GRAHAM v Police - [2016] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GRAHAM v POLICE
[2016] SASC 82
Judgment of The Honourable Justice Stanley
10 June 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
This is an appeal against a costs order made by a magistrate. The appellant was charged with aggravated recklessly causing harm (count 1), aggravated assault (counts 2 and 3) and breaching an intervention order (counts 4, 5, and 6).
The appellant pleaded not guilty to counts 1 to 3. He pleaded guilty to counts 4 to 6. On 27 January 2016 the trial proceeded in relation to counts 1 to 3. The prosecution was not in a position to call the complainant and she did not give evidence. The prosecution tendered some medical notes and some police officers’ statements. The magistrate found no case to answer and dismissed the charges in counts 1 to 3. The appellant’s counsel applied for costs in the amount of $3,630 inclusive of GST. The learned magistrate ordered that the respondent pay the appellant his costs in the amount of $2,000 inclusive of GST.
The appellant appeals on the basis that the magistrate erred in not awarding him full scale costs in the amount of $3,630 inclusive of GST.
Held:
1. Section 189 of the Summary Procedure Act 1921 (SA) confers a discretion not only in relation to the making of an award of costs but also in relation to fixing the amount of costs. 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 (at [15]).
2. The appellant has failed to demonstrate any basis which would justify this Court interfering in the exercise of the magistrate’s discretion as to the amount of the award of costs. The magistrate’s discretion has not been shown to have miscarried. The amount awarded by way of costs has not been shown to be manifestly inadequate (at [22]).
3. Appeal dismissed (at [23]).
Summary Procedure Act 1921 (SA) s 189; Magistrates Court Rules 1992 (SA) s 51, referred to.
Schloithe v Police [2011] SASC 156; House v The King (1936) 55 CLR 499; SA Police v Leonard (1995) 64 SASR 390; Curnow v Police (2008) 100 SASR 290; Ling v Police (1996) 90 A Crim R 376; Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Curnow v Police (2008) 100 SASR 290; Konieczka v Police [2006] SASC 288; R v Kreutzer [2013] SASCFC 130; Jones v Police [2009] SASC 137, considered.

GRAHAM v POLICE
[2016] SASC 82
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against a costs order made by a magistrate. The appellant was charged on Information with:
Count 1: Recklessly cause harm (aggravated);
Count 2: Assault (aggravated);
Count 3: Assault (aggravated);
Count 4: Breaching an intervention order;
Count 5: Breaching an intervention order; and
Count 6: Breaching an intervention order.
The appellant pleaded not guilty to counts 1 to 3. He pleaded guilty to counts 4 to 6. On 27 January 2016 the trial proceeded in relation to counts 1 to 3. The prosecution was not in a position to call the complainant and she did not give evidence. The prosecution tendered some medical notes and some police officers’ statements. The magistrate found no case to answer and dismissed the charges in counts 1 to 3. The appellant’s counsel applied for costs in the amount of $3,630 inclusive of GST. The learned magistrate ordered that the respondent pay the appellant his costs in the amount of $2,000 inclusive of GST.
The appellant appeals on the basis that the magistrate erred in not awarding him full scale costs in the amount of $3,630.
Costs
Section 189 of the Summary Procedure Act 1921 (SA) provides:
Subject to sections 189A to 189D (inclusive), the Court may award such costs for or against a party to proceedings as the Court thinks fit.
Section 189A to s 189D are not relevant to this matter.
Section 189 confers a broad discretion on the Magistrates Court in relation to costs orders.
This broad discretion is not confined by the operation of r 51 of the Magistrates Court Rules 1992 (SA) [1] which provides:
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.
[1] Schloithe v Police [2011] SASC 156 at [10] – [11].
In Schloithe v Police[2] White J said:[3]
[S]ection 189(1) vests a wide and general discretion with respect to costs in a Magistrate. That general discretion is not qualified in any way which is material to the present appeal by any of the other provisions in s 189. The discretion is, of course, to be exercised in accordance with the law and in accordance with settled principles regarding an award of costs, including the principle that ordinarily a successful party is entitled to an award of costs in his or her favour. In the exercise of that general discretion a Magistrate may, when appropriate, award a successful defendant, some or all of his or her costs, or make no order as to costs. [4]
[2] [2011] SASC 156.
[3] [2011] SASC 156 at [12].
[4] At the time of Schloithe v Police [2011] SASC 156 what is now s 189A to s 189D were s 189(2) to s 189(8).
Nature of appeal
An appeal against a decision on costs is an appeal against an exercise of a general discretion. On such appeals an appellate court intervenes only in the circumstances identified in House v The King.[5] The court will not intervene on appeal against a decision on costs unless the appellant has identified some error in the exercise of the discretion, for example, by the magistrate having failed to take into account a relevant matter or having taken into account an irrelevant matter, or where the exercise of the discretion is so unreasonable or unjust as to require appellate intervention.
[5] [1936] HCA 40, (1936) 55 CLR 499 at 504 – 505.
In SA Police v Leonard[6] Debelle J explained the principle in the following terms:[7]
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.
[6] (1995) 64 SASR 390.
[7] (1995) 64 SASR 390 at 394.
Reasons of the magistrate
The magistrate rejected the prosecution’s submission that the appellant was not entitled to any costs as he had pleaded guilty to three of the six counts before the court. He considered some costs were appropriate as the appellant needed to prepare three counts for trial. However, he considered that the amount of the claim for costs was problematic given that this was a matter that would not have taken a lot to prepare due to the likelihood that the complainant was not going to give evidence. The magistrate observed that in these circumstances the prosecution was never going to be able to prove its case. However the appellant was entitled to some costs. Exercising his discretion in relation to the amount of those costs in a broadaxe manner, he ordered the respondent to pay the appellant’s costs fixed in the sum of $2,000 inclusive of GST. The magistrate made clear that sum represented a reduced figure given the nature of what he considered to be the appropriate preparation for what was a relatively straightforward matter.
Submissions on appeal
Mr Lang, counsel for the appellant, submits that the sum sought for costs by the appellant in the amount of $3,630 inclusive of GST is in accordance with the Magistrates Court criminal scale of costs in schedule 1 to the Magistrates Court Rules. He submits that the scale prescribes a base rate for costs which is intended to reflect an amount for party/party costs. The significant reduction in the award of costs made by the magistrate amounts, to the extent reduced, a refusal of costs. There was nothing unreasonable in the conduct of the appellant in the proceedings which would warrant depriving him, as the successful party, from his entitlement to costs. Accordingly, the exercise of the magistrate’s discretion in relation costs miscarried.
Ms Sanders, counsel for the respondent, submits that s 189 of the Magistrates Court Act confers a wide and unfettered discretion in awarding costs. She submits the magistrate was not bound to assess costs in accordance with the scale found in schedule 1. The magistrate was entitled to depart from the scale where appropriate.
Consideration
At issue on the appeal is whether the magistrate erred in the exercise of his discretion by failing to award the appellant all of his costs in accordance with the scale in schedule 1 to the Magistrates Court Rules. Section 189 confers a wide and general discretion with respect to costs. That discretion is not confined by the operation of rule 51 generally or rule 51.03 specifically.[8] The discretion must be exercised judicially.
[8] Curnow v Police [2008] SASC 84 at [13]-[14], (2008) 100 SASR 290 at 294-295.
Section 189 confers a discretion not only in relation to the making of an award of costs but also in relation to fixing the amount of costs.[9] As was observed in Curnow v Police[10] by Debelle J, the prescription of a scale of costs is a means frequently adopted for the purpose of assessing what is reasonable compensation for costs incurred but it is not a fetter on the exercise of the discretion as to costs. A magistrate may depart from the scale where it is appropriate to do so. Whether it is appropriate to do so will turn on such matters as whether the proceedings were complex, the nature of the issues, the length of the hearing and the conduct of the parties. While in Konieczka v Police,[11] Perry J, with whom Nyland and Sulan JJ agreed, said that scale costs are intended to be the norm and departure from them must be based on something which clearly distinguishes the case from the norm,[12] he qualified this proposition by observing that the amount to be allowed by way of costs is entirely a matter of 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.[13] In Curnow, Debelle J noted that following Konieczka it is clear that a magistrate is free to order that costs be assessed on some basis other than the scale and the discretion vested in the court by s 189 is at large.
[9] Ling v Police (1996) 90 A Crim R 376 at 384; Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454 at 456.
[10] [2008] SASC 84 at [15]-[16], (2008) 100 SASR 290 at 295.
[11] [2006] SASC 288.
[12] [2006] SASC 288 at [28].
[13] [2006] SASC 288 at [41].
It is apparent that in denying the appellant his claim to recover costs in the sum of $3,630 inclusive of GST, the magistrate considered that the amount claimed was excessive given the work required to defend three counts in circumstances where it was likely that the complainant was not going to give evidence. He considered that an appropriate sum for the work required was $2,000 inclusive of GST.
The work required to prepare the matter for trial and to conduct what was, and was always likely to be, a short trial, was plainly a relevant consideration. In my view there was no irrelevant consideration taken into account by the magistrate in the exercise of his discretion.
Accordingly, there is no process error[14] demonstrated. Neither in my view has the appellant demonstrated any outcome error.
[14] R v Kreutzer [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
The appellant has not persuaded me that the amount awarded is manifestly inadequate. There is little if any material before me which permits me to form a view as to the adequacy or otherwise of the quantum of the costs ordered by the magistrate. I consider the magistrate was in a better position than me to judge what is an appropriate award of costs in the Magistrates Court for the work undertaken by the appellant. I cannot say that the sum awarded is outside the available range of costs that could be awarded for this matter. That the amount awarded is less than the scale allows does not ipso facto make the award manifestly inadequate. It is the magistrate who hears the case who is in the best position to determine what level of costs should be awarded.[15]
[15] Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Jones v Police [2009] SASC 137 at [65].
In addition, it is not irrelevant that the appellant pleaded guilty to three of the charges before the Court. As was observed in Jones v Police[16] by Gray J it would be artificial to treat the counts as though they were separate matters calling for separate costs orders.
[16] [2009] SASC 137 at [66].
In the circumstances, I am not satisfied that the amount awarded by way of costs was manifestly inadequate.
Accordingly, the appellant has failed to demonstrate any basis which would justify this Court interfering in the exercise of the magistrate’s discretion as to the amount of the award of costs. The magistrate’s discretion has not been shown to have miscarried. The amount awarded by way of costs has not been shown to be manifestly inadequate.
Conclusion
I would dismiss the appeal.