Moore-McQuillan v Police No. Scgrg-98-748 Judgment No. S6971
[1998] SASC 6971
•27 November 1998
MOORE-MCQUILLAN v POLICE
[1998] SASC S6971
Magistrates Appeal
Debelle J
Appeal against order as to costs
The events leading to this appeal are as follows.
On 21 September 1995 a restraining order was made in the Adelaide Magistrates Court against the appellant at an ex parte hearing.
On 10 October 1995 the order was confirmed by a magistrate at an inter partes hearing.
On 18 February 1997 the appellant instituted an appeal against the confirmation of the restraining order. The appeal was well out of time and the appellant applied for an extension of the time within which to appeal.
On 24 June 1997 Duggan J made an order extending the time within which to appeal. He then allowed the appeal, set aside the confirmation of the restraining order, and ordered that the matter be remitted to another magistrate for re-hearing. For the purpose of this appeal, it is important to note that Duggan J made no order as to the costs of the appeal.
On being remitted to the Adelaide Magistrates Court, the matter was heard by Mr Field SM on 7 October 1997. It could not be concluded on that day. Mr Field SM adjourned the matter to 15 December 1997 and it continued on 16 and 17 December.
On 19 December 1997 Mr Field SM published his judgment. He refused to confirm the restraining order and dismissed the complaint.
Upon the order for dismissal of the complaint being made, the appellant applied for costs. On 19 December 1997 Mr Field SM ordered that the prosecution pay the appellant’s costs in the amount of $120 “for conveyance and car parking”. The costs were to be paid within two months.
On 4 May 1998 the appellant appealed against the order for costs made in his favour. The appellant claims the costs as the successful party. He asserts in his Notice of Appeal that he is out of pocket in a total sum of $10,712.49.
The appeal was out of time. It was filed about four months late. The appellant has applied for an extension of time within which to appeal. It is convenient to deal first with the merits of the appeal.
As already mentioned, Duggan J made no order as to the costs of the appeal which he heard. If the appellant has any claim for costs, that claim is limited to his costs in the Magistrates Court in relation to any costs he incurred in opposing the restraining order or on his application to set it aside.
The appellant’s claim for costs is grounded on the fees he has paid to firms of solicitors for professional services during the period 1 February 1996 to 30 November 1996. He seeks reimbursement of a substantial part of those costs. He has paid Fletcher & Jones $11,938.34 for services rendered between 1 February 1996 and 22 March 1996.Thereafter, he instructed Johntson Withers and has paid that firm $7,704 for services rendered between 7 March 1996 and 13 November 1996. He says that $10,712.49 of those costs relate to this matter. Both firms provided the appellant with detailed memoranda of fees showing the individual services for which he had been charged. It is apparent from a perusal of those memoranda that the fees do not relate to this matter.
That conclusion is reinforced by examining what has occurred in these proceedings.
21 September 1995 -.. An interim restraining order was made at an ex parte hearing. The summons was returnable for 28 September. The appellant was not in court on this occasion.
28 September 1995 - The prosecution applied to vary the order. The application was adjourned to 10 October 1995.
10 October 1995 - The order was confirmed and a slight variation made. The appellant was present.
*22 March 1996 - Mr Harris SM convicted the appellant of five offences; three were breaches of the restraining order and the others were resisting arrest and assaulting a police officer.
10 February 1997 -.... The appellant appealed against the restraining order - action No 239 of 1997 in this court.
-The appellant appealed against the convictions ordered on 22 March 1997 - action No 240 of 1997 in this court.
24 June 1997 - Duggan J allows the appeal against confirmation of the restraining order and remits the matter to the Adelaide Magistrates Court (AMC)
8 August 1997 - The AMC adjourns the hearing to 14 August 1997 to fix a date for hearing.
14 August 1997 -.... The AMC further adjourns the hearing to 20 August to enable the prosecution to obtain details of the appeal.
20 August 1997 - The AMC further adjourns the hearing to 7 October 1997.
7 October 1997 -.. Mr Field SM begins the re-hearing of the confirmation order and adjourns the hearing to 15 December 1997.
15-17 December 1997 - Mr Field SM, after hearing further evidence and submissions, reserves judgment to 19 December.
19 December 1997 -. Mr Field SM refuses to confirm the order and dismisses the complaint. The order for $120 as costs to be paid to the appellant is made.
*17 February 1998 - Duggan J allows appeal against breaches of restraining order and sets aside convictions but dismisses the appeal in respect of offences of resisting arrest and assaulting police. He adjourns the appeal until 25 February.
*25 February 1998 -... Duggan J orders fresh penalty for offences of resisting arrest and assaulting police. He orders that there be no order as to costs of the appeal or of the proceedings in the Magistrates Court.
Three facts are apparent from the above chronology. The first is that all of the events marked with an asterisk relate to matters which are not directly related to the making of the restraining order or the appellant’s attempts to set it aside but, instead, relate to breaches of that order and other matters. Secondly, all of the events, other than the appearance before Mr Harris SM, fall outside the period when the two firms of solicitors respectively advised the appellant and in respect of which they rendered fees. Thirdly, although it is apparent from the memorandum of fees rendered by Fletcher & Jones that they acted for the appellant when he appeared before Mr Harris SM charged, among other things, with breaches of the restraining order, questions of costs relating to that appearance were the subject of a separate order for costs made by Duggan J on 25 February 1998 to which I will refer in a moment. The items marked with an asterisk all relate to the appeal which has a file numbered 240 of 1997 in this court and which concerns the appeal instituted by the appellant against the convictions ordered by Mr Harris SM on 22 March 1996. On 17 February 1998 Duggan J set aside the convictions for breaches of the restraining order but upheld the convictions for assaulting police and resisting arrest. On 25 February 1998 Duggan J ordered a fresh penalty and made an order for costs in relation to both the appeals and the proceedings in the Magistrates Court. That order was that there be no order as to the costs of either the appeal or the proceedings in the Magistrates Court. The appellant applied for leave to appeal but leave was refused. Thus, an order has been made in respect of the matter in respect of which Fletcher & Jones rendered their fees. For these reasons, the services rendered by either Fletcher & Jones or Johnston Withers cannot be the subject of any order for costs made by Mr Field SM.
There is yet another reason why the costs incurred in relation to the proceedings before Mr Harris SM on 22 March 1996 could not be recovered as costs of this matter. Notwithstanding that the appellant had challenged the validity of the restraining order, he was obliged to comply with it while it remained in force. He, therefore, cannot recover as costs in these proceedings to set aside the order any costs incurred in respect of defending charges brought for a breach of the order.
For all of these reasons, the appellant is not entitled to recover in these proceedings any part of the costs he incurred with Fletcher & Jones and Johnston Withers. It follows that he is not entitled to reimbursement of the sum of $10,712.49.
The appellant endeavoured to support his appeal on other grounds. Although he has represented himself in these proceedings, he is not entitled to any costs except his out-of-pocket expenses, including disbursements and travel expenses to and from the court: Willing v Hollobone (1972) 3 SASR 532. He is not entitled to costs for any time lost in preparing the case for trial. He claimed that he was entitled at least to a witness fee for the day when he gave evidence before Mr Field SM. However, he is entitled to a witness fee only if he can show that he has lost income as a result of his attendance to give evidence: Kelly v Noumenon (1988) 47 SASR 182, 185. The appellant is in receipt of workers compensation. He did not lose any income when attending the Magistrates Court. He is, therefore, not entitled to a witness fee.
The appellant also submitted that he had incurred more than $120 as fees for photocopying, preparation of documents, parking and travelling. There are no particulars which justify allowing the appeal on this ground. More significantly, those items were all the subject of the claim for costs made before Mr Field SM. The learned magistrate had a wide discretion as to costs. This court may only interfere where “the exercise of the discretion was so unreasonable or so unjust as to require” it to substitute its own decision: Police v Leonard (1995) 64 SASR 390, 394. The appellant has not adduced anything which shows that the amount ordered was so manifestly inadequate that this court should interfere. His claim centred on the fees rendered by the two firms of solicitors to which I have already referred. There were no other particulars which supported his claim. There is, therefore, no basis upon which the court would be justified in interfering with the decision of Mr Field SM.
For these reasons, there is no merit in this appeal.
In addition, this appeal is four months out of time. That is a substantial delay. The only explanation offered by the appellant for the delay is that he was busy attending to other legal proceedings in which he was then engaged. He said he had at least twelve matters proceeding in different courts. The appellant does not say he was unaware of the time limit. He explains the delay only because he was busy with other matters. I am not persuaded that these are sufficient reasons to justify extending the time.
For all of these reasons, the application for an extension of time in which to appeal is refused. Even if I had been prepared to extend the time in which to appeal, I would have dismissed the appeal for the reasons expressed above.
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