Horst Kronen v SA Police No. 4269 Judgment No. SCGRG 93/1846 Number of Pages 3 Costs Appeal as to Costs

[1993] SASC 4269

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Costs - appeal as to costs - Restraint proceedings - background of ill-feeling between the parties - complaint dismissed - evidence of appellant preferred but no order as to costs - no evidence of misconduct by appellant - appellant entitled to costs - appeal allowed. Latoudis v Casey (1990) 97 ALR
45, applied.

HRNG ADELAIDE, 4 November 1993 #DATE 17:11:1993
Counsel for appellant:     Mr B J Tremaine
Solicitors for appellant:    B J Tremaine
Counsel for respondent:     Ms J F Lee-Justine
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 NYLAND J The appellant was the defendant to an application for a summary protection order or what is commonly known as a restraint order. The complaint alleged that he had "on the 31st July, 1993 at Mount Barker in the State of South Australia behaved in a provocative manner which behaviour was such as was likely to lead to a breach of the peace, and is unless restrained likely again to behave in the same or a similar manner. Section 99 of the Summary Procedures Act, 1921". On the 3rd day of August 1993 an interim order was made on an ex parte basis requiring the appellant to keep the peace towards Adrian David Wastell. That order was served upon the appellant on the 10th day of August 1993. On the 19th August 1993 the appellant wrote a letter to the police in which he referred to the statements made by Wastell in support of the complaint and refuting the allegations contained therein. It was agreed that that letter was delivered to the police on the 23rd August 1993. 2. The matter eventually came on for hearing on the 20th September 1993. At the commencement of the hearing the original complaint was amended to allege events between 26 and 31 July rather than just 31st July 1993 as appeared in the original complaint. Nothing however turns on that amendment. The complainant Mr Wastell, the appellant and a Miss Falland gave evidence. At the conclusion of the hearing the learned Special Magistrate dismissed the complaint and the interim summary protection order lapsed. In making the order dismissing the complaint the learned Special Magistrate said:
    "There is corroboration for Kronen's whereabouts on both
    occasions of the windows being broken. Neither Kronen nor
    Falland were discredited during cross examination. There is
    background, to put it mildly, of ill feeling and litigation
    between all of these people and this application must be looked
    at in that context, given that the applicant has usually been on
    the receiving end. I also have to take into account the
    discrepancies, or apparent discrepancies, between his evidence
    and his statements to police. The explanation Kronen has given
    for being in the car park on the 26 July is consistent with
    innocence. Whilst I have suspicions about this matter, they do
    not, or they are not sufficient to satisfy the required burden
    of proof. I might say that I find it absolutely bewildering
    that three obviously intelligent people cannot either get on, or
    alternatively have nothing to do with each other, but be that as
it may, the charge is dismissed." 3. He then made no order as to costs. The appellant now appeals against that order. The appellant alleges that, as the magistrate had accepted the defence case and as the appellant had done nothing to bring about or prolong the proceedings, it was unjust and unreasonable not to indemnify him against the expense which had been put by reason of the legal proceedings. In Latoudis v Casey (1990) 97 ALR 45 the High Court considered what, if any, were the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which had terminated in favour of the defendant. Mason CJ said, at p.50:
    "It will be seen from what I have already said that, in
    exercising its discretion to award or refuse costs, a court
    should look at the matter primarily from the perspective of the
    defendant. To do so conforms to fundamental principle. If one
    thing is clear in the realm of costs, it is that, in criminal as
    well as civil proceedings, costs are not awarded by way of
    punishment of the unsuccessful party. They are compensatory in
    the sense that they are awarded to indemnify the successful
    party against the expense to which he or she has been put by
    reason of the legal proceedings: Cilli v Abbott (1981) 53 FLR
    108 at 111. Most of the arguments which seek to counter an
    award of costs against an informant fail to recognise this
    principle and treat an order for costs against an informant as
    if it amounted to the imposition of a penalty or punishment.
    But these arguments only have force if costs are awarded by
    reason of misconduct or default on the part of the prosecutor.
    Once the principle is established that costs are generally
    awarded by way of indemnity to a successful defendant, the
    making of an order for costs against a prosecutor is no more a
    mark of disapproval of the prosecution than the dismissal of the
    proceedings." 4. He went on to say at p.51:
    "Nevertheless, I am persuaded that, in ordinary
    circumstances, an order for costs should be made in favour of a
    successful defendant. However, there will be cases in which,
    when regard is had to the particular circumstances, it would not
    be just and reasonable to order costs against the prosecutor or
    to order payment of all the defendant's costs. If, for example,
    the defendant, by his or her conduct after the events
    constituting the commission of the alleged offence, brought the
    prosecution upon himself or herself, then it would not be just
    and reasonable to award costs against the prosecutor." 5. Although the learned Special Magistrate referred to a background of ill-feeling and litigation between the parties the evidence does not suggest prior misconduct on the part of the appellant which would justify a refusal for an order for costs. The evidence indicated that there had been an assault charge proved against Mr Wastell and some civil proceedings relating to property damage in which the appellant had been successful against him. The Special Magistrate clearly had misgivings about the reliability of Wastell's evidence, given that he referred to discrepancies between his evidence and his statements to the police, but he found that neither the appellant nor his witness Falland were discredited during cross-examination. Taking all these matters into account, in my view this was a case in which the learned Special Magistrate should have exercised his discretion in favour of the appellant, as the successful defendant, and made an order for costs in his favour. 6. I consider that the appeal should be allowed and an order made giving the appellant the costs of the proceedings.