you and by you are fair and reasonable, appropriate. There is no question about that. But the fact that that bears no resemblance to the usual scale doesn’t, in my view, make the scale any less appropriate.
Look, otherwise I would never award a Magistrates Court cost scale except to the police prosecutors. You know, what you say could be said about – and the fact is legal services cost money. The scale doesn’t reflect –
MISS FULLER:    No.
HER HONOUR:   – the value that a person gets from counsel, competent counsel and solicitors, that’s one of life’s realities.
However, the following further exchange took place:
MISS FULLER:    And that’s why there is a discretion.
HER HONOUR:   And that’s why there is a discretion and, as I say, I would always award above the scale if I took all of these matters into account that you are referring to. Look, I understand your argument. I think you are on stronger ground for the last two days, but I’m – if there is something else you want to put, I’m not going to prevent you from doing that.
MISS FULLER:    No, no.
HER HONOUR:   But I’m not inclined to award anything other than the stock standard scale costs for the hearing up to and including that intimation of mine, whenever that was. So that would leave two days then –
MISS FULLER:    Yes.
HER HONOUR:   – where, if I accept your argument, I could award above the scale or I could award indemnity costs.
MISS FULLER:    That’s right.
(T 19-20, 2.11.12)
Mr Lindsay argued that, since s 44 entitled the Magistrate to award costs which she thought just and reasonable, by applying the Magistrates Court scale when she thought that produced an unjust result was an error.
I do not accept that submission. Firstly, the passage referred to was from the transcript of a discussion during submissions, and should not be read in the same way as the words of a formal written judgment would be. Secondly, I do not read her Honour’s remarks as suggesting that the scale produced an unjust result. I think that all she was saying was that there was nothing inappropriate or excessive about the charges made by the appellant’s solicitors and counsel. However, her Honour did not consider it appropriate to award them in full – except for the last two days, for the reasons she expressed.
After all, to award the appellant’s costs in full would be tantamount to awarding costs on a full indemnity basis. In fact, Mr Lindsay indicated his client was seeking 90% of full indemnity costs (T 15, 18.10.13). I do not accept that this case is of the type which would justify such a high percentage, in any event.
In my view, the Magistrate was doing no more than complying with s 40(8) of the Act, which states:
Subject to this Act, the Tribunal will in its proceedings –
(a)…
(b)follow, to such extent as it considers appropriate, the practice and procedure of courts of summary jurisdiction on the hearing of complaints for simple offences.
I therefore reject the submission that the Magistrate fell into error by adopting the course that she did. Her Honour is an experienced Magistrate, and an experienced member of the Tribunal. I accept that the charges C faced were serious, but so are many matters heard in the Tribunal, and so are many matters heard in courts of summary jurisdiction. Her Honour was in a very good position to compare relative levels of seriousness and difficulty between such cases.
I am required by s 42E(3) of the District Court Act 1991 to give ‘due weight’ to the decision appealed from, and to her Honour’s reasons for that decision, and I should not depart from that decision except for ‘cogent reasons’. I am not sure whether that last provision does more than state the obvious, but in any event, in my view Stanley J’s comments about costs appeals in Rasch Nominees (supra) apply with equal force to this appeal, notwithstanding the provisions of s 42E(3). Clearly, an error of the type discussed in House v R[4] would constitute a ‘cogent reason’ to depart from a Magistrate’s decision. In my view, there is no such error here.
[4] (1936) 55 CLR 499
The question of the sufficiency of the Magistrate’s reasons for the decision was raised in the appellant’s written outline, although not pressed in oral argument.
A failure to give sufficient reasons can constitute an error of law (see Curnow v Police[5] at [11]). In that case, the Magistrate gave no reasons. Debelle J said:
A failure to give reasons where there is a right of appeal and that failure frustrates the appellate court in properly discharging its function is an error of law (quoting Papps v Police, R v Keyte and Mountford v Magistrates Court of SA).
[5] (2008) 100 SASR 290
There has been no such failure here. The reasons her Honour gave in her ex tempore remarks on 2 November 2012 were clear, and in the context of what had passed between her Honour and the appellant’s counsel during submissions, it was obvious that costs were being awarded on the scale, except for the last two days of hearing because her Honour thought that the proceedings had been unnecessarily prolonged by the prosecution. In all these circumstances, error has not been demonstrated by the appellant, and it has not been shown that her Honour’s exercise of discretion was ‘so unreasonable as to require the appellate court to substitute its own discretion’.
For these reasons, I dismiss the appeal.