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…

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.

Keep reading for free

Create a free CaseChat account to read GRAHAM v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] SASC 82
Decision Date: 10 June 2016

CaseChat Overview and Summary

In Graham v Police, the appellant, Mr Graham, challenged the decision of a magistrate to award a sum of $2,000 inclusive of GST for costs, rather than the full sum of $3,630 inclusive of GST which Mr Graham claimed. The appeal was heard in the Supreme Court of South Australia. The appeal raised issues regarding the exercise of discretion by the magistrate in awarding costs, and whether the magistrate had erred in not awarding the full amount of costs claimed by Mr Graham. Specifically, the appeal questioned whether the magistrate should have adhered to the scale of costs outlined in the Magistrates Court Rules, or whether the magistrate had the discretion to award a lesser amount.

The court considered whether the magistrate had misapplied his discretion in awarding the costs. The court noted that section 189 of the Magistrates Court Act confers a wide and general discretion with respect to costs. The court emphasised that this discretion is not confined by the operation of rule 51 generally or rule 51.03 specifically. The court observed that the magistrate had exercised his discretion judicially, taking into account the factors relevant to the case, including the complexity of the case, the nature of the issues, the length of the hearing and the conduct of the parties. The court noted that the magistrate had considered that the amount claimed by Mr Graham 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. The court held that the magistrate had not misapplied his discretion in awarding the costs.

The court dismissed the appeal, finding that the magistrate had not erred in the exercise of his discretion by failing to award Mr Graham all of his costs in accordance with the scale in schedule 1 to the Magistrates Court Rules. The court held that the magistrate was entitled to depart from the scale where it was appropriate to do so, and that the magistrate had exercised his discretion judicially in arriving at the amount awarded. The court held that the amount awarded by way of costs had not been shown to be manifestly inadequate.

The appeal was dismissed. The costs awarded by the magistrate were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.