P, J v Police - [2018] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
P, J v POLICE
[2018] SASC 173
Judgment of The Honourable Justice Lovell
22 November 2018
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
MAGISTRATES - ORDERS AND CONVICTIONS - COSTS - AGAINST PERSON COMMENCING PROCEEDINGS - AGAINST CROWN, POLICE OR PUBLIC OFFICIAL
The appellant was charged with aggravated assault against his spouse in the Magistrates Court. The prosecution withdrew the charge on the second day of trial. The appellant applied for an award of indemnity costs. The Magistrate refused to award costs on an indemnity basis.
Whether the Magistrate erred in failing to award costs on an indemnity basis in the circumstances - whether the Magistrate erred in refusing to make an award to cover expert evidence
Held:
1. The Magistrate did not err in finding that the case was not sufficiently 'exceptional' to warrant an award of indemnity costs.
2. The Magistrate did not err in failing to give proper regard to the gravity of the consequences a conviction would have for the appellant.
3. It was within the exercise of the Magistrate's broad discretion to award an additional amount to cover the preparation of summonses and the taking of witness statements.
4. The Magistrate did not err in awarding costs for Counsel fees in accordance with those allowable on the Scale of Costs.
5. The Magistrate did not err in refusing to award costs for the attendance of the appellant's solicitor at trial.
6. The Magistrate erred in failing make an award of costs for expenses incurred by the appellant in relation to expert evidence.
Appeal allowed.
The costs order made by the Magistrate is to be set aside and the appellant is entitled to costs in the sum of $11,055.00.
Magistrates Court Act 1991 (SA) s 42; Summary Procedure Act 1921 (SA) s 189; Magistrates Court Rules 1992 (SA) r 51; Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
AB v The Queen (1999) 198 CLR 111; Konieczka v Police [2006] SASC 288; House v The King (1936) 55 CLR 499; Curnow v Police [2008] SASC 84; Beasley v Marshall (No 3) (1986) 41 SASR 321; Latoudis v Casey (1990) 170 CLR 534; Hamdorf v Riddle [1971] SASR 398; Norton v Morphett (1995) 83 A Crim R 90; Stanley v Phillips (1966) 115 CLR 470; SA Police v Leonard (1995) 64 SASR 390, considered.

P, J v POLICE
[2018] SASC 173
LOVELL J:
Introduction

On the second day of the trial of JP (‘the appellant’) on a charge of Aggravated Assault against a Spouse, the prosecution withdrew the charge. The appellant sought indemnity costs against the prosecution in the sum of $54,900. The Magistrate declined to award indemnity costs and awarded costs in the sum of $9,000. The appellant seeks to overturn that decision.
Background
The appellant was charged with one count of Aggravated Assault against a Spouse contrary to section 20(3) of the Criminal Law Consolidation Act 1935. It was alleged by the prosecution that the appellant had assaulted his wife (‘the complainant’) by pushing and pulling her in their matrimonial home on Christmas Eve 2016.
The complainant was the main witness for the prosecution. She gave evidence on the first day of trial, detailing a history of domestic abuse at the hands of the appellant, ending with the alleged assault the subject of the charge. Cross-examination by Senior Counsel for the appellant disclosed inconsistencies in the complainant’s evidence. The appellant, who at the time of the alleged assault was recovering from foot surgery, raised the issue of self-defence. When the police attended shortly after the altercation they noted the appellant had a ripped t-shirt. It was common ground that following the complainant’s evidence the prosecution was invited to have discussions with a defence witness before the trial resumed. Prior to the resumption of the trial on the second day the prosecutor withdrew the charge against the appellant.
Before the Magistrate the appellant submitted that the prosecution withdrew the charge due to the destruction of the complainant’s credibility in cross-examination. The prosecution denied that allegation and submitted that the decision was made in accordance with prosecutorial guidelines, following both the complainant’s evidence and after the receipt of new evidence at the end of the first day of trial.
The appellant applied for an order as to costs in the amount of $54,900. This figure indemnified the appellant for the costs of the proceedings including briefing Senior Counsel, junior counsel and obtaining expert evidence. While the prosecution conceded the appellant’s entitlement to costs, they rejected that the circumstances warranted an award on an indemnity basis. The prosecution submitted that the appellant should be awarded costs of $6,010 ($5,600 plus GST) in accordance with the Scale of Costs (‘the Scale’) under the First Schedule of the Magistrates Court Rules 1992 (Criminal) (‘MCCR’).
Legal Principles
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) and is by way of rehearing. As it is an appeal against a discretionary order, error must be identified in one of the circumstances identified by House v The King:[1]
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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[2]
(Citations omitted)
[1] (1936) 55 CLR 499.
[2] House v The King (1936) 55 CLR 499, 504-5.
Although dealing with an appeal against sentence, in AB v The Queen Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy.[3] He observed:
The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:
"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."
Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King:
"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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.^[4]
(Citations omitted)
[3] (1999) 198 CLR 111.
[4] AB v The Queen (1999) 198 CLR 111 at [129]-[130].
An order made by a Magistrate will not be disturbed on appeal merely because the appellate court would itself have reached a different result.
Section 189 of the Summary Procedure Act 1921 (SA) provides the Court with unfettered discretion to make an award of costs provided it is exercised judicially:[5]
[5] Latoudis v Casey (1990) 170 CLR 534.
189 – Costs generally
Subject to sections 189A and 189D (inclusive), the Court may award such costs for or against a party to a proceedings as the Court thinks fit.
Rule 51 of the MCCR empowers a Magistrate to award costs as follows:
51.00 COSTS
51.01 Subject to these Rules, the provisions of any Act or to any order of the Court, a successful party in any action is entitled to costs against an unsuccessful party.
51.02 For the purposes of this Rule, a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
There is no dispute as to the entitlement of the appellant to an award of costs; in dispute is the basis for the award.
A court has a wide discretion as to costs. A court may allow costs on an indemnity basis or on a party and party basis as applied in the civil court.[6] However a court is not bound to adopt one or other of these approaches. The discretion is unfettered but must be exercised judicially.[7] It has been held that to justify an award of indemnity costs “special” or “exceptional” circumstances must exist.[8] The Scale of Costs as set out in the First Schedule to the MCCR operates as a guide to determining an appropriate order as to costs subject to a contrary order by a Court.
[6]    Hamdorf v Riddle [1971] SASR 398.
[7]    Latoudis v Casey (1990) 170 CLR 534 .
[8]    Konieczka v Police [2006] SASC 288 per Perry J.
In Curnow v Police,[9] Debelle J observed:
Section 189(1) invests the Magistrates Court with a general discretion as to costs. That discretion operates not only as to whether it is proper to make an order as to costs but also as to the amount of those costs: Ling v Police. When Ling was decided, s 189 was the only provision governing the issue of costs in the Magistrates Court. That position has now changed. On 6 May 2004 Rule 51 was made. Section 49(1)(e) of the Magistrates Court Act authorises the Magistrates Court to make rules of court regulating costs. Rule 51 was made in the exercise of that power. Rule 51.03 cannot and does not qualify the general discretion as to the costs vested in a magistrate by s 189(1). I repeat, a rule of court cannot alter the operation of a provision in an Act of Parliament in the absence of some authority in that Act to do so. Rule 51.03 is complementary to s 189(1). Rule 51.03 does not purport to regulate the question whether an award as to costs should be made. Instead, Rule 51.03 assumes that an order has been made that costs are to be paid by one party to another. The purpose of Rule 51.03 is simply to provide one means by which the court may assess the amount of costs to be paid. It does so by prescribing a scale which is to operate in the absence of an order to the contrary. At the same time, a magistrate has a discretion whether to order that costs be assessed on a basis other than that in the First Schedule.
The prescription of a scale of costs is a means frequently adopted for the purpose of assessing what is reasonable compensation for costs incurred. The prescription of a scale is not, nor is it perceived to be, an unwarranted fetter on the exercise of a discretion as to costs. Instead, it is the court’s measure of what is a reasonable award of costs. Nevertheless, Rule 51.03 invests a magistrate with a discretion to depart from that scale in the First Schedule when the magistrate believes that it is appropriate to do so.
The expression “subject to any order of the court to the contrary” which introduces Rule 51.03 is a familiar formula not infrequently used in relation to orders as to costs. It does not establish a presumption that must be displaced but instead leaves the discretion as to costs at large: Fordyce v Fordham (2006) 67 NSWLR 497 at [84]; Pentroth Pty Ltd v Kirschild Pty Ltd (2006) 96 SASR 129 at [24]-[27]; Pericic at [17]. Rule 51.03 does not, therefore, displace or circumscribe the overall discretion as to costs vested in the Magistrates Court. It does no more than require the magistrate to consider all relevant circumstances and decide whether costs should be assessed on some basis other than that provided by the First Schedule. The relevant circumstances will include such matters as whether the proceedings were complex, the nature of the issues, the length of the hearing and the conduct of the parties. In short, the magistrate will have regard to all factors relevant to the determination of an appropriate order as to costs. [10]
[9] [2008] SASC 84.
[10] Curnow v Police [2008] SASC 84 at [14]-[16].
Appellate courts should not interfere with the discretion of a Magistrate, unless the discretion has been exercised capriciously or involved irrelevant considerations.[11]
[11] Norton v Morphett (1995) 83 A Crim R 90 at 458.
Reasons of the Magistrate
The Magistrate began his task of assessing the appropriate quantum of costs by briefly outlining the history of the matter. He noted that the prosecutor had given no reason for the withdrawal of the charge and that it was “fair to say” that the complainant “did not fare well in cross-examination”.
The Magistrate correctly identified the appropriate legal principles to be applied. While he noted that the First Schedule was intended to be the “norm” for costs, if the costs based on the Schedule are “inadequate’ then the Court is at liberty to order costs be assessed on some other basis. The Magistrate also correctly identified that an award of indemnity costs should only be made where there are exceptional circumstances.
Before the Magistrate the appellant relied on the following factors to demonstrate that indemnity costs should be awarded:
1.Failure of prosecution to disclose on 29 December 2016 the complainant had signed a form seeking to withdraw the matter.
2.That prosecution was put on notice that indemnity costs would be sought and that matter was vehemently contested.
3.That the investigation diary was not disclosed which recorded the opinion of a police officer that the complainant was misusing the intervention order and both were antagonists
4.That the defendant would be seeking an expert report with respect to the age of bruises photographed on the complainant.
5.That the matter did not have a reasonable prospect of success having regard to the defendant’s recent surgery and vulnerable state.
6.That it was appropriate to brief senior counsel having regard to the defendant’s occupation as a school teacher.
After considering the above factors, the Magistrate determined the case was not so exceptional to justify an award of full indemnity:
In my view, none of the matters warrant an award of costs on an indemnity basis. Prosecution acted in this matter appropriately. I am not satisfied that Prosecution acted with a willful disregard to the facts or that there was any misconduct….
The Magistrate declined to order that the prosecution pay the cost of Senior Counsel. He stated:
This matter was not one of seriousness or complexity…It can be fairly described as typical of matters to be heard in this court.
The Magistrate also stated:
The expert’s report in relation to bruising was not a reasonable and necessary expense on a party/party basis. It is not common for evidence of this nature to be introduced in matters such as this.
There was, in fact, no expert report. The appellant had notified the prosecution that Professor Winskog may be a witness for the defence. Professor Winskog was to give evidence relating to the “bruising” alleged to have been suffered by the complainant. The claim was for the cost of a conference with Professor Winskog. I deal with this aspect of costs later in these reasons.
The Magistrate determined that, utilizing the First Schedule Scale, the appellant was entitled to $6,010 on a party and party basis.
The Magistrate proceeded to consider whether an award of costs between the First Schedule and a full indemnity might be sufficient. Ultimately, the Magistrate accepted that the case warranted an award of costs above the Scale. He stated:
I am prepared to allow some additional amount with respect to the preparation of the summons and the taking of witness statements. I order that the prosecution pay the defendant’s costs in the amount of $9,000 inclusive of GST.
It is accepted by the appellant that the Magistrate awarded costs above the Scale by $2,171.82.
Grounds of Appeal
The appellant appealed on the following 7 grounds:
1. The learned Magistrate erred in principle by failing to take in account the unusual and exceptional nature of how the prosecution case unfolded, whereby the credibility of complainant was destroyed in cross-examination such that the prosecution withdrew the charge at the end of its case.
2. The learned Magistrate erred in principle, and in fact, by failing to have regard to the grave consequences for the appellant if he was convicted of the charge.
3. The learned Magistrate erred in principle by treating his determination that an indemnity costs order was not appropriate as foreclosing the issue as to the appropriate quantum of counsel fees, namely that they would only be allowed according to the Scale.
4. The learned Magistrate erred in principle in his determination of whether the fees of Senior Counsel should be allowed.
5. The learned Magistrate erred in principle in his determination of whether the fees of two counsel should be allowed.
6. The learned Magistrate erred in principle in his determination of whether the fees of the appellant’s instructing solicitor attendance at the trial should be allowed.
7. The learned Magistrate erred in principle, and in fact, in his determination of whether expenses incurred in relation to an expert should be paid by the prosecution.
Ground 1
The appellant submitted that the circumstances of the case were ‘exceptional’ having regard to the prosecution’s late withdrawal; this followed the destruction of the complainant’s credibility in cross-examination. In such circumstances, the Magistrate ought to have found the case was so ‘out of the ordinary’ that it warranted an award of full indemnity.

The Magistrate clearly rejected that argument. The Magistrate specifically outlined in detail the developments of the case.[12] The Magistrate did not find that the complainant’s credibility was destroyed. He found that the case, in the way it was presented and prosecuted, was “typical of the matters to be heard in this court”. On my review of the transcript, the Magistrate was correct in so finding.
[12] I have discussed six key factors the Magistrate considered earlier in this judgment on page 3.
No error has been demonstrated. I dismiss this ground of appeal.
Ground 2
The appellant submits that the Magistrate failed to have proper regard to the grave consequences a conviction would have had on the appellant. The appellant is a school teacher and a conviction would potentially have grave consequences for his employment.
I reject this ground of appeal. The Magistrate specifically noted that Senior Counsel was retained because of the appellant’s occupation. It is clear from his reasons that he had regard to this factor. No error has been demonstrated.
I dismiss Ground 2.
Ground 3
Ground 3 relates to the process the Magistrate undertook in assessing the appropriate quantum of damages. While the appellant’s primary submission was for an order of indemnity costs, the appellant’s alternative argument was for an award of costs in excess of those on the Scale. Having determined that indemnity costs were inappropriate, the appellant submitted that the Magistrate failed to consider an order for costs in the “middle ground”, that is somewhere between full indemnity and those set out on the Scale.
It cannot be said that the Magistrate ignored the “middle ground”. The Magistrate, having noted that costs on the scale would amount to an award of $6,010 on a party/party basis, then proceeded to allow more for “the preparation of the summons and the taking of witness statements”. That is, he allowed an amount for costs exceeding the scale.
No error has been demonstrated. I reject Ground 3.
Ground 4 and 5
Grounds 4 and 5 both concern the costs of briefing counsel. The appellant submits that the Magistrate erred in principle by failing to order that the prosecution pay the appellant’s costs of briefing both Senior Counsel and junior counsel. The appellant contends that the Magistrate was required to answer the following 3 questions:
1. Was it appropriate to order the prosecution pay for two counsel?
2. In the alternative, was it appropriate to order that the prosecution pay the costs of Senior Counsel?
3. In the further alternative, was it appropriate for the prosecution to pay the costs of junior counsel?
The Magistrate considered that the case was not appropriate for Senior Counsel to be retained. He stated:
In my view it is not appropriate to order that prosecution pay the cost of senior counsel. This matter was not one of such seriousness or complexity that the cost of senior counsel should be awarded on a party/party basis.
In Beasley v Marshall (No 3),[13] King CJ considered when it might be appropriate to award costs to cover Senior Counsel:
What is necessary or proper to attain justice in such a system is what is necessary or proper for the adequate presentation of the party’s case to the court. It is well established that the question is not to be answered with the wisdom of hindsight but is to be judged as at the proper time for the delivery of briefs. The test propounded in the first limb of the rule, applied to the question of fees of senior counsel, may be paraphrased therefore as whether a reasonable litigant, at the proper time for the delivery for the briefs, would consider it necessary or at least prudent to brief Queen’s Counsel for the adequate present of his case. There is no conflict between the reasonable litigant’s desire to win and the test so understood because the test is not concerned with what a reasonable litigant might be prepared to do in order to win but with what such a person would judge to be necessary or prudent in order to have his case properly presented.[14]
[13] (1986) 41 SASR 321.
[14] Beasley v Marshall (No 3) (1986) 41 SASR 321 at 331.
The relevant determination for the Magistrate was not whether the appellant was prepared to brief Senior Counsel to ensure his success but whether a reasonable litigant would judge that the legal or factual issues required him to do so. In other words, were the expertise and experience of Senior Counsel reasonably necessary to ensure the proper presentation of the appellant’s case?[15]
[15] Stanley v Phillips (1966) 115 CLR 470 per 479.
The appellant pointed to the following combination of factors which he submits made it prudent to brief Queen’s Counsel for the proper presentation of his case:
1. There was a heightened need for strong cross-examination in this case dependent upon the complainant evidence.
2. There was a degree of factual complexity to the case demonstrated by the breadth of the evidence which spanned 18 years and the prior discreditable conduct notices which had been issued.
3. The appellant faced very grave consequences to his livelihood if convicted.
The Magistrate had regard to all relevant factors and he applied the correct legal test. The Magistrate concluded that it was not necessary on the factual and legal issues before him for Senior Counsel to be retained. No error has been demonstrated.
The appellant further submitted that the Magistrate failed to explicitly consider whether the prosecution ought to pay the costs of two counsel. I note that the Magistrate was not asked to consider the question of the costs of two counsel unless one was Senior Counsel.
The Magistrate allowed $2,500 in counsel fees (for two days) in addition to a fee on brief in accordance with the Scale. The clear inference to be drawn from his reasons, when read in their entirety, is that the Magistrate determined an award above the Scale was not appropriate for counsel. The Magistrate was clearly of the view that only one counsel was necessary.
The appellant further submitted that the Magistrate ought to have allowed counsel fees at the rate exceeding the scale. It was submitted that the Magistrate’s failure to do so was in breach of the general principle that party/party costs are awarded to cover the necessary or proper costs incurred.
I note that the Magistrate awarded $1,250 in counsel fees for each day of the trial in accordance with the Scale. I accept that such an order might be relatively low particularly in circumstances where the Scale has not been updated in over 8 years. However, this does not mean the Magistrate erred in exercising his discretion not to award costs on another basis. The discretion to award costs is broad and is not to be disturbed unless some error of principle or irregularity is disclosed.[16] I find that it was within the Magistrate’s discretion to assess the nature of the case, and determine whether an award with respect to counsel fees above the Scale was appropriate. The fact that others may have taken a different approach does not mean the Magistrate was in error. The appellant has not demonstrated any error by the Magistrate in taking this approach.
[16] SA Police v Leonard (1995) 64 SASR 390 at 394.
I dismiss Grounds 4 and 5.
Ground 6
The appellant submits that the Magistrate failed to consider whether the fees of the instructing solicitor’s attendance at court for the trial should be allowed. While the Magistrate awarded additional costs for preparation of summonses and the taking of witness statements, no award was made for the cost of attendance of a solicitor at the trial. Such a cost is not allowable under the Scale. As mentioned the Magistrate found that the matter was “typical of the matters to be heard in this court”. The Magistrate clearly considered all the matters claimed by the appellant. No clear reason was given as to why the presence of a solicitor was necessary at trial. There was nothing about this matter which suggests that he ought to have made such an allowance. No error has been demonstrated.
I dismiss Ground 6.
Ground 7
The appellant submits that the Magistrate erred in principle and in fact, in refusing to award costs for expenses incurred in relation to expert evidence.
Prior to trial, the appellant was advised that the prosecution intended to adduce photographs of bruising found on the complainant’s arms, thigh and chin. To challenge the strength of this evidence, the appellant sought an opinion from Professor Winskog. The prosecution was advised that Professor Winskog would give evidence that the bruising was “non-specific”, that the police photographs were poor and the “ageing” of the bruises was unreliable. While no expert report was obtained, the appellant sought costs paid to Professor Winskog in the sum of $605.
The Magistrate determined that an expert report was not a reasonable and necessary expense. The Magistrate stated that “it was not common for evidence of this nature to be introduced” in these types of matters. The Magistrate did not award any amount to cover the payment to Professor Winskog.
The Magistrate was in error in suggesting the amount paid was for a “report”. I consider that his reason for rejecting any payment, namely that it was “uncommon for evidence of this nature” to be tendered in this type of proceedings discloses error. It is not entirely clear what the Magistrate meant by that comment. The prosecution intended to tender photos of bruising. The photographs would only be admissible if they were probative of a fact in issue. In this case, no doubt, they would have lent some support to the complainant’s version of events. In those circumstances, it was reasonable and proper for the appellant to adduce evidence to rebut the significance of the injuries depicted in the photographs. Whether it is uncommon for evidence of this nature to be given in a case or not is not a basis for rejecting the claim. The appellant intended to call evidence to cast doubt on an aspect of the prosecution case. In my view it was a reasonable and necessary expense.
The respondent submitted that in some way the Magistrate had accounted for the cost of Professor Winskog’s opinion in the allowance he made for “preparation of summonses and the taking of witness statements”. I reject that submission. The Magistrate dealt with Professor Winskog payment separately in his judgment; he made no allowance for the cost of Professor Winskog’s opinion.
The Magistrate erred in his reason for rejecting this aspect of the claim. I would allow the appeal on this ground.
Exercise of the discretion afresh
Given the appellant has demonstrated an error in the approach of the Magistrate I must exercise the discretion afresh. The appellant however has not established, apart from Ground 7, any factual errors in the approach of the Magistrate. The Magistrate found, and he is in the better position than me to do so, that this case was typical of the type of cases heard in the Magistrates Court. I accept his assessment of that matter.
I would exercise my discretion in the same way as the Magistrate apart from the payment to Professor Winskog and the assessment of counsel fees.
While I do not consider the Magistrate erred as a matter of principle in his approach to counsel fees I have to exercise the discretion afresh and I would exercise my discretion differently. I consider on the facts of this case that, given the potential consequences of a conviction on the appellant’s employment, it was reasonable for him to consider engaging a more experienced junior counsel. The Magistrate allowed a fee on brief of $800 and a daily fee of $1,250 as per the scale.
In my view, the facts of this case enable me to depart from the scale of costs. I would award $1,250 for a fee on brief and $1,750 per day to allow for more experienced counsel to be retained.
I would increase the award of costs by $2055 to reflect the increase in the allowance for counsel and for Professor Winskog’s fees.
Scale of Costs
The Scale of Costs has not been amended for 8 years. I make the following observations.
It is important to bear in mind the reason that costs, in some criminal cases, can be claimed. In Latoudis v Casey,[17] the majority of the High Court held, as a general rule, a successful defendant in summary proceedings against whom a prosecution has failed is entitled to be indemnified for the costs he has incurred. As Mason CJ observed:
In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs.[18]
[17] (1990) 170 CLR 534.
[18] Latoudis v Casey (1990) 170 CLR 534, 542.
An order for costs indemnifies the successful party in proceeding in respect of liability for professional fees and out of pocket expenses reasonably incurred in connexion with the litigation.[19] The order is not made to punish the unsuccessful party; rather its function is compensatory. The costs are restricted, in the ordinary course, to reasonable costs.
[19] Latoudis v Casey (1990)170 CLR 534 per McHugh J at 566.
As Debelle J observed in Curnow v Police “the prescription of a scale is not, nor is it perceived to be, an unwarranted fetter on the exercise of a discretion as to costs. Instead, it is the court’s measure of what is a reasonable award of costs.”[20]
[20] Curnow v Police [2008] SASC 84 at [15].
In Konieczka v Police Perry J (with whom Nyland and Sulan JJ agreed) observed: [21]
Neither do I think it appropriate to depart from the scale in the First Schedule simply because an argument could be advanced, as was put on the hearing of the application, that it has perpetuated a level of fees which, over the course of time, has failed to keep pace with the actual costs charged by legal practitioners.
In an affidavit of Mr Craig Caldicott, solicitor for the applicant, filed in support of the cross-appeal, he complained that:
11.1 Costs as set out as per the Magistrates’ Court Criminal Scale (Schedule 1) are uncommercial when compared to the actual cost of costs incurred by clients and rendered by legal practitioners.
…
11.4 …that the Magistrates’ Guide to fees, namely the Magistrates’ Court Criminal Scale of Costs, is wholly inadequate and does not reflect an appropriate scale for work undertaken.
If the First Schedule costs have drifted out of touch with the actual costs of litigation, that may justify a review of the schedule, but the level of fees in the schedule must remain the norm unless it is amended.[22]
[21] [2006] SASC 288.
[22] Konieczka v Police [2006] SASC 288 at [30]-[32].
I agree with the remarks of Perry J. The Scale of Costs is the court’s measure of what is a reasonable award of costs and must remain the “norm” unless amended. It is likely that the First Schedule Costs, after 8 years, has “drifted out of touch” with the actual costs of litigation and a review of the Scale is, in my view, warranted.
Order
The Magistrates order for costs is set aside.
I would award costs in the sum of $11,055.00.
I will hear the parties on the question of costs of the appeal.