MAustralian National UniversityEL v POLICE (No 2)

[2010] SASC 230

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

MANUEL v POLICE (No 2)

[2010] SASC 230

Judgment of The Honourable Justice Kourakis (ex tempore)

15 July 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS

Appellant convicted of offences in Magistrates Court – appeal to Supreme Court was allowed, convictions were quashed and matter was remitted to Magistrates Court – appellant sought order for costs – whether matter should be referred for taxation – whether lump sum should be nominal amount – whether lump sum should be calculated by heavily discounting what might have been party/party costs – whether lump sum should approximate successful party’s party/party costs – Held: Matter should not be referred for taxation – costs should be awarded as lump sum determined by judge who hears appeal – no reason to depart from principle that costs ordinarily follow the event in Magistrates Appeals – appellant entitled to award of costs as a lump sum which reflects party/party costs.

Felstead v Giersch (1976) 14 SASR 27, applied.

MANUEL v POLICE (No 2)
[2010] SASC 230

1. KOURAKIS J:     On 4 June 2010 I allowed the appellant’s appeal against her convictions and remitted the matter to the Magistrates Court for further hearing.  The appellant now seeks an order as to costs.  A dispute has arisen about the basis upon which those costs should be ordered.

2. The appellant’s primary position was to ask that the matter be referred for taxation.  In my view, given the nature of the matter, it is inappropriate to put the parties to the further expense of a full taxation.  As a general rule, costs on Magistrates Appeals should be awarded by a lump sum determined by the judge who hears the Magistrates Appeal.

3. The parties dispute the basis upon which the lump sum should be calculated.  The respondent contends that I should award costs on the basis of a longstanding practice to award a nominal amount; in the case of appeals against conviction about $500 is often ordered.  Alternatively, the respondent contends that a lump sum should be awarded and calculated by heavily discounting what might have been the party/party costs.

4. On the other hand, the appellant contends that I should apply the approach adopted by the Full Court in Felstead v Giersch.[1]In that case the majority held that, if a lump sum is to be awarded, it should approximate the successful party’s party/party costs.  Felstead was an appeal against a conviction in a summary matter.  It was of course brought at a time when the statutory context for the hearing and determination of matters summarily, and the hearing of appeals from those matters, was quite different to the present statutory position.

   [1] (1976) 14 SASR 27.

5. Felstead has not been overruled.  The practice of awarding costs on a nominal basis has, for one reason or another, lingered on, notwithstanding the clear statements against that practice made in Felstead.  In my view, the changes in the statutory context have not affected the authority of that decision.

6. The power to award costs in appeals brought against matters determined summarily was at one stage an express power conferred in the Summary Procedure Act 1921; the power to award costs now resides in the court’s inherent powers and powers under the rules on an appeal brought pursuant to the Magistrates Court Act 1991.  However, both powers conferred wide statutory discretions as is almost always the case with costs powers. The paramount principle that the courts have applied in the exercise of the costs discretion is that costs will ordinarily follow the event. There is, in my view, no reason to depart from that principle in Magistrates Appeals.  In particular, the following observations of Bray CJ in Felstead, continue to be sound:

   If we have to choose between hardship to successful and hardship to unsuccessful parties, surely the first should be preferred.  It seems to me to be a lesser evil that a man who unsuccessfully causes his opponent to incur expense should have to give him something approaching a full indemnity for that expense than that a man who has to come to this Court to establish his legal rights should receive a token sum with no resemblance to a full indemnity for the expense to which he has been put.  I think that justice must prevail over sympathy in such cases.  I can find no justification in principle for putting the costs of an appeal under the Justices Act in a special category.[2]

   [2]    Felstead v Giersch (1976) 14 SASR 27 at 37 per Bray CJ.

7. In Felstead, Bray CJ referred to the special position that pertained, at that time, to appeals against minor indictable matters which had been heard summarily.  There was a practice not to award costs on those appeals by reason of an analogy with the trial of, and appeals from, convictions in indictable matters.  The basis for that analogy has been swept aside by changes in the way in which minor indictable matters are now summarily determined.  Minor indictable matters proceed to trial and are heard summarily unless an election is made to have the matter committed.  Moreover, costs can now be awarded against an informant on the disposition of a minor indictable matter.  The power to award costs against the informant in the Magistrates Court, in my view, necessarily severs the analogy on which the exception in the case of minor indictable offences was once based.

8. Accordingly, appeals against both summary and minor indictable matters fall to be determined against the same principle.  The change in the nature of the power to award costs on appeal, to which I earlier referred, in my view has not worked any substantial change to the matters which remain relevant considerations.  The ordinary rule that the successful party is entitled to an award of costs still prevails.

9. I am conscious of the fact that the application of that rule will, in practice, constitute a barrier to convicted persons and may dissuade them from appealing.  I think that that is the explanation for the continuation of the practice to award nominal costs.  However, the position of the common law has always been to favour the interests of the individual with a just cause in the particular case before the court.  The common law as a general rule has not denied justice to a meritorious litigant out of concern about the effect of the application of the ordinary rule as to costs on others.  If it is thought that, as a matter of policy, something should be done to counter the application of the ordinary rule to which I have referred, then that is a matter for the legislature.

10. For the above reasons, it is my view that there should be an award of costs as a lump sum which reflects the party/party costs for the conduct of an appeal of this nature.  I am told that the parties have agreed between themselves that the appropriate amount is $27,500.

11. I also order that the costs of the trial in the Magistrates Court be remitted to that court to be determined on the final disposition of the proceedings in that court.