Koenig v Fraser

[2000] WASCA 262

KOENIG -v- FRASER [2000] WASCA 262

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 262
Case No:	SJA:1122/2000	Heard:	29 AUGUST 2000
Coram:	SCOTT J	Delivered:	15/09/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
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Parties:	ALBRECHT ADOLF HEINRICH KOENIG BRIAN DOUGLAS FRASER
Catchwords:	Costs General rule Costs follow the event Departing from the general rules Recovery of costs Appeals as to costs Magistrate declined to award costs for legal expenses associated with prosecution of complaint Matter entirely for Magistrate's discretion Justices Act 1902, s 151 Magistrate made no error Costs to be considered in totality with fine imposed No miscarriage of justice
Legislation:	Electricity (Licensing) Regulations 1991, reg 50(1), reg 50(4) and reg 65 Justices Act (1902), s 19a(1)(b), s 151
Case References:	Flatow v Mullins, unreported; SCt of WA (Smith J); Library No 5207; 1 February 1984 Thomas v Schwager, unreported; SCT of WA (Parker J); Library No 970719; 18 December 1997 Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 Hamdorf v Riddle [1971] SASR 398 Irving v Gagliardi (No 2) (1895) 6 QLJ 200 Latoudis v Casey (1990) 170 CLR 534 Morgan v Biddle, unreported; SCt of WA (Wallace J); Library No 2845; 11 March 1980 Will of F B Gilbert (Dec) (1946) SR (NSW) 318

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KOENIG -v- FRASER [2000] WASCA 262 CORAM : SCOTT J HEARD : 29 AUGUST 2000 DELIVERED : 15 SEPTEMBER 2000 FILE NO/S : SJA 1122 of 2000 BETWEEN : ALBRECHT ADOLF HEINRICH KOENIG

Appellant

AND

BRIAN DOUGLAS FRASER
Respondent

Catchwords:

Costs - General rule - Costs follow the event - Departing from the general rules - Recovery of costs - Appeals as to costs - Magistrate declined to award costs for legal expenses associated with prosecution of complaint - Matter entirely for Magistrate's discretion - Justices Act 1902, s 151 - Magistrate made no error - Costs to be considered in totality with fine imposed - No miscarriage of justice

Legislation:

Electricity (Licensing) Regulations 1991, reg 50(1), reg 50(4) and reg 65

Justices Act (1902), s 19a(1)(b), s 151

Result:

Leave to appeal granted

Appeal dismissed


(Page 2)

Representation:

Counsel:

Appellant : Mr F Sunderland
Respondent : Mr J E Hebron

Solicitors:

Appellant : State Crown Solicitor
Respondent : Jackson McDonald

Case(s) referred to in judgment(s):

Flatow v Mullins, unreported; SCt of WA (Smith J); Library No 5207; 1 February 1984
Thomas v Schwager, unreported; SCT of WA (Parker J); Library No 970719; 18 December 1997

Case(s) also cited:

Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Hamdorf v Riddle [1971] SASR 398
Irving v Gagliardi (No 2) (1895) 6 QLJ 200
Latoudis v Casey (1990) 170 CLR 534
Morgan v Biddle, unreported; SCt of WA (Wallace J); Library No 2845; 11 March 1980
Will of F B Gilbert (Dec) (1946) SR (NSW) 318

(Page 3)

1 SCOTT J: This is an application for leave to appeal against an order made by a Magistrate at the Court of Petty Sessions in Kalgoorlie. The application for leave was heard with the appeal.

2 The respondent was charged under reg 50(1) of the Electricity (Licensing) Regulations 1991 ("the Electricity Regulations") with failing to effectively supervise electrical work carried out by Jeremy Wells, a person not licensed to carry out the electrical work in question without supervision, contrary to reg 50(1), reg 50(4) and reg 65 of the Electricity Regulations.

3 On 30 June 2000, the respondent pleaded guilty to the charge and the learned Magistrate imposed a fine of $500. In addition, the Magistrate awarded costs to the applicant in the amount of $57.50, that being the out of pocket costs associated with the issuing of the complaint. The Magistrate declined to make an award for costs in respect of the solicitor and counsel fees claimed in relation to the complaint.

4 The applicant now seeks to appeal that ruling on the ground that:

"the learned Magistrate erred in failing to properly exercise her discretion under s 151 of the Justices Act 1902, in that she failed to award costs for the legal expenses associated with the prosecution of the Complaint No KA1523/00."

5 Further, the applicant seeks within the following orders that:

"(a) The appeal be allowed.

(b) The decision of the learned Magistrate with respect to costs made on Complaint No KA1523/00 be set aside in lieu thereof, the applicant be awarded such costs as this honourable Court considers just and reasonable.

(c) The respondent pay the applicant's costs of the appeal to be taxed."

6 In order to assess the merits of the appeal it is necessary to examine the Magistrate's comments when considering the question of penalty and costs. Counsel for the applicant submitted:

"We've also been instructed to ask for costs. The costs of the Crown and ourself total nine hundred and sixty dollars.

SM: Where do they all come from?

(Page 4)

LAW: We've got cost of two hundred and thirty dollars for the Crown and our own costs are for two appearances, the first appearance was the second of June when it was adjourned at the defence's request.

SM: Well I presume the Crown Solicitor's Office or whatever are briefing you and have come to some arrangements.

LAW: Yes but we have been instructed to ask."

7 It is apparent from the transcript that the Magistrate was clearly mindful of the applicant's position. After some further discussions on that point the defence counsel made the following submission:

"If I can just make a comment in relation to costs your Worship, I would say that we would not have any objection to paying the costs of the disbursement fee for issuing the summons of $57.70 it would be my submission that that's the appropriate measure of costs in this matter. This is only the second return date, the matter was remanded on the first return date for legal advice and Mr Fraser has pleaded guilty at the very first available opportunity."

8 It is clear, from reading the transcript of the hearing, that the Magistrate took into account the submissions of both the applicant and the respondent on the question of costs. It was a matter entirely for her Worship's discretion to award costs in the manner in which she ultimately did. In sentencing, her Worship stated:

"In relation to the matter I indent to impose a fine of $500, I will make an order for costs of the sum of $57.70 which is the cost of the complaint itself and that will bring the matter to an end Mr Fraser."

9 I am of the opinion that the Magistrate made no error in awarding the costs that she did. Her Worship had heard submissions from both sides on that point and she made a ruling which was open for her to make. Section 151 of the Justices Act 1902 provides that a Magistrate has discretionary power to award to the complainant such costs as to the Magistrate seems just and reasonable. Her Worship was of the view that, in this case, an award of costs for professional fees was not appropriate.
(Page 5)

10 The question of costs must always be considered in context. The learned Magistrate had determined to impose a fine and the application for costs fell for consideration in the overall context of the particular case bearing in mind the fiscal impact in its totality on the respondent. Her Worship was mindful of these considerations.

11 To have ordered the payment of costs sought by the applicant, would have resulted in a global financial burden on the respondent which was outside, and in this case, well outside, the appropriate imposition of fine and costs: Thomas v Schwager, unreported; SCT of WA (Parker J); Library No 970719; 18 December 1997 at 16. See also the judgment of Flatow v Mullins, unreported; SCt of WA (Smith J); Library No 5207; 1 February 1984, wherein his Honour states at 3 :

"But it is equally clear on the authorities that a sentencer should always have regard to the totality of the financial burden suffered by the offender as the result of the offence: see Thomas Principles of Sentencing 2nd Edition at p 340. Where the combined total of an appropriate fine and an order to make payment towards the costs of the prosecution constitutes a penalty which is totally out of proportion to the offence it is appropriate to scale down either the fine or the amount of the order to pay prosecution costs.

The circumstances of the present offence were serious but the maximum fine to which the respondent was exposed was $100. The order for costs sought by the appellant almost equated that amount and it is clear that the Magistrate chose to scale down the amount of the fine in order that the total financial burden would not constitute a penalty out of proportion to the offence."

12 In this case, whilst it may be said that a lower fine and a higher costs award could have been appropriate, I am not persuaded that the costs order reveals a miscarriage of justice when the case is looked at overall: Justices Act 1902, s 199(1)(b).

13 I would grant leave to appeal but dismiss the appeal.