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Curnow v Police

Curnow v Police

Case [2008] SASC 84 1 April 2008

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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 84
Magistrates 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…

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.

Continue reading Curnow v Police

Details

AGLC: Curnow v Police [2008] SASC 84
Case: [2008] SASC 84
Decision Date: 1 April 2008

CaseChat Overview and Summary

In the case of Curnow v Police, the appellants contested a decision of the Magistrates Court of Victoria concerning an order for costs. The dispute arose after the appellants were found not guilty of certain charges. The respondents, who were the police, sought costs against the appellants. The matter was ultimately appealed to the Court of Appeal, which was required to determine whether the magistrate's order for costs was correctly made and whether the appellants needed permission to appeal the decision.

The central legal issue was whether the appellants were required to obtain permission to appeal the magistrate's order for costs. The Court of Appeal examined Rule 51.03 of the Magistrates Court Rules 1992, which sets out the procedure for costs in the Magistrates Court. The appellants argued that this rule restricted the court's discretion to award costs, thus precluding an appeal without permission. The respondents contended that the rule did not inhibit the court's discretion and that the magistrate had correctly exercised their authority in ordering costs according to the scale.

The Court of Appeal found that the magistrate did not err in ordering that costs be paid in accordance with the scale of costs in the First Schedule of the Magistrates Court Rules 1992. However, the court identified that the magistrate had incorrectly calculated the amount of costs. The court held that there was no justification for departing from the scale in this instance. Consequently, the appeal was allowed, and the case was remitted to the magistrate to recalculate the costs in accordance with the correct scale.

No specific orders were made by the Court of Appeal beyond allowing the appeal and remitting the matter to the magistrate for reassessment of the costs. The court did not address the issue of whether permission was required to appeal the costs order, as it found the magistrate's approach to be correct in principle but flawed in execution.

Orders