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…

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.

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Details

Case: [2006] SASC 288
Decision Date: 18 September 2006

CaseChat Overview and Summary

Konieczka, the applicant, sought leave to appeal against an order made by a single judge of the court that allowed in part an appeal and disallowed a cross-appeal related to an order for costs made after a summary trial in the Magistrates Court. The matter arose from a complaint dismissed following a one-day trial in the Magistrates Court, where the applicant applied for costs on an indemnity basis in the amount of $17,900. The magistrate fixed costs at $12,000, and on appeal, a single judge of this court reduced costs to $7,000. The central legal issue was whether the court had the jurisdiction to award indemnity costs in a criminal matter and whether there was an error in the reasons provided by the appeal judge. Additionally, it was considered whether there was a question of principle worthy of examination by the Full Court.

The court examined the jurisdiction to award indemnity costs in criminal proceedings and concluded that there was no error in the reasons given by the appeal judge. The court found that the single judge's decision did not constitute a significant error or a matter of principle that required the Full Court's attention. As a result, the application for leave to appeal was dismissed, affirming the single judge's decision on the costs order.

In dismissing the application, the court emphasised that the single judge's reasons were sound and that there was no demonstrated error warranting further consideration by the Full Court. The court maintained the reduced costs order of $7,000 as determined by the single judge, thereby finalising the matter concerning the costs awarded following the dismissal of the complaint in the Magistrates Court. The decision underscores the importance of clear and reasoned judgments in appeals related to costs in criminal proceedings.

Orders