Curnow v Police
[2008] SASC 84
•1 April 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CURNOW v POLICE; STRAUSS v POLICE; ERRINGTON v POLICE
[2008] SASC 84
Judgment of The Honourable Justice Debelle
1 April 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT
Costs – award of costs to successful defendants – magistrate ordered that costs be paid in accordance with scale of costs in First Schedule of Magistrates Court Rules 1992 – whether appellants required permission to appeal – whether Rule 51.03 of Magistrates Court Rules fetters discretion as to costs – no justification for departure from an order that costs be paid in accordance with scale – whether magistrate erred in fixing costs according to scale – held, magistrate did not err but had incorrectly calculated costs – appeal allowed.
Criminal Law Consolidation Act 1935 s 40, s 85(3), s 134(1), s 170(2), s 270C(1); Magistrates Court Act 1991 s 42(1), 49(1)(e); Summary Procedure Act 1921 s 189(1); Magistrates Court Rules 1992 R 51.01, R 51.02, R 51.03, First Schedule; Magistrates Court (Civil) Rules 1992 R 106(1)(c); Supreme Court Civil Rules 2006 R 281(b), R 283, referred to.
Hamdorf v Riddle [1971] SASR 398; Konieczka v Police (2006) 245 LSJS 458; [2006] SASC 288; Latoudis v Casey (1990) 170 CLR 534; Ling v Police (1996) 90 A Crim R 376; Mountford v Magistrates Court of South Australia (2006) 95 SASR 103; Norton v Morphett (1995) 83 A Crim R 90; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68, applied.
Police v Pericic [2008] SASC 59, not followed.
Pentroth Pty Ltd v Kirschild Pty Ltd (2006) 96 SASR 129; Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Fordyce v Fordham (2006) 67 NSWLR 497; Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Police v Konieczka [2006] SASC 183; Schaftenaar v Samuels (1975) 11 SASR 266; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Federal Court of Australia, 3 May 1991, unreported, French J), considered.
CURNOW v POLICE; STRAUSS v POLICE; ERRINGTON v POLICE
[2008] SASC 84Magistrates Appeals
DEBELLE J. These are three appeals against a magistrate’s award as to costs.
The appellants had been jointly charged on information with five offences. The charges were:
1Entering a place of residence as trespassers whilst in the company of each other with the intention of committing an offence contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (“the Act”).
2Possession of various articles intending to use them to commit an offence, namely, an assault occasioning actual bodily harm contrary to s 270C(1) of the Act.
3Assault occasioning actual bodily harm contrary to s 40 of the Act.
4Damaging property contrary to s 85(3) of the Act.
5Theft of a hobby horse contrary to s 134(1) of the Act.
The appellants pleaded not guilty to each of those charges. After their solicitor had conducted negotiations with the prosecuting authorities, three of those charges were dismissed for want of prosecution. The trial proceeded on two counts. They were the count charging assault occasioning actual bodily harm and the count charging damage to property. The trial was heard before a magistrate.
The magistrate found that there was no case to answer with respect to the charge of assault occasioning actual bodily harm against the appellants Errington and Curnow. He found the appellant Strauss not guilty of that charge. The magistrate found there was no case to answer with respect to the charge of damaging property against Errington but a case to answer as against Curnow and Strauss. He found both not guilty of that charge. Thus, all of the appellants were acquitted of all charges against them.
The charges had arisen out of a matrimonial dispute. The appellant Tanya Curnow had gone to a house that she and her husband had occupied at Whyalla. She was the tenant named in a tenancy agreement for the house. She and her husband had become estranged. She went with the other appellants to recover her property from the house. Her husband refused her permission to enter. The appellants forced their way into the house by breaking down the door. Shortly after, as the magistrate found, Strauss was confronted by Mr Curnow who was holding a knife. Strauss threw a drawer from a cupboard at Mr Curnow and told the other appellants to leave. They did so. Mr Curnow followed Strauss. Curnow was still armed with a knife. Strauss used a hobby horse to strike Curnow on the arm which held the knife. The magistrate found that Strauss had acted in self-defence.
The appellants applied for costs. The appellants Curnow and Strauss had been represented by Mr Stokes of counsel. The appellant Errington had been represented by Mr Issacs, a solicitor employed by Messrs Caldicott and Co, who had acted as solicitors for all of the appellants. The hearing had occupied two days. By letter dated 25 September 2007 the appellant’s solicitors made a claim for costs and counsel fees on behalf of each appellant. The claim was as follows:
Curnow $9,059.58
Strauss $14,947.46
Errington $8,148.43The police prosecutor replied by letter dated 20 November 2007. He offered $2,862.32 for the costs payable to the appellants Curnow and Strauss and $2,563 to the appellant Errington for his costs. The parties could not agree costs. The claim for costs was listed for hearing before the magistrate on 18 December 2007.
The magistrate ruled that the costs would be assessed according to the scale of costs in the Magistrates Court. The magistrate did not deliver written reasons for his ruling. Instead, he made brief remarks to the effect that the claims for costs should be dealt with on the basis of the standard scale. The reference to “the standard scale” was plainly a reference to the scale of costs in the First Schedule to the Magistrates Court Rules 1992. He ordered that the sum of $2,000 be paid for the costs of each of the appellants Curnow and Strauss and the sum of $2,850 for the costs of Errington.
The appellants have appealed against the order on the ground that the award as to costs is insufficient having regard to the amount of work undertaken. They contend that the magistrate erred in failing to take account of the special and unusual features of the matter and to grant costs on an indemnity basis. The claim for indemnity costs was abandoned in the course of the appeal. I will return to that question.
Permission to Appeal
As this is an appeal against an order as to costs, there is a question whether the appellants must obtain permission to appeal. The order is a final order or judgment. Section 42(1) of the Magistrates Court Act 1991 provides for appeals in criminal proceedings of this kind. It is in these terms:
A party to a criminal action may, subject to this section and in accordance with the rules of the appellant court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
This court is the appellate court to which s 42 refers. The requirement that the appeal be in accordance with the rules of this court raises the question whether the appeal is subject to Rule 281(b). Rule 281(b) provides:
Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if…the appeal is limited to a question about costs.
There is no statutory provision which must be considered apart from s 42(1).
Section 42(1) provides a right of appeal in respect of a final judgment qualified only by the fact that the appeal must be in accordance with the rules of this court. The requirement that an appeal be in accordance with the rules of this court does not circumscribe or limit the right of appeal nor reduce the entitlement to appeal against any judgment. Instead, it means that the appeal must be congruent with the rules, that is to say, the appeal must comply with the rules of court that prescribe the procedure to be followed. One example is the time limit of 21 days prescribed in Rule 283 for filing the notice of appeal. Rule 281(b) is not a rule of procedure but a rule of substantive law proscribing appeals on questions of costs except with the permission of the court. The meaning and operation of s 42 cannot be amended by a rule which is intended to govern appeals as to costs within the Supreme Court. For these reasons, the appellants do not have to apply for permission to appeal. That conclusion accords with a practice that had applied before the Supreme Court Civil Rules 2006 came into force: see, for example, Police v Konieczka [2006] SASC 183; Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Hamdorf v Riddle [1971] SASR 398.
The appellants have, in any event, applied for permission to appeal. The respondent does not oppose this application. I therefore turn to consider whether this is an appropriate case for permission to appeal. As will be noted in a moment, a difference of judicial opinion exists as to the relationship between Rule 51.03 of the Magistrates Court Rules and s 189(1) of the Summary Procedure Act 1921. In Konieczka v Police (2006) 245 LSJS 458; [2006] SASC 288 the Full Court held that, while the discretion as to costs was at large, a claim for indemnity costs would only be justified in exceptional circumstances. In Police v Pericic [2008] SASC 59, White J acknowledged that he was bound by Konieczka but suggested at [22] that the Full Court had erred in deciding that special or exceptional circumstances were required for a departure from the scale of costs in the First Schedule. Given this difference of opinion, it is appropriate to grant permission to appeal. Another reason for granting permission is that the appeal involves an important question as to the operation of Rule 51.03 of the Magistrates Court Rules. For these reason, I granted permission to appeal.
A Failure to Give Reasons
As already noted, the magistrate gave no reasons for his decision beyond stating that the costs should be assessed on the scale in the First Schedule. It was desirable for the magistrate to give at least brief reasons for his decision. This was a final order determining whether the appellants were entitled to an order for costs and, if so, the amount of those costs. The order was capable of being appealed, subject perhaps to a grant of permission to appeal. The magistrate should have given at least brief reasons for his decision. I respectfully agree with White J in Pericic at [11]:
11The content of reasons to be given for a judicial decision varies according to the circumstances and context of the decision being made. In relation to questions of costs, it is quite common for very succinct reasons to be given. That is because of the broad nature of the discretion usually being exercised. It would not have been at all surprising in this case if the magistrate had given only brief reasons for his decision. But the parties were entitled at least to brief reasons explaining why the magistrate thought it appropriate to depart from the scale in the Rules, and how it was that he had reached the figure of $11,500.
In this case all that necessary was a short statement of the factors which had caused the magistrate to decide that the costs should be assessed on the scale in the First Schedule. 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: Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Mountford v Magistrates Court of South Australia (2006) 95 SASR 103. The reasoning in those decisions applies with equal force where the aggrieved party must obtain permission to appeal. As the magistrate has erred, it is necessary for the discretion to be exercised afresh. Generally speaking, it would be desirable to remit the matter to the magistrate to exercise his discretion afresh. He had heard the trial and is the person who has the best understanding of the issues, the relative complexity of the matter and the conduct of the parties: see also Pericic at [14]. However, the magistrate has retired since making this order. It is, therefore, necessary for this court to determine what amount should be allowed for costs. Before doing so, it is necessary to consider the views of White J in Pericic.
The Power to Award Costs
The power to award costs in summary proceedings is prescribed by s 189(1) of the Summary Procedure Act 1921 which provides:
Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.
There is no other provision in s 189 which is relevant in this appeal. Section 189(1) invests the court with a wide discretion: Hamdorf v Riddle; Ling v Police (1996) 90 A Crim R 376 at 384.
It is necessary to consider also Rules 51.01, 51.02 and 51.03 of the Magistrates Court Rules 1992 which provide:
51.01 Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02 For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
Rule 51.01 recapitulates the effect of s 189(1). Rule 51.01 cannot qualify or restrict the wide discretion invested in the Magistrates Court by s 189(1). A rule of court cannot qualify a provision in an Act of Parliament in the absence of some authority in that Act to do so. Rule 51.02 entitles the appellants to an order for costs not only in respect of the charges which were heard and dismissed as well as those which were dismissed as a result of the prosecution not tendering evidence. The appellants are, therefore, entitled to an award for costs in respect of all charges against each. Rule 51.03 deals with the amount to be awarded for costs.
Section 189(1) invests the Magistrates Court with a general discretion as to costs. That discretion operates not only as to whether it is proper to make an order as to costs but also as to the amount of those costs: Ling v Police. When Ling was decided, s 189 was the only provision governing the issue of costs in the Magistrates Court. That position has now changed. On 6 May 2004 Rule 51 was made. Section 49(1)(e) of the Magistrates Court Act authorises the Magistrates Court to make rules of court regulating costs. Rule 51 was made in the exercise of that power. Rule 51.03 cannot and does not qualify the general discretion as to the costs vested in a magistrate by s 189(1). I repeat, a rule of court cannot alter the operation of a provision in an Act of Parliament in the absence of some authority in that Act to do so. Rule 51.03 is complementary to s 189(1). Rule 51.03 does not purport to regulate the question whether an award as to costs should be made. Instead, Rule 51.03 assumes that an order has been made that costs are to be paid by one party to another. The purpose of Rule 51.03 is simply to provide one means by which the court may assess the amount of costs to be paid. It does so by prescribing a scale which is to operate in the absence of an order to the contrary. At the same time, a magistrate has a discretion whether to order that costs be assessed on a basis other than that in the First Schedule.
The prescription of a scale of costs is a means frequently adopted for the purpose of assessing what is reasonable compensation for costs incurred. The prescription of a scale is not, nor is it perceived to be, an unwarranted fetter on the exercise of a discretion as to costs. Instead, it is the court’s measure of what is a reasonable award of costs. Nevertheless, Rule 51.03 invests a magistrate with a discretion to depart from that scale in the First Schedule when the magistrate believes that it is appropriate to do so.
The expression “subject to any order of the court to the contrary” which introduces Rule 51.03 is a familiar formula not infrequently used in relation to orders as to costs. It does not establish a presumption that must be displaced but instead leaves the discretion as to costs at large: Fordyce v Fordham (2006) 67 NSWLR 497 at [84]; Pentroth Pty Ltd v Kirschild Pty Ltd (2006) 96 SASR 129 at [24]-[27]; Pericic at [17]. Rule 51.03 does not, therefore, displace or circumscribe the overall discretion as to costs vested in the Magistrates Court. It does no more than require the magistrate to consider all relevant circumstances and decide whether costs should be assessed on some basis other than that provided by the First Schedule. The relevant circumstances will include such matters as whether the proceedings were complex, the nature of the issues, the length of the hearing and the conduct of the parties. In short, the magistrate will have regard to all factors relevant to the determination of an appropriate order as to costs.
The interaction of s 189(1) and Rule 51.03 was considered by the Full Court in Konieczka and by White J in Pericic. White J disagreed with the reasoning in Konieczka but applied it. Mr Robertson, who appeared for the respondents, submitted that White J was correct and that the Full Court’s decision in Konieczka as to the meaning and effect of s 189(1) and Rule 51.03 should not be followed. While recognising that a single judge of this court is bound by that decision, he stated that the appellants seek to reserve the opportunity to advance that contention relying on the reasons of White J in Pericic at [17]-[23]. For the reasons which follow, I respectfully believe the reasoning in Konieczka is correct
In Konieczka, the Full Court was considering an application for permission to appeal against an order for costs. The applicant had been acquitted of a charge of assault. The applicant applied for costs on an indemnity basis. The amount of the claim was $17,900. The magistrate ordered that the informant contribute $12,000 towards the applicant’s costs. The informant appealed on the ground that the award was too high. The applicant cross-appealed contending that the costs should have been assessed in the full amount of his claim. The appeal judge further reduced the award of costs to $7,000 and dismissed the cross-appeal. The applicant applied for permission to appeal. The Full Court dismissed the application.
In the Full Court the appellant had contended that, because he had adamantly denied the charge and had disclosed his case from the outset, costs should be assessed on an indemnity basis. The magistrate had had some regard to that contention in making the award, his reasons included the comments that the defendant had “laid its (sic) cards on the table from the start” and that the prosecution had “little prospect of conviction, and the defendant should not have to bear the costs of defending the matter”. Delivering the judgment of the court, Perry J sounded a note of caution against that kind of reasoning. He said:
28The mere fact that a defendant proclaims his or her innocence from the start, and even if the prosecution case does not appear to be particularly strong, these are circumstances which are commonly experienced and would not necessarily justify departure from the First Schedule costs. It seems to me that the 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.
29Furthermore, I do not think that the defendant can add any weight to an application for indemnity costs, by writing a letter at an early stage, through his solicitors, as was the case here, proclaiming his innocence and threatening in an “in terrorem” fashion, to claim indemnity costs if the prosecution is dismissed.
I respectfully agree with those remarks. Letters from a solicitor proclaiming the innocence of the client are not a sound basis for an order that indemnity costs be paid.
In the course of his reasons, Perry J had noted that the discretion as to costs is at large: see, for example paragraphs 22 and 39. He pointed out that the discretion as to costs must not be exercised arbitrarily. When discussing the amount of costs he said:
39Nothing I have said should be understood to detract from the general rule that a successful defendant is entitled to an order for costs in his or her favour. But an award of costs at a level beyond the party and party scale set by the rules should only be justified when there are exceptional circumstances. Emphatic protestations of innocence coupled with assertions that the complainant is lying, are commonplace. Standing alone, they would not ordinarily justify a departure from the general rule.
40Viewed in that light, the applicant might be thought to have been fortunate to obtain an award of costs beyond the party and party scale.
41But having done so, the amount to be allowed was entirely a matter for the exercise of discretion. The discretion should not be circumscribed by any attempt to lay down any rigid rules or principles. 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 or of witnesses for the prosecution, and other matters. Likewise, the amount allowed will be influenced by similar factors.
These remarks must be read bearing in mind the claim for indemnity costs in that case. That tends to explain the somewhat emphatic matter in which Perry J has expressed himself in paragraph 39. When Perry J used the expression “exceptional circumstances”, he was referring only to the circumstances in which an order as to indemnity costs should be made. In paragraph 41 Perry J discussed the circumstances in which a magistrate might exercise the discretion to award costs on a basis other than that fixed in the First Schedule. His Honour clearly stated that that discretion is not to be circumscribed by any rigid rules or principles. In no respect did he fetter the exercise of that discretion. Instead, he clearly stated that a departure from the rule may be justified in a large variety of circumstances. He added that the amount to be allowed will be influenced by similar factors.
In Pericic at [21] White J said that the Full Court in Konieczka had decided that Rule 51.03 was to be construed as providing a presumptive position to be departed from only in special or exceptional circumstances. He added at [22]:
22On its face, Konieczka appears to suggest that the amount claimed by the respondent for costs in the present case is to be considered by inquiring whether there are, in the circumstances of the case, special or exceptional circumstances justifying a departure from the scale of costs fixed by Schedule 1. It seems, in other words, to have the effect of imposing a fetter on what would otherwise be the wide discretion to which the earlier authorities referred.
I respectfully disagree. For the reasons just expressed, Perry J did not fetter the wide discretion imposed by s 189(1). Instead, the expression “exceptional circumstances” was applied only to occasions when indemnity costs might be awarded. In paragraph 41 of his reasons, Perry J clearly stated that the discretion was not to be circumscribed by any rigid rules or principles.
A magistrate is at liberty to order that the costs be assessed on some basis other than the First Schedule so that the discretion invested in the Magistrates Court by s 189(1) remains at large and the Full Court so decided in Konciezka. If a magistrate believes that the award of costs on the basis of the First Schedule is inadequate, he or she is at liberty to order that the costs be assessed on some other basis.
The Claim for Indemnity Costs
In Latoudis v Casey (1990) 170 CLR 534 a majority of the High Court (Mason CJ, Toohey and McHugh JJ) held that, as a general rule, a defendant against whom a prosecution had failed was entitled to an order for costs. In that decision, each member of the majority stated that costs are compensatory in the sense that they are awarded to indemnify the successful party against the expense he or she has incurred in the legal proceedings: see, for example, Mason CJ at 543, Toohey J at 565, McHugh J at 566-567. However, I do not understand that the use of the word “indemnify” in that decision was intended to state that the unsuccessful party must fully indemnify the successful party for the costs he or she has incurred. As I understand the reasons of the majority, they were stating no more than that the successful party was entitled to recover compensation for costs in such amount as the court believed was reasonable.
There are several reasons for that conclusion. First, as Phillips JA and Hayne JA pointed out in Norton v Morphett (1995) 83 A Crim R 90 at 93 and 101 respectively, the question that fell for determination in Latoudis v Casey was when should an order for costs be made in favour of a successful defendant, not how those costs should be fixed. Secondly, both Mason CJ at 540 and McHugh J at 568 had approved the decision of the Full Court in Hamdorf v Riddle that, when awarding costs in summary proceedings which terminate in favour of a defendant, courts should in a general way exercise their discretion as they do in civil cases. The ordinary rule in civil cases is that a successful party is awarded costs on a party and party basis. Costs will not be paid on an indemnity basis unless there be some special or unusual features to justify a departure from the ordinary rule: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. Thirdly, both Toohey J at 564 and McHugh J at 568 had referred with approval to the decision of Wells J in Schaftenaar v Samuels (1975) 11 SASR 266. In that case, Wells J had examined the principles on which courts of summary jurisdiction should act when exercising the discretion to award costs to a successful defendant. He concluded (at 274) that the wide discretion as to costs in the Chancery Courts had been conferred on courts of summary jurisdiction. He then set out a list of guiding principles. He did not order the complainant to pay costs on an indemnity basis. His order was that the complainant pay one half of the assessed costs of the successful defendant. The approval of that decision implies an approval of an award of costs less than a full indemnity. Finally, I respectfully agree with the analysis of Phillips JA in Norton v Morphett at 93-95 that the High Court had decided that costs of a successful defendant were not, as a general rule, to be paid on an indemnity basis. In reaching this conclusion I do not overlook the fact that in Latoudis v Casey at 565 Toohey J had said:
[O]rdinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket.
While that expression suggests a complete reimbursement of all costs incurred by a successful defendant, I believe, for the reasons already expressed, that Toohey J did not intend to state that an award of indemnity costs should be made.
An award of indemnity costs is not, therefore, the usual order as to costs. The usual order is that costs be paid on a party and party basis. The circumstances in which an order that indemnity costs be paid was examined in Colgate Palmolive Co v Cussons Pty Ltd. While that decision concerned costs in civil proceedings, the principles stated therein apply mutatis mutandis to criminal proceedings. That is consistent with the reasoning in Hamdorf v Riddle at 402. In the ordinary course the order will be that costs be paid on a party and party basis. An order that costs be paid as an indemnity will be made only if there be some special or unusual feature in the case to justify the court in departing from the ordinary practice: Colgate Palmolive at paragraph 4 on 226. Some examples of such special features are evidence of particular misconduct that causes loss of time to the court and to the other party; the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; and the prolongation of a case by groundless contentions. It must always be remembered that the categories in which the discretion as to costs may be exercised are not closed: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Federal Court of Australia, 3 May 1991, unreported, French J) quoted in Colgate Palmolive at 231. In my view, these are the considerations to which Perry J was referring when he said exceptional circumstances were required for an order that costs be paid on an indemnity basis.
While this prosecution might not have been a run of the mill prosecution in the Magistrates Court, it could not be described as unusual. The two charges are of a kind which were prosecuted with relative frequency in that court. The reasons of the magistrate show that the prosecution case depended on the evidence of an occupier of a house whose evidence the magistrate was not prepared to accept. Instead, he accepted the evidence of the appellants. The hearing occupied two days. There was nothing about the prosecution or the conduct of the trial which indicated exceptional or even special circumstances which would justify costs on an indemnity basis.
The case for an award of costs on an indemnity basis was advanced on the following grounds:
(1) the notice given to the respondent by the appellants’ advisors many months before trial;
(2) the need to brief counsel, including separate counsel;
(3). the futility of the property damage claim; and
(4). the obvious implausibility of the alleged victim’s evidence, particularly in the context of his use of a knife.
The reference in paragraph (1) to a notice given to the respondent is a reference to letters written asserting the innocence of the appellants. I have already noted that letters from a solicitor proclaiming the innocence of their client are not a basis for indemnity costs. That disposes of the first ground. The need to brief counsel is not in itself a basis for indemnity costs. The remaining two grounds depended on the strength of the prosecution case. They provide no basis for an award of indemnity costs. In the course of argument, Mr Robertson, who appeared for the appellants, stated that they did not press the claim for indemnity costs. The reasons already given demonstrate that he was prudent to do so. There is nothing in this case which justifies an award of costs on an indemnity basis.
The Award of Costs
I turn to consider whether this was an appropriate case for an award of costs on a basis other than the scale in the First Schedule. I have no transcript. The only materials available to me are the reasons of the magistrate for acquitting the appellants. Although not a run of the mill case, this was not a case which justified a departure from that scale. There was nothing in the factual allegations that pointed to complexity of a kind which justified a departure from that scale. It was a case that essentially turned on the strength of the prosecution case and the credibility of its main witness.
The scale makes a reasonable allowance for party and party costs. It allows a daily rate for counsel. The rate for counsel is not as generous as the scale of costs of the Legal Services Commission of South Australia but that scale is a scale of costs payable to legal practitioners. It is not a scale for assessing party and party costs. When allowance is made for that fact, the scale in the First Schedule represents a reasonable reimbursement of party and party costs. I will assess the costs on that basis.
The amount claimed for costs was extravagant. On its face a claim for some $32,000 for a relatively run of the mill summary prosecution is an excessive amount to recover on a party and party basis. On examination, it is clear that the claim cannot be justified as a proper reimbursement of party and party costs. First, there is a considerable degree of repetition in the Bill of Costs for each client. A large number of items have been charged to each client when a charge to one client would have been appropriate. Secondly, the profit costs have been computed on the basis of 80 per cent of the Supreme Court Scale. There is no warrant for the costs to be computed on that footing. Mr Robertson purported to justify an assessment on that basis by relying on Rule 106(1)(c) of the Magistrates Court (Civil) Rules 1992. The rule does not assist him as it applies only to civil actions. In any event, Rule 106(1)(c) applies when the action “involved unusual difficulty or intricacy or other proper cause exists”. There is nothing unusually difficult or intricate about this prosecution nor is there any other proper cause which justifies costs being awarded on a percentage of the Supreme Court Scale. Thirdly, counsel fees of $16,500 are claimed for the appellants Curnow and Strauss. They are excessive for a trial occupying two days in the Magistrates Court. Finally, in addition to the profit costs a fee of $1,650 has been charged for Mr Caldicott. There does not appear to be any proper basis for that to be recovered on a party and party basis.
For present purposes the relevant parts of the scale in the First Schedule are:
Schedule 1
Notes:
1 This cost scale is intended for use in making orders as between party and party.
2 The fees set out in item 1 and 2 are intended to cover all necessary attendances and preparatory work for a trial (other than attendance at a pre-trial conference). Where an attendance is unnecessary as a result of default by one or other party, an order should be sought and made at that hearing. The fee set out in item 4 or 5 should be used for that purpose.
No.
Item
Represented by solicitor
Represented by non-legally qualified person
1
Instructions, including all preparation for trial and attendances up to, but not including attendance at a Pre Trial Conference
$600
$150
2
All aspects not otherwise specified from Pre-Trial Conference to Trial, including proofing witnesses, advice or evidence and law (solicitor and counsel) and delivering brief to counsel.
$600
$150
3
Attendance at pre-trial conference
$150
$25
4
Attendance at hearing (see note 2 above)
$60
$15
5
Attendance where detailed argument is necessary (see note 2 above)
$100
$25
6
Arranging attendance of witnesses (including issue and service of summons if necessary) - per witness
$40
$10
Counsel fees
7
Fee on brief, to include attendance for plea or withdrawal (if separate counsel briefed)
$400
8
Each day
$600
$150
The fees that the police prosecutor was prepared to agree were based on the scale. In his letter dated 20 November 2007 he stated how he had calculated them:
Errington $2563.00 (Nos. 1, 2 and 8 (2 day) plus travel (1 unit) as per Schedule)
Strauss $2862.32 (Nos. 1, 2 and 8 (2 days) plus accommodation and taxi fare)
Curnow $2862.32 (Nos. 1, 2 and 9 (2 days) plus accommodation and taxi fare)While costs of travel and accommodation have been included, no allowance has been made for disbursements other than counsel fees. The scale allows the recovery of proper disbursements other than counsel fees. Those disbursements include photocopying. While the disbursements claimed for photocopying seem high, there is no discernible ground on which they could properly be reduced. The disbursements other than for travel and accommodation for each appellant are
Errington $218.30
Strauss $106.80
Curnow $101.20Those disbursements will be allowed.
The costs as calculated by the police prosecutor properly had regard to the fact that the hearing occupied two days. Counsel fees for two days were allowed in the case of the appellants Strauss and Curnow and a solicitor’s fee for two days was allowed for the appellant Errington, who had been represented by a solicitor. The costs as calculated by the police prosecutor should be allowed with the additional amount for disbursements. It is apparent that the magistrate did not correctly calculate the costs according to the scale in the First Schedule. The appeal must therefore be allowed to correct the award. The order of the magistrate as to costs will, therefore, be set aside and in its place an order that the following costs be paid to each appellant.
Errington $2,781.30
Strauss $2,969.12
Curnow $2,963.52An award of some $8,700 is a reasonable award for party and party costs in this matter.
Only One Appeal Required
Before concluding these reasons, it is necessary to remark on the fact that three appeals have been instituted when only one was necessary. These proceedings began with one information by which all three appellants were charged with five offences. The hearing of the trial proceeded jointly against each of the three appellants. The magistrate published one set of reasons. The general rule is that all persons jointly charged may appeal against an adverse order by one notice of appeal. There was no occasion for three separate notices of appeal.
In consequence, unnecessary costs have been incurred in drawing, engrossing and filing three notices of appeal, three applications for permission to appeal and three affidavits in support of the application for permission to appeal. Only one of each document was required. Another consequence is that instead of one filing fee of $144 being incurred to file the notice of appeal, three fees in that amount have been incurred. The appellants’ solicitors cannot in any way justify these additional costs. I will, therefore, make orders to the effect that the appellants’ solicitors themselves bear the cost for the two filing fees which were unnecessarily incurred, a total of $288. In addition, there will be an order limiting the costs which the appellants’ solicitors can recover for the work in instituting these appeals to the cost of the preparation and filing of one notice of appeal, one application for permission to appeal and one affidavit in support of that application.
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