Murphy v Police

Case [2005] SASC 321

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MURPHY v POLICE

Judgment of The Honourable Justice Gray

25 August 2005

PROCEDURE - COSTS - APPEALS AS TO COSTS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION

Appeal against order for costs made by magistrate - whether legally aided defendant should recover costs following the dismissal of charges - consideration of interpretation and application of section 20 of Legal Services Commission Act 1977 (SA) - rationale and purpose of section to remove legal aid as relevant consideration when determining whether or not to make an order for costs - held: appeal allowed - respondent to pay appellant's costs fixed at $3000.

Legal Services Commission Act 1977 (SA) s 20; Summary Procedure Act 1921 (SA) s 189; Magistrates Court Rules 1992 (SA) r 51; Magistrates Court Act 1991 (SA) s 42, referred to.
Latoudis v Casey (1990) 170 CLR 534; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436; McNamara Business & Property Law v Kasmeridis [2005] SASC 269; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Owen v South Australia (1996) 66 SASR 251; Hamdorf v Riddle [1971] SASR 398; Schaftenaar v Samuels (1975) 11 SASR 266; House v The King (1936) 55 CLR 499, considered.

MURPHY v POLICE
[2005] SASC 321

Magistrates Appeal

GRAY J:

  1. This is an appeal against a costs order made by a magistrate.

  2. The appeal raises for consideration the question of whether a legally aided defendant should recover costs following the dismissal of charges. At issue is the interpretation and application of section 20 of the Legal Services Commission Act 1977 (SA). That section provides:

    (1)A court or tribunal in making an order for costs, or security for costs, in favour of, or against, an assisted person, may not take into account the fact that that person is an assisted person and is for that reason relieved wholly or in part from liability to pay costs.

    (2)Where legal assistance has been provided for an assisted person the Commission is subrogated to the rights of the assisted person to costs in respect of that legal assistance and any such costs received or recovered by the assisted person or a legal practitioner engaged to provide the legal assistance must be applied in accordance with the directions of the Commission.

    (3)Where the Commission has instituted proceedings for the recovery of any amount in respect of legal costs, and the Commission is entitled to reimbursement of the costs of the proceedings, the costs will be assessed in all respects as if a legal practitioner had acted for the Commission in the institution and conduct of the proceedings whether or not the Commission in fact engaged a legal practitioner so to act.

  3. The rationale…

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Murphy v Police [2005] SASC 321
Case
[2005] SASC 321
Decision Date

CaseChat Overview and Summary

The case of Murphy v Police involves an appeal by the appellant, Allan William Murphy, against an order made by a magistrate that dismissed a charge of assault against him and denied his application for costs. The issue before the court was whether the appellant, who was legally aided, should recover costs following the dismissal of charges, and whether the magistrate had correctly interpreted and applied section 20 of the Legal Services Commission Act 1977 (SA). This section aims to ensure that a legally aided party is afforded the same treatment as a self-funded party when determining whether an order for costs should be made. The court found that an order for costs should have been made and allowed the appeal. The magistrate's decision was set aside, and the respondent was ordered to pay the appellant's costs, fixed at $3000.

The legal issue before the court was the interpretation and application of section 20 of the Legal Services Commission Act 1977 (SA). This section aims to ensure that a legally aided party is treated the same as a self-funded party when determining whether an order for costs should be made. The court considered whether the magistrate had correctly interpreted and applied this section in denying the appellant's application for costs. The court found that the magistrate had not correctly interpreted and applied the section, and that an order for costs should have been made.

The court's reasoning was that the rationale underpinning section 20 of the Legal Services Commission Act 1977 (SA) is to remove legal aid as a relevant consideration when determining whether or not an order for costs should be made. This means that a legally aided party before the court should be afforded the same treatment as a self-funded party. The court found that the magistrate had not correctly interpreted and applied this section in denying the appellant's application for costs. The court held that an order for costs should have been made, and that the parties had agreed that if the appellant succeeded in this appeal, the costs should be assessed at $3000. The appeal was allowed, the magistrate's decision was set aside, and the respondent was ordered to pay the appellant's costs, fixed at $3000.

Orders

Orders of the court

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Background

Background to the litigation

The rationale underpinning this provision is said to be the removal of legal aid as a relevant consideration when determining whether or not an order for costs should be made such that a legally aided party before the court will be afforded the same treatment as a self-funded party.Background On 2 March 2005 a magistrate dismissed a charge of assault against the appellant, Allan William Murphy, following a two-day trial. There was nothing out of the ordinary about the trial; both sides called witnesses and both counsel made closing submissions. At the conclusion of the submissions, the magistrate delivered his judgment, finding the appellant not guilty. Counsel for the appellant made an application for the costs associated with the trial in the sum of $3,200 calculated in accordance with the Magistrates Court Criminal Scale of Costs. The prosecutor opposed the amount on the basis that the claim was excessive. The appellant was awarded costs in the sum of $200.Report from Magistrate At the request of the Court, the magistrate prepared the following report:The defendant was charged with one count of assault. He entered a plea of not guilty.At the conclusion of all evidence and after hearing submissions I found the defendant not guilty and delivered my reasons. I enquired as to whether there was an application for costs. Mr Allen, who appeared for the defendant, indicated that in the adjournment he had some discussion with the prosecutor as to costs in the event that the charge was dismissed. An application was made for costs. I do not have a note nor can I recall the specific amount sought but to the best of my recollection Mr Allen’s calculation was based on the scale of costs in criminal matters in the Magistrates Court. Mr Allen indicated that in the discussion with the prosecutor some reduction in the quantum sought had been made in recognition of the case turning on issues of credit. I enquired if the defendant was legally aided. Mr Allen said he was.I responded that it was only in the last couple of months that I had become aware of practitioners from the Legal Services Commission seeking costs on the dismissal of a charge. I indicated that on an occasion some weeks earlier when such an application had been made I had expressed the view that an order for costs was to put a successful defendant back in the financial position he or she would have been in if the prosecution had not been brought and, subject to any submission Mr Allen wished to put to me, this was still my view. I indicated that I would make an order for the actual out of pocket costs incurred by the defendant but not for solicitor and counsel fees that he was not required to pay. I invited Mr Allen to put any submissions to me on this issue and to ascertain what out of pocket expenses his client had incurred. Mr Allen did not put any submission to me and advised that his client was required to make a modest contribution to the Legal Services Commission and had incurred airfares in travelling to Adelaide for the hearing. He quantified those amounts.I had already indicated my preliminary view and there being no argument to the contrary I made an order that the prosecution pay the quantified out of pocket expenses brought to my attention by Mr Allen.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

An order for costs should have been made. The parties agreed that if the appellant succeeded in this appeal the costs should be assessed at $3000.Conclusion The appeal is allowed. The decision of the magistrate is set aside. The respondent is to pay the appellant’s costs fixed at $3000.

Ratio Decidendi

Legal Principle Established

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