Ferguson v City of Charles Sturt No. Scgrg-99-805 Judgment No. S388

[1999] SASC 388

FERGUSON v CITY OF CHARLES STURT

[1999] SASC 388

Magistrates Appeal

1 WICKS J (ex tempore)     This is an application for an extension of time for leave to appeal against the quantum of costs ordered by a Magistrate to be paid by the City of Charles Sturt ("the City") to the respondent in the action, Richard Ferguson ("Mr Ferguson").
2 On 21 October 1998 the City of Charles Sturt made an application to the Magistrates Court sitting at Port Adelaide for an order under the Dog & Cat Management Act 1995 claiming that a dog owned by Mr Ferguson was unduly dangerous and ought to be disposed of.  The City sought an order that the dog be removed from Unit 1/33 Wood Avenue, Brompton and not returned to that address. 
3 After a hearing before a Magistrate, judgment was delivered in favour of Mr Ferguson.  Mr Ferguson sought an order for costs.  An order was made and the amount of costs was fixed by the Magistrate at $900. 
4 Mr Ferguson complained that the learned Magistrate did not order a sufficient sum for his costs in the matter and applied for an extension of time within which to appeal to this Court to have the amount increased.  Leave to appeal was sought after he received an account from his solicitors in connection with the case for an amount which was substantially in excess ordered by the Magistrate. 
5 Under the applicable rules of this Court, an appeal from the Magistrates Court in its criminal jurisdiction must be commenced by filing a Notice of Appeal within 14 days from the date of the order complained of.  This was not done here so that an extension of time was necessary.  It may be that in addition to an extension of time, Mr Ferguson also may require leave to appeal as the appeal in question is concerned only with the question of costs. 
6 Section 59 of the Dog & Cat Management Act 1995 provides as follows:
"If a dog is shown to be unduly dangerous, the Magistrates Court may, on application, make an order in relation to the dog that a court could have made if the proceedings had been criminal proceedings under this Act (and the order takes effect as if it had been made in such proceedings)."

7 Rule 42A.01 of the Magistrates Court Rules provides that an application under s 59 of the Dog & Cat Management Act must be made in the criminal division of the court.  
8 Costs in the criminal division are regulated by s 189 of the Summary Procedure Act 1921.  A very wide discretion is given to a Magistrate when awarding costs as appears from s 189(1) which provides:
"Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit."

9 This case appears to have been dealt with on affidavit and, as far as I can ascertain, oral evidence was not adduced. 
10 The learned Magistrate hearing the matter had the benefit of submissions from counsel on both sides on the question of costs.  The Magistrate was also familiar with the amount of time occupied by the hearing and would have some idea of the time and effort put in by the parties in preparing their cases for hearing.  In view of the broad discretion given to the Magistrate by s 189 of the Summary Procedure Act 1921, it would not be right for an appellate court to interfere in the matter in the present circumstances. 
11 At the bottom of Mr Ferguson's complaint, it appears to be the fact that his solicitors charged him substantially more than the learned Magistrate ordered the City of Charles Sturt to pay.  The amount that a Magistrate orders to be paid is a matter for his discretion.  The amount which a client is required to pay his own solicitor is a matter of arrangement between them and is not a matter which the court should be concerned with.  In the circumstances, the learned Magistrate acted within his discretion and does not appear to have done anything which would require the intervention of this Court. 
12 The extension of time sought by Mr Ferguson is therefore refused.