DANIELS v Coombe - [2004] SASC 203

Supreme Court of South Australia
(Magistrates Appeals: Civil)
DANIELS v COOMBE
Judgment of The Honourable Justice White (ex tempore)
7 July 2004
PROCEDURE - COSTS - APPEALS AS TO COSTS - DISCRETION
Appeal against Magistrate's decision with respect to costs - Appellant raised constitutional issues at trial - Respondent engaged solicitors and counsel at trial - Statutory power to award costs in summary criminal proceedings - Costs not shown to be manifestly excessive - Appeal dismissed.
Magistrates Court Act 1991 (SA) s 42; Dog and Cat Management Act 1995 (SA) s 33; Summary Procedure Act 1921 (SA) s 189; Judiciary Act 1903 (Cth) s 78B, referred to.
SA Police v Leonard (1995) 64 SASR 390; Latoudis v Casey (1990) 170 CLR 534, applied.
Joosse v ASIC (1998) 159 ALR 260, distinguished.
Moore-McQuillan v Police (Debelle J, 27 November 1998, Unreported); Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Worth v Police [1998] SASC 6674, considered.

DANIELS v COOMBE
[2004] SASC 203
Magistrates Appeal (ex tempore)

WHITE J This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against an order for costs made by a Magistrate.
The appellant was charged on a complaint made on 2 September 2003 with 19 offences. Each count alleged a breach of the Dog and Cat Management Act 1995, which, in these reasons, I will call simply “the Act”.
Count 1 alleged that the appellant, as an occupier of premises at Strathalbyn had, on 15 October 2002, contrary to s 33(1) and s 33(2) of the Act, kept a dog, Pebbles, which was not registered. Counts 2 to 18 alleged the same offence, in respect of the same dog, in respect of the same premises, and in respect of each successive period of 14 days in the period 16 October 2002 to 14 July 2003 inclusive. Count 19 alleged the keeping of Pebbles whilst unregistered at the same premises, in the period since 15 July 2003, contrary to s 33(1) and s 33(3) of the Act.
The charges were heard by a Magistrate in the Mount Barker Magistrates Court on 16 April 2004. The appellant was then unrepresented, as he was on the hearing of this appeal.
At the commencement of the hearing, counts 2 to 10 inclusive were withdrawn, apparently on the basis that the proceedings in respect of those counts had not been instituted within the relevant time fixed by s 52 of the Summary Procedure Act 1921. The appellant declined to enter formal pleas to the remaining counts. The Magistrate proceeded as if he had entered pleas of not guilty.
The prosecution led evidence from Mr Coombe, who was the complainant and also the Chief Executive Officer of the Alexandrina Council, the entity responsible for the administration and enforcement of the Act in that part of Strathalbyn which included the appellant’s property.
In addition, evidence was adduced from the Council’s Dog Management Officer, Mr Hill, and from Ms Cowan, a Customer Services Officer with the Council.
The appellant did not give evidence. In his final submissions, the appellant argued that the Act is invalid. The Act had received the vice-regal assent, but the appellant argued, amongst other things, that the Governor giving that assent had not been validly appointed and therefore could not give that assent. The Magistrate rejected the submission as to invalidity.
The Magistrate found Counts 1 and 11 proved. He entered convictions against the appellant on each of those counts and imposed a fine of $70 in respect of each. In addition, the Magistrate ordered the appellant to pay court fees and levies (the amount of which was not specified), a counsel fee of $800, prosecution costs of $2000 and witness fees of $300. The prosecution costs appear to be comprised of the solicitors’ costs associated with the complaint and the prosecution.
The Magistrate dismissed counts 12 to 19 inclusive. He did so because there was no evidence that the dog Pebbles was still alive during the period to which those counts related, and because the statutory presumptions in the Act upon which the complainant relied did not assist in making good that evidential gap.
This appeal concerns only the order for payment of costs. The appellant does not appeal against the Magistrate’s findings as to the validity of the Act, nor against the entry of the convictions on Counts 1 and 11, nor against the penalty imposed.
The appellant takes the view that the correctness of the convictions insofar as they depend upon the validity of the Act must ultimately be determined by the High Court of Australia. Quoting from his outline of argument:
“The validity of the appellant’s conviction must be determined either by QUESTION OF LAW removed to the High Court of Australia inter alia via Section 40 of the Judic[ia]ry Act 1903 and/or prerogative writ of mandam[u]s via inter alia Judicial Review of Magistrate Ackland’s refusal to uphold and protect the Constitution, (Constitution Act 1934) of the South Australian people, from sabotage.”
I make no comment about the prospects of the appellant having the validity of his convictions determined by the High Court by either of the methods foreshadowed by him. I do, however, record that the appellant has chosen not to raise those issues on this appeal and I also record that nothing has been said during the conduct of the appeal which would indicate that the courses of action foreshadowed by the appellant are either available or appropriate in the circumstances of this case.
The notice of appeal was not filed or served until 14 May 2004. The 14 day period fixed by Supreme Court Rule 96C.02 for the institution of the appeal, after one allows for a public holiday which intervened, expired on 1 May 2004. The appellant seeks an extension of time for the institution of the appeal. The respondent does not oppose that extension being granted and, accordingly, I grant an extension of the time for the institution of the appeal to 14 May 2004.
The appellant argued two points on the appeal with respect to the costs order. First, he submitted that costs should not be ordered against an unsuccessful defendant in a criminal or quasi-criminal matter. As these proceedings were instituted by a complaint and summons, and were prosecutions for offences under the Act, they were, in the appellant’s submission, at least quasi-criminal, so that the Magistrate’s decision to award costs was in error. The appellant sought to support that submission by reference to the order made by Hayne J in Joosse v ASIC (1998) 159 ALR 260.
Secondly, the appellant argued, in the alternative, that the costs order of the Magistrate should have reflected the fact that the complainant failed on 17 of the 19 counts contained in the complaint. If the costs were to be awarded, the complainant should, in the appellant’s submission, be entitled to only ²/₁₉ of the costs incurred by him. Independently of that submission, the appellant submitted that the amounts awarded by the Magistrate were excessive in any event. I will deal with each of those submissions in turn.
Section 189(1) of the Summary Procedure Act 1921, vests the Magistrates Court with the discretion to award costs. It provides:
“Subject to this section, the court may award such costs for or against a party to proceedings as the court thinks fit.”
The balance of s 189 is not relevant in the present context. The discretion granted by s 189(1) to award costs must be exercised judicially. A wide range of factors is relevant to its exercise.
The principles relating to appellate review of the discretion concerning costs are summarised by Debelle J in SA Police v Leonard (1995) 64 SASR 390 at 394-395:
“An order for costs made by a court of summary jurisdiction will not be disturbed unless some error of principle or irregularity in a proceedings is disclosed, or it appears that the amount is manifestly excessive or inadequate: Kellett v Buchanan [1935] SASR 144 at 146, where the court also noted that appeals on questions of this kind are not encouraged and will not be countenanced unless some substantial injustice is disclosed. The decision accords with the well-established principle that a trial judge has a wide discretion on the question of costs with which an appellant court ought not generally to interfere unless the exercise of discretion was so unreasonable or so unjust as to require the appellate court to substitute its own discretion: Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 176. The observations made by the Full Court some 60 years ago have as much relevance today as they did then. Appeals in respect of awards of costs made in courts of summary jurisdiction will not be encouraged by this Court. This Court will only interfere where some substantial injustice is disclosed or the award is manifestly excessive or manifestly inadequate.”
Those principles have been referred to and applied in subsequent cases. For example, Moore-McQuillan v Police (Debelle J, 27 November 1998, unreported); Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454 at 457-460; Worth v Police [1998] SASC 6674.
The general principle to be applied when exercising the discretion pursuant to s 189(1) is that a successful party is entitled to its costs.
In my opinion, the order of Hayne J in Joosse v ASIC, upon which the appellant relies, does not evidence a different principle which is applicable in this case. The order of Hayne J appears to me to be referable to the position with respect to costs in criminal proceedings involving indictable offences, a position which is quite different from that under s 189(1) of the Summary Procedure Act.
Furthermore, the decision with respect to costs in Joosse v ASIC was a decision involving the exercise of a discretion. It ought not, in my opinion, be understood as altering the position with respect to costs in proceedings of this kind as established by the High Court in Latoudis v Casey (1990) 170 CLR 534.
The Magistrate in the present case awarded the successful complainant his costs. It was within his discretion to do so. The appellant has not established any ground for interference with the exercise of the discretion to award costs.
The second submission went to the amount of costs which were awarded. The submission is that the respondent should have been awarded part only of his costs because he was unsuccessful on some counts and others were withdrawn. The same principles apply with respect to appellate interference with the exercise of the discretion as to costs orders in relation to this submission.
Furthermore, it is well established that lack of success on some issues does not necessarily result in a reduced award of costs.
The argument of the appellant assumes that the Magistrate made no allowance for the lack of success of the complainant on several of the counts. It does not seem to me that that assumption is valid. It is apparent from the transcript, and from what I have been told today, that there was argument on the question of costs before the Magistrate. It is apparent that the lack of success of the complainant on some of the counts was pressed before the Magistrate. In those circumstances, I am not willing to conclude that this consideration was not taken into account by the Magistrate.
In the present case there were nine counts withdrawn at the commencement of the hearing. Each of those was identical apart from the 14 day period to which it related. Having regard to that fact and to the way in which the trial was conducted, it is unlikely that the respondent incurred any significant costs in relation to those counts which would not have been incurred had they not been included in the original complaint.
The appellant pointed to the extra work which would have been involved in preparing the complaint, which is a long document, as well as the extra photocopying and incidental expenses which were incurred as a result of the document being longer than it need otherwise have been. In my opinion, those costs are relatively minor in the overall scheme of things and not such as to indicate that there was some error in the exercise of the discretion.
The Magistrate dismissed eight counts. Again, it does not seem to me that any significant time was spent on those charges as distinct from those upon which the complaint succeeded. The appellant did not point to additional time having been spent on those charges. By “additional time” I mean time which would not have been required in relation to the counts upon which the complainant did succeed. I do not consider, therefore, that there was any error by the Magistrate in failing to award costs on a partial or pro rata basis.
Finally, it is to be noted that the Magistrate awarded costs by way of a lump sum. Although the amounts awarded are large when considered against the seriousness of the offences and the fines imposed, there are other factors to be remembered.
This matter came before the Magistrates Court on five occasions. Four of those occasions occurred after the appellant had been served. There was at least one occasion, and I think probably two occasions, when the matter was adjourned at the request of the appellant. On one of those occasions, 10 December 2003, the respondent was present with counsel and witnesses.
A counsel fee of $100 was fixed for counsel on that occasion, but the application for the costs of the witnesses was adjourned. The prosecution costs, other than counsel costs in connection with that adjournment, were not addressed by the order made on 10 December 2003.
In relation to the quantum of the counsel fee awarded, I note that the daily trial fee for junior counsel in the Guide to Counsel Fees issued by the Masters of this Court has, since 30 July 2001, been in the range $910-$1890. That, of course, is a guide only; what is more, it is a guide only in relation to proceedings in this Court and not in the Magistrates Court.
However, a comparison of the fee of $800 awarded by the Magistrate for counsel with that scale does not support the conclusion that the amount allowed by the Magistrate by way of counsel fee was excessive.
The Magistrate allowed $2000 for prosecution costs. That does seem a large amount.
I take into account that this matter was not what might be called the “usual” Dog and Cat Management Act prosecution. The appellant has raised an issue about the validity of the Act. The point raised by the appellant led the Magistrate to order that pursuant to s 78B of the Judiciary Act 1903 notices be instituted. That was done by the respondent’s solicitors.
It does not seem to me to be inappropriate for the respondent to have retained solicitors and counsel in connection with this prosecution, having regard to that fact and to the nature of the contest on the hearing of the prosecution.
When one has regard to the work involved in drawing the complaint, arranging service, arranging attendance of witnesses, proofing witnesses, attendance during the hearing, issuing of s 78B notices, and the fact that this matter came on before the Magistrates Court on five occasions, I do not consider that the sum of $2000 for prosecution costs is shown to be excessive.
Therefore, I dismiss the appeal.
I order the appellant to pay the respondent’s costs. I fix those costs, inclusive of both solicitor and counsel fees, in the sum of $1800.