Konieczka v Police - [2006] SASC 288

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KONIECZKA v POLICE
[2006] SASC 288
Reasons for Ruling of The Full Court
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Sulan)
18 September 2006
PROCEDURE - COSTS - APPEALS AS TO COSTS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS PRACTICE CASES
Application for leave to appeal against order of a single judge allowing in part an appeal and disallowing a cross-appeal in relation to an order for costs made after a summary trial in the Magistrates Court - after the dismissal of a complaint following a one-day trial in the Magistrates Court, the applicant applied for costs on an indemnity basis in the amount of $17,900 - the magistrate fixed costs as $12,000 - on appeal, a single judge of this court reduced costs to the amount of $7,000 - consideration of jurisdiction to award indemnity costs following criminal matter - no error shown in reasons of appeal judge - no question of principle worthy of consideration by the Full Court - application dismissed.
Supreme Court Act 1935 s 50(1a)(c)(i); Supreme Court Rules 1987 r 94.03(c)(ii); Summary Procedure Act 1921 s 189(1); Magistrates Court Rules 1992 r 51, referred to.

KONIECZKA v POLICE
[2006] SASC 288
Full Court: Perry, Nyland and Sulan JJ

PERRY J: This was an application for leave to appeal to the Full Court from orders made by a single judge (“the appeal judge”), in which he allowed in part an appeal from the Magistrates Court with respect to an order made in that court as to costs, and dismissed a cross-appeal.
The application for leave was brought pursuant to s 50(1a)(c)(i) of the Supreme Court Act 1935. The application was made initially to the appeal judge, who refused leave.
An application in writing was then made to the Full Court, which made an order that it be listed for ex parte oral argument pursuant to SCR r 94.03(c)(ii).
On 7 September 2006, after hearing argument by counsel for the applicant, the court dismissed the application. It reserved the right to publish reasons.
The applicant for leave to appeal was charged on an information filed in the Magistrates Court sitting at Adelaide with having on 3 May 2004 at O’Halloran Hill assaulted his wife, Danuta Konieczka.
Following a one-day hearing, the information was dismissed.
The prosecution case rested on the evidence of the alleged victim and her niece who was at the relevant time visiting from Germany. They were said to have been present in the house occupied by the respondent and the alleged victim at the time when the assault is alleged to have taken place.
At the time, the applicant and his wife were involved in divorce proceedings.
Essentially, the trial magistrate found in his ex tempore reasons that the evidence of the applicant’s wife and of her niece as to the alleged assault was a deliberate fabrication which was in turn the product of a desire to have the applicant leave the matrimonial home. The magistrate accepted without any hesitation the denials of the applicant.
The applicant applied for costs on an “indemnity” basis. Through his counsel he sought a total of $17,990, which he claimed was the total of the fees charged by his solicitor, including counsel fees. One might be pardoned for thinking that this was an extraordinarily high amount for costs in a case involving a one-day trial in a court of summary jurisdiction, even allowing for the preliminaries.
Be that as it may, after hearing argument on the question of costs, which included the tender of some accounts which gave some detail but not full particulars of the services for which the fees were charged, the magistrate acceded to the argument that costs beyond the party and party scale be awarded. But he declined to allow the amount of $17,900 claimed. Instead, he ordered that the informant contribute $12,000 towards the defendant’s costs.
In the initial appeal to this Court, the appellant (the informant) appealed on the basis that the amount awarded was too high.
In a cross-appeal, the present applicant claimed that the costs awarded were too low. The applicant contended that costs should have been assessed in the full amount of his claim.
The appeal judge dismissed the cross-appeal, but allowed the appeal in part and reduced the quantum of the costs awarded in favour of the applicant from $12,000 to $7,000.
It was for leave to appeal from that order that the present application was brought.
The jurisdiction to award costs in summary proceedings is provided for in s 189(1) of the Summary Procedure Act 1921, which provides:
(1)Subject to this section, the court may award such costs for or against a party to proceedings as the court thinks fit.
Rule 51 of the Magistrates Court Rules 1992 provides:
51.01Subject 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.
51.02For 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.
51.03Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
The First Schedule provides a costs scale setting out lump sums for the various stages of preparation for trial and for counsel fees.
If costs had been awarded according to the First Schedule, the amount would have been very much less than what was awarded. For example, the amount of counsel fees actually billed was $9,603. $12,000 represents about 70 per cent of the total amount in fact charged to the respondent. On that basis, within the amount of $12,000, approximately $6,700 should be attributed to counsel fees.
However, under the First Schedule, the counsel fees would have been $2,660.
Relevant legal authorities which support the view that, generally speaking, a successful defendant is entitled to an award of costs, are referred to in the reasons of the appeal judge. There is no reason to set them out again.
There is no doubt that in a proper case the jurisdiction as to costs extends to the making of a costs order on the basis of an indemnity or the award of solicitor and own client costs. It is also open to the court to award something between First Schedule costs and an indemnity. The discretion as to costs is at large, although it must not be exercised arbitrarily. Relevant factors must always be taken into account.
In an affidavit of Ms Rosewarne, the police prosecutor who appeared for the informant, she states that after the order of dismissal of the information was made, the magistrate adjourned the matter to another day when separate arguments were advanced by the parties on the issue of costs.
She states that Mr Caldicott made submissions to the effect that the defendant adamantly denied the charges and had disclosed his case to the prosecution from the outset.
Ms Rosewarne submitted that the prosecution believed that “there was a reasonable prospect of conviction and that it was in the public’s interest to proceed with the charge”. She states that she drew the magistrate’s attention to the various affidavits and statements upon the basis of which the decision was made to prosecute. She submitted that the matter was not a complex trial and that costs should be on a party and party basis, according to scale.
The magistrate then commented that the defendant had “laid it’s (sic) cards on the table from the start”, that the prosecution case had “little prospect of conviction, and the defendant should not have to bear the costs of defending the matter”. He then ordered that costs of $12,000 be ordered in favour of the defendant, adding that “12,000 sounds reasonable”.
With respect to the stated reasons of the magistrate, I would sound a note of caution.
The mere fact that a defendant proclaims his or her innocence from the start, and even if the prosecution case does not appear to be particularly strong, these are circumstances which are commonly experienced and would not necessarily justify departure from the First Schedule costs. It seems to me that the First Schedule costs are intended to be the norm, and departure from them must be based on something which clearly distinguishes the case from the norm.
Furthermore, I do not think that the defendant can add any weight to an application for indemnity costs, by writing a letter at an early stage, through his solicitors, as was the case here, proclaiming his innocence and threatening in an “in terrorem” fashion, to claim indemnity costs if the prosecution is dismissed.
Neither do I think it appropriate to depart from the scale in the First Schedule simply because an argument could be advanced, as was put on the hearing of the application, that it has perpetuated a level of fees which, over the course of time, has failed to keep pace with the actual costs charged by legal practitioners.
In an affidavit of Mr Craig Caldicott, solicitor for the applicant, filed in support of the cross-appeal, he complained that:
11.1 Costs as set out as per the Magistrates’ Court Criminal Scale (Schedule 1) are uncommercial when compared to the actual cost of costs incurred by clients and rendered by legal practitioners.
…
11.4 …that the Magistrates’ Guide to fees, namely the Magistrates’ Court Criminal Scale of Costs, is wholly inadequate and does not reflect an appropriate scale for work undertaken.
If the First Schedule costs have drifted out of touch with the actual costs of litigation, that may justify a review of the schedule, but the level of fees in the schedule must remain the norm unless it is amended.
In dismissing the cross-appeal, the appeal judge stated:
The magistrate was of the view that full indemnity was inappropriate and there was no ground for interfering with the exercise of his discretion in this respect.
I agree. The trial magistrate was entitled to moderate the respondent’s claim for costs to the extent necessary to reflect what might appear to be a fair and reasonable amount.
The appeal judge referred to the passage of the matter through the Magistrates Court. While he agreed that it was open to the magistrate in the circumstances to make an award higher than the scale, he was of the view that the magistrate erred in the extent to which he departed from the scale.
On the appeal, the appeal judge reduced the costs to the level which he thought appropriate in all the circumstances, namely $7,000.
On the application for leave to appeal, counsel for the applicant, Mr Ian Robertson, contended that information given to the police prosecutor at an early stage should have induced the prosecutor to drop the charges. I do not pause to go into the detail of that information, which related in part to telephone calls between the alleged victim and relatives in Germany. It was not for the prosecutor to determine whether the complainant, supported by a witness said to have been present at the time of the assault, was worthy of credit. Prosecuting authorities owe a duty to proceed with charges where, as was the case here, it would be open for the court to accept the complainant as a creditable witness. It is not for prosecutors to prejudge that issue.
Furthermore, the fact that prosecutors owe a public duty to initiate a prosecution, when that is justified on the evidence in their possession, is a matter to be taken into account by the court when faced with an application for indemnity costs, or costs at a level beyond the party and party scale set out in the schedule to the rules.
Nothing I have said should be understood to detract from the general rule that a successful defendant is entitled to an order for costs in his or her favour. But an award of costs at a level beyond the party and party scale set by the rules should only be justified when there are exceptional circumstances. Emphatic protestations of innocence coupled with assertions that the complainant is lying, are commonplace. Standing alone, they would not ordinarily justify a departure from the general rule.
Viewed in that light, the applicant might be thought to have been fortunate to obtain an award of costs beyond the party and party scale.
But having done so, the amount to be allowed was entirely a matter for 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.
The appeal judge has not been shown to have been in error in taking the course which he did. Furthermore, the case does not raise any question of principle or a question of general importance such as to justify the attention of the Full Court.
For these reasons, I joined in the order of the Court dismissing the application for leave to appeal.
NYLAND J: I agree with the reasons of Perry J for dismissing the appeal.
SULAN J: I agree that the application for leave to appeal should be dismissed. I agree with the reasons of Perry J.