Lockett v Commissioner of Consumer Protection - [2017] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: LOCKETT -v- COMMISSIONER OF CONSUMER PROTECTION [2017] WASC 358

CORAM: HALL J

HEARD: 30 AUGUST 2017

DELIVERED : 11 DECEMBER 2017

FILE NO/S: SJA 1020 of 2017

BETWEEN: SIMONE ELIZABETH LOCKETT
Appellant
AND
COMMISSIONER OF CONSUMER PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LONGDEN
File No  :PE 27474 of 2015, PE 27475 of 2015, PE 27476 of 2015

Catchwords:

Criminal law - Costs - Appeal by successful accused against amount of costs order - Whether magistrate failed to take into account relevant considerations - Whether magistrate made an error of fact - Whether costs order was manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9, s 39
Criminal Procedure Act 2004 (WA), s 67
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5, s 8

Result:

Application for an extension of time granted
Leave to appeal in respect of each ground refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C Silver
Respondent: Ms S Vahala

Solicitors:

Appellant: Rebus Legal
Respondent: Department of Commerce, Consumer Protection Legal Services

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

Basham v City of Joondalup [2015] WASC 345
Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 214 LGERA 375
Bell v Velios [2016] WASC 247
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Cominelli v Travaglini [2015] WASC 437
Haddon v Everitt [2001] WASCA 420; (2001) 126 A Crim R 418
House v The King [1936] HCA 40; (1936) 55 CLR 499
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Nevermann v The Queen (1989) 43 A Crim R 347
Norton v Morphett (1995) 83 A Crim R 90
Schweppes Ltd v Archer (1934) 34 SRNSW 178
Shewchuck v Total Western Transport (1998) 105 A Crim R 72
Taylor v WA Police [2007] WASC 158; (2007) 34 WAR 39

HALL J: This is an appeal against a costs order made in the Magistrates Court.
The appellant was found not guilty after a trial in the Magistrates Court of three charges of breaching the Fair Trading Act 2010 (WA). The magistrate awarded costs in favour of the appellant in the sum of $6,000. The appellant seeks leave to appeal against the order for costs. In essence, the appellant contends that the magistrate failed to make a proper assessment of the costs and that the amount awarded was manifestly inadequate.
The appeal notice was filed approximately two weeks out of time. In an affidavit, the appellant's solicitor states that the main reason for the delay was that the appellant needed to generate funds for the appeal. The delay is relatively short and has occasioned no prejudice to the respondent. In the circumstances, I would grant an extension of time.
The amount of costs to be awarded to a successful party is a decision of a discretionary nature. In an appeal from such a decision there is a strong presumption in favour of the correctness of the decision appealed from. The decision should be affirmed unless the appeal court is satisfied that the decision is clearly wrong. For the reasons that follow, I am not satisfied that the magistrate's decision as to the amount of costs awarded to the appellant was clearly wrong and, accordingly, leave to appeal is refused and the appeal is dismissed.

Procedural History

A prosecution notice was signed on 28 April 2015 charging the appellant that on three occasions between 13 September 2013 and 5 February 2014 she had accepted payment for services in the course of trade or commerce and had failed to provide those services within a reasonable time, contrary to s 158(7) of the Australian Consumer Law (Cth) and s 32(2) of the Fair Trading Act 2010 (WA). The prosecution alleged that the appellant traded as 'Cinderella's by Simone' and that payments were received from three customers for 'IPL treatments'. 'IPL' is an acronym for 'intense pulsed light' and is a hair removal treatment.
The charges were first mentioned on 31 July 2015 at which time the appellant entered pleas of not guilty. There were four further mentions prior to the trial, which related to minor procedural matters and did not require the attendance of the appellant.
The trial was originally set down for 3 March 2016, but that date was later vacated and the trial was relisted for 21 November 2016. The trial commenced at 10.45 am on 21 November 2016 and concluded at 3.44 pm the following day. The magistrate reserved her decision.
The parties made written closing submissions, the last of which were filed on 13 December 2016. The magistrate had initially indicated the possibility of delivering a decision on 16 December 2016, but this was later deferred to 2 February 2017.
The magistrate prepared written reasons for her decision. Advance notice of the decision was given to the parties the day before delivery. On 2 February 2017 the magistrate delivered her decision acquitting the appellant of the charges and published her reasons. Counsel who appeared for the appellant then made an application for costs, which will be dealt with in more detail below.
Counsel who appeared for the appellant at the trial and on this appeal did not represent the appellant on 2 February 2017. The reason for that would appear to be that he had left the firm that then represented the appellant shortly before that date.

Was the matter complex?

The appellant claims that the matter was complex and required significant preparation. This is said to be a relevant consideration in assessing the amount of costs that was reasonable. There is also an issue as to whether all of the expenses incurred by the appellant were reasonably required. For these reasons it is necessary to say something about the nature of the prosecution case.
The appellant was the proprietor of a beauty treatment business that operated from leased premises. It was alleged that three clients had paid in advance for IPL treatment sessions. Two of the clients did not receive any services and one was provided with three out of the five sessions she paid for.
On 7 January 2014 the appellant was served with a notice of termination for failure to pay rent and outgoings in respect of her business premises. She was evicted in February 2014. This involved the landlord changing the locks. The equipment required to provide the IPL treatments was inaccessible as a consequence of this action.
Section 158(8) of the Australian Consumer Law provides that it is not an offence under s 158(7) if the person's failure to supply the services was due to the act or omission of another person or some other cause beyond the person's control and the person took reasonable precautions and exercised due diligence to avoid the failure.
Section 158(9) provides that it is not an offence if the person offers to supply different services as a replacement and the customer agrees to receive the different services.
In his opening address, defence counsel said that it was accepted by the appellant that she received payments from each of the clients in the course of conducting her business. Further, there was no dispute that the services had not been provided. The appellant's case was that she was 'unable to supply the services because her lease had been terminated'. Counsel said that in January 2014 the appellant went on holidays and left the business in the charge of employees. A default notice on the lease was issued while she was away and the landlord changed the locks. This resulted in the appellant not being able to provide the services that had been paid for (ts 7 ‑ 9).
Defence counsel also said that the appellant had paid more money to the landlord than was required but had failed to obtain receipts and it had proven difficult to reconcile the records. He said that the landlord had also unfairly charged fees for a number of previous default notices. He said that the appellant had acted diligently in trying to pay all moneys due under the lease (ts 11).
Defence counsel also said that there had been damage caused to a computer and this prevented the appellant from providing refunds to the clients. However, the appellant had brought cash refunds in envelopes to the court to give to each of the clients. Counsel said that this offer of a refund constituted a defence under s 158(9) (ts 9, 14 ‑ 15).
It is apparent, therefore, that the elements of the offence in each case were admitted. The only real issue was whether the defence in s 158(8) was made out. That is, whether the appellant's failure to provide the services was due to a cause beyond her control and whether she had exercised due diligence to avoid that failure. This was not an issue that involved any complexity, either in regard to the evidence or the law.

The evidence at the trial

The prosecution called four witnesses, the three clients and the investigator. The clients gave uncontested evidence as to their payments for IPL treatments and the fact that they did not receive the services (ts 19 ‑ 34). The major part of the investigator's evidence consisted of the playing of a recorded interview with the appellant.
In the interview the appellant said that whilst her role was to oversee the business, she employed managers and staff to carry out the day‑to‑day operations. When hiring staff she ensured that they had appropriate credentials, experience and references. She trained staff in the procedures and systems of the business. She had left staff in charge of the business when she went on leave in January 2014.
The appellant gave evidence in her defence. She did not dispute that payments had been received from the clients and that they had not received the treatments that they paid for. She said that this was initially because the IPL machine broke down and a new one had to be acquired. This meant that it was impossible to provide the services between 21 September and 30 October 2013 - a fact that was not disputed at the trial. She said that it again became impossible to provide the services after the landlord changed the locks in February 2014 (ts 59 ‑ 60).
A large portion of the appellant's evidence dealt with matters concerning amounts due under the lease. In particular she gave evidence that she had paid for work at the premises on a number of occasions that she believed should have been the responsibility of the landlord. She claimed that she should have been credited for the value of such work. She also claimed that if she had received that credit she would not have been in default of rental payments. She said that some of these claims for credit had been raised with the landlord, but were disputed. The disputed payments went back to the beginning of the lease in 2012.
During the trial the magistrate queried the relevance of evidence of disputes between the appellant and the landlord going back to 2012 (ts 55). The magistrate expressed doubt that it would be possible to resolve the disputed lease issues and said that the relevant question was limited to what steps the appellant had taken to ensure that she delivered the services that had been paid for.

The magistrate's reasons for decision

In her written reasons for decision the magistrate noted at the outset that there was no dispute that all of the elements of s 158(7) had been established in respect of each of the charges. She identified the real issue in the case as being whether the defence under s 158(8) had been made out. There was a question of who bore the onus of proof in respect of this defence, but that was not something that magistrate found it necessary to resolve because she was satisfied that it had been made out on any view [1] ‑ [4].
Her Honour said that regardless of whether the lease was terminated lawfully or unlawfully, the appellant was physically unable to access her business premises in order to provide the services once the locks were changed. She accepted the appellant's contention that her failure to supply services from that time was due to the act of another [30] ‑ [31].
Her Honour then turned to consider whether the appellant had taken reasonable precautions and exercised due diligence to avoid the failure to provide the services. She accepted that the appellant as a business owner was entitled to delegate to others the carrying out of the day‑to‑day affairs of the business. She found that there was no evidence to suggest that the appellant's level of involvement was less than would be expected of a business owner in her position [40] ‑ [43].
In regard to the rent, her Honour accepted that the amount of rent payable under the lease was not clear cut at all times. She also accepted that the appellant had made efforts to clarify how much money was owed. In these circumstances her Honour made a finding that the appellant had exercised due diligence in order to avoid failing to provide services to her customers [47] ‑ [49].
Her Honour made reference to submissions made on behalf of the appellant that it was necessary for her to reconcile all amounts due under the lease. Her Honour said:
The accused's position was that ultimately she paid more to the landlord in rent than was in fact due under her rental agreement. It was submitted that I was required to consider and reconcile all amounts paid and payable from the time the lease was first entered into in 2012 until the lease was terminated in 2014. I do not consider that it is possible to resolve this issue with any certainty on the evidence that was presented throughout the trial, however, I find that it is not necessary to do so in order to evaluate whether the accused took reasonable precautions and exercised due diligence to avoid failing to provide services. As previously noted, the focus of the consideration of whether the due diligence was exercised, and reasonable precautions taken, must be on what was done to avoid failing to provide services, rather than on an overall assessment of her business history and practices [50].
As to the defence under s 158(9), the magistrate did not accept the submissions made on behalf of the appellant that the offer of a refund was sufficient to raise this defence. She noted that the relevant definitions of 'goods' and 'services' did not include refunds [34] ‑ [35].

The costs order

On 2 February 2017, the magistrate commenced by confirming that the parties had received the draft reasons for decision. I will set out of the whole of the proceedings that followed:
HER HONOUR: So everyone is clear already that judgment of acquittal will be entered. Is there any other application?
CASEY, MS: Yes, your Honour. Application for costs. This matter has been going on for about a year and a half with our firm. There was a two‑day trial. Mr Silver had carriage of the matter and Ms Lockett has spent approximately 19,000 on legal fees. So if you want evidence of that, your Honour, we can come - I would ask that we come back in a week maybe so I can produce ‑ ‑ ‑
HER HONOUR: No. Well, you're seeking costs in the amount of 19,000 ‑ ‑ ‑
CASEY, MS: I am, your Honour, yes.
HER HONOUR: And you haven't prepared anything in support of that?
CASEY, MS: That's correct, your Honour. Mr Silver has left our firm just recently and abruptly and I haven't had time to prepare. I'm very sorry, your Honour.
HER HONOUR: All right. This matter needs to resolve one way or the other. So does the prosecution have anything to say about the ‑ ‑ ‑
VAHALA, MS: Your Honour, that is quite a substantial amount. It's a lot more than what's provided for in the costs schedule and the costs scale and my understanding is that they didn't receive instructions for trial until quite a while later and that the firm was also instructed on another matter that was unrelated, but that's (indistinct) documents. Your Honour, if we can seek a more detailed or some sort of costs schedule and how they're composed.
HER HONOUR: Yes, all right. Well, I really am reluctant to adjourn just for a costs - and I can indicate - I'm not sure the extent of your involvement or knowledge about the case, but, ultimately, the basis upon which I reached the conclusion that acquittals were to be entered was really not on the - I know Mr Silver spent a lot of time focusing on an issue that, ultimately, I considered didn't need to be resolved.
CASEY, MS: Yes, your Honour.
HER HONOUR: So I'm prepared to either today or (indistinct) an amount of costs substantially less than you're seeking, but if you maintain your application for a much greater amount, then we would need ‑ ‑ ‑
CASEY, MS: I understand, your Honour, but we are really in your hands and Ms Lockett - I mean, if your Honour could indicate how much you think that you would award.
HER HONOUR: Well, I would suggest in the - for a two‑day trial, a reasonably straightforward matter - in the matter of 6 or 7,000 would be what I was expecting.
CASEY, MS: Yes, your Honour. I ‑ ‑ ‑
HER HONOUR: But that's a matter for you.
CASEY, MS: Yes. Without Ms Lockett here it's very difficult to say ‑ ‑ ‑
HER HONOUR: Well, I wouldn't ‑ all right, well you need to either persuade me that the higher amount is ‑ ‑ ‑
CASEY, MS: Yes.
HER HONOUR: ‑ ‑ ‑ appropriate or I'm going to proceed to ‑ ‑ ‑
CASEY, MS: Yes, your Honour. So there's ‑ ‑ ‑
HER HONOUR: ‑ ‑ ‑ award what I think is a reasonable amount.
CASEY, MS: From what I've seen there has been six court appearances from - I was looking at our file - our trust system, a two‑day trial and trial prep and correspondence.
VAHALA, MS: Your Honour, some of those court appearances relate to, you know, just trial allocation.
HER HONOUR: Okay.
VAHALA, MS: Conference and video link applications and ‑ ‑ ‑
HER HONOUR: And a number of them she wasn't represented.
VAHALA, MS: Well, that's correct, your Honour.
CASEY, MS: Your Honour, I'm in your hands.
HER HONOUR: All right, okay. Well, my assessment, taking into account the - as I've already indicated the basis upon which a finding of not guilty was made, the two‑day trial, the fact that there has been a number of appearances but not always with Ms Lockett being represented, there was a lack of evidence in support of your application for costs at the higher amount. So in those circumstances I'm prepared to allow costs in the amount of $6,000 and I think that's a reasonable amount in light of all of those factors which I've just mentioned. So that's the order of the court. So it's verdicts of not guilty and costs in the amount of $6,000 (ts 2 ‑ 4).
It should be noted that counsel who appeared for the prosecution was correct in saying that the amount of $19,000 sought was more than is provided for in the relevant Costs Determination. The Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 came into operation on 1 July 2016. Clause 7 of that Determination provides that the costs recoverable by a successful accused in an official prosecution shall not exceed the amounts set out in Table C (except where the matter is complex, involves a high degree of skill or urgency or requires Senior Counsel). Accordingly, the amounts in Table C are the maximum amounts payable. Item 4 of Table C provides that the maximum amount payable for preparation of a case and a half‑day trial, including counsel fee, is $7,491, the maximum amount for a second half day is $836 and the maximum amount for a second day is $3,300.

Grounds of appeal

There are four grounds of appeal. They are as follows:
1.The learned magistrate failed to determine the quantum of the accused's costs to be awarded to the accused in a judicial manner.
2.The learned magistrate failed to make sufficient inquiries as to the preparation and conduct of the accused's defence.
3.The learned magistrate was in error of fact in determining what work in the circumstances was reasonable in the conduct of the accused's defence at the time of the consideration of the defence, without knowing those circumstances [sic].
4.The learned magistrate erred in law by making a costs award of $6,000 which was in all the circumstances so manifestly inadequate as to disclose error.

Relevant principles

A successful accused in the Magistrates Court is generally entitled to his or her costs: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 542 (Mason CJ), 565 (Toohey J). An accused person is successful if he or she is acquitted of the charges. The discretion to be exercised is one that is constrained by the relevant statutory provisions: Basham [No 2] [65] ‑ [82] (Fianacca J).
Section 67 of the Criminal Procedure Act 2004 (WA) (CPA) provides as follows:
67. Costs
(1)Subject to the Official Prosecutions (Accused's Costs) Act 1973 and this section, a successful party to a prosecution is entitled to the party's costs.
(2)If a court convicts an accused of a charge, the court may order the accused to pay all or a part of the prosecutor's costs.
(3)The amount of costs ordered under subsection (2) may be determined in accordance with the relevant determination made under the Legal Profession Act 2008 section 275 for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 and with the Legal Profession Act 2008 section 280.
(4)A court may reduce the costs that it would otherwise have awarded, or refuse to award costs, under this section to a party if —
(a)any act or omission of or caused by the party (other than an act or omission that is the subject of a charge) was unreasonable in the circumstances and contributed to the institution or continuation of the case; or
(b)any act or omission of or caused by the party during or in the conduct of the case was calculated to prolong the case unnecessarily or cause unnecessary expense.
(5)The court may adjourn an application for costs, or the determination of the amount of costs to be paid.
(6)A question adjourned under subsection (5) is to be dealt with by a magistrate and may be dealt with in chambers.
The Official Prosecutions (Accused's Costs) Act 1973 (the Accused's Costs Act) applied in this case because the appellant was a successful accused in proceedings in a summary court that were commenced by a public official: s 4. Section 5 of that Act relevantly provides:
5. Successful accused entitled to costs
(1)Subject to this Act, a successful accused is entitled to his costs.
(2)Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein but the accused is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour.
…
(5)The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a costs determination (as defined in the Legal Profession Act 2008 section 252).
Section 8 of the Accused's Costs Act provides that the court can adjourn the question of costs or the amount of those costs to chambers.
Section 4 of the Accused's Costs Act defines the word 'costs' as used in that Act to mean:
… any expenses that -
(a)are properly incurred by an accused in an official prosecution; and
(b)are due and payable, or paid, by an the accused to another person or as court fees;
In Bell v Velios [2016] WASC 247, Le Miere J said that an order should be made in the sum of costs incurred by an accused person if that person can satisfy three conditions. Those conditions are:
1.The costs must be properly incurred by the accused. To be properly incurred the expenses must have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination: Haddon v Everitt [2001] WASCA 420; (2001) 126 A Crim R 418 [60] ‑ [61].
2.The expenses must be due and payable, or paid, by the accused to another person or as court fees.
3.The amount of costs, other than court fees, should be in accordance with the scale fixed from time to time by a relevant costs determination.
The first condition, whether the costs were properly incurred, requires the exercise of a discretionary judgment (or at least an evaluative one). It is necessary for a magistrate considering this condition to make an assessment of whether the expenses incurred were reasonably necessary to adequately prepare and present a defence to the charges. This is a judgment that will be informed by the nature of the charges, the length of the trial and complexity of the issues. It may also be relevant to take into account whether work was undertaken, or time expended in the proceedings, that was not reasonably required. It follows from this that a successful accused, whilst generally entitled to a costs order in his or her favour, will not necessarily be entitled to an order that is in the amount of the total expenses that have been paid.
In Latoudis v Casey it was recognised that there may be cases where a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably. In such a case it would be just and reasonable to make an award for a proportion of the defendant's costs (544) (Mason CJ). Neither justice nor reasonableness demands that a successful defendant be indemnified as to the entirety of the costs incurred where the proceedings have been unreasonably prolonged (565) (Toohey J).
In Haddon v Everitt a magistrate made an order for costs that was substantially less than that sought by the appellants. On appeal the Full Court increased the amount, but only in respect of one aspect of the costs. In other respects Steytler J (with whom Kennedy J agreed) said that it was open to the magistrate to deny the appellants costs in respect of unsuccessful applications and to disallow costs that had been unreasonably incurred. In that case costs had been unreasonably incurred because there had been a duplication of work arising out of changes in representation ([164] ‑ [166]).
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court: s 7(1) Criminal Appeals Act 2004. A 'decision' is defined to include a decision as to costs: s 6(h) Criminal Appeals Act. The grounds upon which an appeal can be brought are that the magistrate made an error of law or fact or both, that the magistrate acted without jurisdiction, that the magistrate imposed a sentence that was inadequate or excessive or that there was a miscarriage of justice: s 8 Criminal Appeals Act. Leave to appeal is required for each ground of appeal and leave cannot be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding: s 9 Criminal Appeals Act.
The approach taken to appeals from discretionary decisions is well known. In House v The King [1936] HCA 40; (1936) 55 CLR 499, 504, Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance (504 ‑ 505).
Where an appeal against a costs order goes to quantum only, a court will be reluctant to interfere with the decision unless a significant error is found in the magistrate's approach and it will only do so in an extreme case: Norton v Morphett (1995) 83 A Crim R 90, 100; Schweppes Ltd v Archer (1934) 34 SRNSW 178, 183 ‑ 184; Shewchuck v Total Western Transport (1998) 105 A Crim R 72, 78, 78; Cominelli v Travaglini [2015] WASC 437 [8] and Bell v Velios [7].
The Magistrates Court is a court of summary jurisdiction. Proceedings in that court must be dealt with efficiently. It has been recognised that a magistrate may apply a broad‑brush approach to fixing costs and in doing so make sufficient inquiries and possess whatever information is required to ensure that the award of costs is logical, fair and reasonable: Basham v City of Joondalup [2015] WASC 345 [33] and Brookvista Pty Ltd v Meloni [2009] WASCA 180. The magistrate's inquiry as to costs need not follow any particular path: Bell v Velios [12].
The reasons given by a magistrate may be shortly stated and not developed in great detail so long as they disclose the essential grounds on which the decision is made: Nevermann v The Queen (1989) 43 A Crim R 347, 350; Taylor v WA Police [2007] WASC 158; (2007) 34 WAR 39 [51]; Basham [No 1] [31] and Basham v City of Joondalup[No 2] [2016] WASC 120; (2016) 214 LGERA 375 [112]. It would subject a magistrate to too onerous a task to require him or her to explain in detail why the full amount of time worked or the full amount claimed under the scale has not been awarded: Bell v Velios [25]. A magistrate is not required to expressly apportion costs awarded by reference to items in a costs determination: Taylor v WA Police [54], Bell v Velios [23].

New or fresh evidence - affidavit of the appellant's solicitor

An affidavit sworn by Mr Chad Silver, the appellant's counsel, was filed with the Notice of Appeal. The affidavit deals with the delay in lodging the appeal. However, it also deals at length with the magistrate's court proceedings and the costs incurred. It annexes a number of invoices and a costs schedule. This was not material that was before the magistrate.
Generally an appeal court must decide an appeal on the evidence that was before the magistrate: Criminal Appeals Act 2004 s 39(1). However, there is a discretion to admit other evidence: s 39(3). One relevant consideration in exercising this discretion is when the evidence came into existence. Fresh evidence is evidence that did not exist at the time of the trial or could not with reasonable diligence have been discovered. New evidence is evidence that was in existence at the time and could have been discovered. A stricter approach is taken with new evidence than with fresh evidence.
It is not apparent when the schedule and invoices were created. It can, however, be safely assumed that the information in them was in existence as at 7 February 2016. It was information that was available to the appellant's lawyers and could have been produced in the Magistrates Court. There is no adequate explanation for the failure to do so.
The appellant submits that, nonetheless, I should have regard to the schedule and invoices because this is material that was relevant to the issue of costs and that the appellant was prevented from adducing it due to the failure of the magistrate to adjourn the matter. There are at least two problems with this submission. Firstly, it assumes that the only reason the magistrate did not grant costs in the amount sought was because of a failure to produce a schedule or invoices to prove that that amount had been expended. That is incorrect; the decision on costs was primarily based on whether the costs had been properly incurred, as I will explain shortly. Secondly, it assumes that this material would have made a difference to the amount of costs granted. However, these documents provide only the most general description of the legal work done. They do not address the critical issue of whether the expenses were reasonably required.
I would refuse leave to rely on the affidavit. The information contained in it is new and could have been adduced in the Magistrates Court. It is not evidence that establishes a miscarriage of justice. It would only be relevant in the event that the appeal was allowed and the discretion as to costs had to be exercised afresh.

Grounds 1 and 2 – Was there a failure to take into account relevant considerations?

The appellant dealt in written submissions with grounds 1 and 2 together. It is convenient to do the same in these reasons.
The appellant submits that 'costs ought to be considered in a manner favourable to an accused'. It is said that this places 'the burden on the opposing party to show that the costs were not properly incurred'. It is also said that the costs recoverable by an accused 'ought to be maximised in favour of the accused … in order to ensure that successful accused are not burdened with legal costs'. It was further submitted that the magistrate should have granted an adjournment to allow the appellant's solicitor to prepare a schedule of costs and that it would have been improper to prepare such a schedule before the decision was made. It is said that as a result of not granting an adjournment the magistrate failed to take into account relevant information that could have borne upon the question of the appropriate amount of the costs.
I do not accept that the onus is on the unsuccessful party to show that any claim for costs is unreasonable. A party making a claim for costs should be in a position to explain and, if called upon to do so, substantiate, the amount of costs claimed. In some cases, particularly where the matter is complex and the result is unexpected, an adjournment to allow a quantification of the costs may be necessary. But this was not such a case.
In this case the hearing was completed on 22 November 2016 and the magistrate reserved her decision. There was adequate time before the delivery of the decision on 2 February 2017 for the appellant's lawyers to prepare a schedule of costs referring to the relevant determination. If it was intended to claim costs in excess of the determination on account of any suggested complexity of the matter then it would be appropriate to prepare a submission to support such a claim. I do not accept the appellant's submission that it is inappropriate to prepare a claim for costs before the outcome is known. In any event, advance notice of the outcome was provided to the appellant's solicitors.
The application for costs was made on the basis that approximately $19,000 had been expended by the appellant on legal fees. No schedule or other substantiation was provided. However, the real issue for the magistrate was not whether that amount had been paid by the appellant to her lawyers. Rather, the issue was whether those expenses had been reasonably incurred. That was not an issue that would have been assisted by adjourning the matter to receive a schedule of costs or copies of invoices or timesheets. It was an issue that depended on an assessment of the nature, length and complexity of the matter.
The magistrate awarded costs in the amount of $6,000 because she considered that to be a reasonable amount in light of all of the circumstances, including her assessment that the matter was reasonably straightforward. Her Honour also made reference to the fact that 'a lot of time' had been spent focusing on an issue that did not need to be resolved. The necessary implication was that not all of the legal expenses were properly incurred because some of them were not reasonably required to adequately present the appellant's case.
The magistrate was best placed to make an assessment of the complexity of the matter and the amount of time that it was reasonable to expend in getting the matter up for trial and in representing the appellant at the trial. She was also in a good position to make an assessment that some costs had not been properly incurred. In these circumstances, it was open to the magistrate to conclude that the amount of expenses said to have been paid was not a useful indicator of the amount of costs that should be ordered. It was also open to her Honour to make her own assessment of what was a reasonable amount in the circumstances.
Whilst the magistrate's reasons in respect of costs were brief they do not suggest that she approached this question in a capricious or unprincipled way. It is clear that her Honour appreciated that the relevant question was what was a reasonable amount of costs to award the appellant as a successful accused in the circumstances of this particular matter. She took into account the time taken and the issues at trial. The issues were in fact very confined and related exclusively to whether the defence had been made out. Almost all of the prosecution case was uncontested. This was, as the magistrate correctly said, a reasonably straightforward matter. Those findings of fact are not contested by the grounds of appeal.
The magistrate did not expressly refer to the relevant scale, but that does not mean that she did not take it into account. The scale was referred to in the course of submissions by the prosecutor. The reasons given by the magistrate and the amount of costs awarded are not necessarily inconsistent with regard to the scale, when all of the circumstances of the case are taken into account.
In my view, it is not reasonably arguable that the learned magistrate failed to determine the quantum of costs in a judicial manner. Nor is it arguable that the magistrate failed to make sufficient inquiries as to the preparation and conduct of the accused's defence. She took into account the relevant considerations and gave the appellant's lawyer a fair opportunity to make submissions on the relevant issue.

Ground 3 – Did the magistrate make an error of fact?

The appellant's written submissions in respect of this ground to some extent repeat those made in respect of grounds 1 and 2. It is submitted that the magistrate 'arbitrarily determined' that she would award $6,000 in costs to the appellant. It is also said that the magistrate failed to consider the work that was undertaken to prepare for the trial.
Clearly the figure of $6,000 was not arbitrary. That was her Honour's assessment of an appropriate amount to reflect the time and complexity of the matter. As is usual in the Magistrates Court, brief oral reasons do not necessarily reflect all of the matters that have been taken into account.
The alleged error of fact referred to in this ground of appeal is the reference by the magistrate to the time spent on an issue that did not need to be resolved. In written submissions, counsel for the appellant states that he is not aware what the magistrate was referring to. However, he then goes on to justify time spent in dealing with issues relating to disputes with the landlord.
The comment by the magistrate regarding time spent on an unnecessary issue needs to be viewed in the context of her written reasons. It is evident from those reasons that the issue in question was whether there was any need to reconcile all of the rent paid or payable from the commencement of the lease, as contended by counsel for the appellant. Counsel may well have a different view to that expressed by the magistrate on this issue, but that does not mean that her Honour made an error of fact.
The issue at trial was not whether the appellant was correctly evicted, but whether she had acted with due diligence to avoid breaching her obligation to provide the services that had been paid for. As the magistrate pointed out a number of times to the appellant's counsel during the trial, it would not be possible for her, on the limited information provided, to decide the rights and wrongs of any disputes between the appellant and her landlord over a two‑year period. Despite this, counsel persisted in leading evidence from the appellant of work that she had paid for at the leased premises and of fees charged in respect of other default notices. It was open to the magistrate to conclude that expenses relating to this evidence were not reasonably incurred.

Ground 4 – Was the costs order manifestly inadequate?

A claim that an award of costs is manifestly inadequate is a claim of implied error. What must be established is that the amount of costs awarded was so clearly unjust or unreasonable that it could not have been the product of any reasonable exercise of the magistrate's discretion.
Where implied error is asserted it is not sufficient that the appeal court might have exercised the discretion differently. There is a strong presumption in favour of the correctness of the decision appealed from where the decision involves the exercise of a discretion. Unless it can be shown that the decision is clearly wrong it should be affirmed. What the appellant must establish is that it was not open to the magistrate in the proper exercise of her discretion to award costs in the amount that she did.
The amount of the costs ordered in this case is less than that provided for in the relevant determination for a two‑day trial and preparation. Whether that is a significant factor depends on the degree of difference and whether all of the costs relating to the trial were properly incurred. It is apparent from the magistrate's comments that she was not satisfied that they were. The matter that the magistrate referred to as being unnecessary to resolve took up a very considerable amount of time at the trial. It would be expected in these circumstances that the amount of costs would be less than might otherwise be appropriate for a two‑day trial. The magistrate was required to exercise a discretionary judgment in this regard. She may well have come to a conclusion that a significant proportion of the expenses were unreasonable.
It is not a question of what costs order I would make in the circumstances of the case if I was exercising the discretion. It is necessary for the appellant to establish that the magistrate fell into error. Having regard to the matters referred to earlier, I am unable to come to the conclusion that it was not open to her Honour to find that the appropriate award of costs in this case was $6,000. The amount awarded is not plainly unreasonable or unjust in the particular circumstances of this case.

Conclusion

For the reasons I have given I would refuse leave in respect of each of the grounds and dismiss the appeal.

Orders

1.The application for an extension of time is granted;
2.Leave to appeal in respect of each of the grounds is refused;
3.The appeal is dismissed.