Police v Konieczka
[2006] SASC 183
•28 June 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v KONIECZKA
[2006] SASC 183
Judgment of The Honourable Justice Duggan
28 June 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT
Costs awarded to respondent (defendant) following his acquittal in the Magistrates Court on a charge of assaulting his wife - magistrate found that allegation concocted - hearing completed within one day - previous adjournment of trial on application of prosecution - costs of $12,000 awarded to respondent - appeal by prosecution against quantum of costs - cross-appeal by respondent on ground that costs should have been awarded as between solicitor and client.
Held: appeal allowed and order for costs in sum of $7000 substituted - cross-appeal dismissed.
Summary Procedure Act 1929 s 189(1); Magistrates Court Rules 1992 Rule 51, referred to.
Hamdorf v Riddle [1971] SASR 398; Latoudis v Casey (1990) 170 CLR 534; Norton v Morphett (1995) 83 A Crim R; Haslam v Emu Air Charter Pty Ltd, McKean and Johnstone (1998) 200 LSJS 456, discussed.
POLICE v KONIECZKA
[2006] SASC 183Magistrates Appeal
Duggan J. The appellant has appealed against the quantum of an order for costs made against the prosecution in a matter dealt with in the Adelaide Magistrates Court. The respondent has cross-appealed against the same order.
The costs were awarded following the acquittal of the respondent on a charge of assaulting his wife (the complainant). There is no challenge to any of the findings made by the magistrate in his reasons for dismissing the charge. The respondent, the complainant, and their niece who was visiting from Germany, were present in the house occupied by the respondent and the complainant at the time of the alleged incident. The complainant and the niece gave evidence for the prosecution. The respondent and character witnesses gave evidence for the defence.
At the time of the incident, the respondent and the complainant were involved in divorce proceedings. The magistrate found that the allegation of assault was a deliberate fabrication by the complainant. He concluded that the complainant wanted her husband out of the matrimonial home. The magistrate said he was “perfectly satisfied” with the version presented by the respondent.
The respondent applied for costs in the sum of $17,990.
The magistrate gave the following reasons for his order as to costs:
The consequences of a conviction to the defendant would have been disastrous. The defendant laid his cards on the table right from the start. It is easy to be wise after the event but in my view there was little prospect of success from the informant’s point of view. I found that the allegation of an assault had been fabricated. I do not and will not resile from that finding.
I order that the informant contribute $12,000 towards the defendant’s costs.
The appellant has complained that the amount awarded was too high, particularly as the trial itself lasted for only one day. The respondent, in his cross-appeal, has claimed that costs should have been awarded on an indemnity basis.
The Summary Procedure Act 1921 provides for a wide discretion in the making of costs orders in summary proceedings. Section s 189(1) states:
Subject to this section, the Court may award such costs for or against a party to proceedings as the court thinks fit.
Rule 51 of the Magistrates Court Rules 1992 provides as follows:
51.01Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02For the purpose 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.
51.03Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
This rule came into effect on 6 May 2004.
Schedule 1 provides a costs scale for use in making orders as between party and party. In so far as it is relevant to the present matter, the scale provides as follows:
Notes:
1This cost scale is intended for use in making orders as between party and party.
2The fees set out in item 1 and 2 are intended to cover all necessary attendances and preparatory work for a trial (other than attendance at a pre-trial conference). Where an attendance is unnecessary as a result of default by one or other party, an order should be sought and made at that hearing. The fee set out in item 4 or 5 should be used for that purpose.
No.
Item
Represented by solicitor
Represented by non-legally qualified person
1
Instructions, including all preparation for trial and attendances up to, but not including attendance at Pre Trial Conference
$600
$150
2
All aspects not otherwise specified from Pre-Trial Conference to Trial, including proofing witnesses, advice or evidence and law (solicitor and counsel) and delivering brief to counsel.
$600
$150
3
Attendance at Pre-Trial Conference
$150
$25
4
Attendance at hearing (see note 2 above)
$60
$15
5
Attendance where detailed argument is necessary (see note 2 above)
$100
$25
6
Arranging attendance of witnesses (including issue and service of summons if necessary) – per witness
$40
$10
Counsel fees
7
Fee on brief, to include attendance for plea or withdrawal (if separate counsel briefed)
$400
8
Each day
$600
$150
Rule 51.01 reflects the view which this court took in Hamdorf v Riddle [1971] SASR 398. There it was held that courts of summary jurisdiction –
… should, in a general way, exercise their discretion as to costs in the way in which it is exercised in the trial of a civil action, but without discriminating between the costs of successful complainants and successful defendants at least to any greater extent that the civil court distinguish between the costs of successful plaintiffs and successful defendants. (402)
There is no dispute in the present case as to the entitlement of the respondent to an award of costs; it is the basis on which that award should be made and the quantum which are in dispute.
I have said that the court is given a wide discretion as to costs. Included in the approaches open to the court would be to allow costs on an indemnity basis or on a party and party basis as applied in the civil court. However, the court is not bound to adopt one or other of these approaches.
It has been argued in some cases, that in Latoudis v Casey (1990) 170 CLR 534 the majority of the court were of the view that, in summary proceedings, it was appropriate, as a general rule, to award costs to a successful party on an indemnity basis. However, in Norton v Morphett (1995) 83 A Crim R it was pointed out that, although expressions such as “indemnity” and “indemnify” were used in some of the judgments in Latoudis, the members of the court were expressing the circumstances in which an order for costs should be ordered in the first place and not the quantum of those costs.
See also Haslam v Emu Air Charter Pty Ltd, McKean and Johnstone (1998) 200 LSJS 456.
Rule 51.03 of the Magistrates Courts Rules reflects the general rule that party and party costs are appropriate for an award of costs to a successful party unless there are special circumstances in the case such as to justify full indemnity. The magistrate was of the view that full indemnity was inappropriate and there is no ground for interfering with the exercise of his discretion in this respect.
Accordingly, the cross-appeal must be dismissed.
However, the quantum of the award is challenged by the appellant. It must be acknowledged that the magistrate was exercising a discretion in fixing the amount of costs to be awarded to the respondent and that appellate courts will not interfere with the decision of a magistrate on such an issue unless the discretion is exercised capriciously or by reference to irrelevant considerations: Norton v Morphett at 458.
The magistrate’s reasons for awarding costs against the appellant in the sum of $12,000 are set out above. The amount claimed was approximately $17,900.
The material before the magistrate consisted of a series of accounts which provided limited detail as to the nature of the services for which the fees were charged. The magistrate made no reference to the scale of costs in Schedule 1. The award of costs sought was high having regard to the nature of the case.
As I had some concern about the basis upon which the discretion was exercised, I requested more information concerning the services for which the fees were charged. One consequence of the further enquiry was the discovery of an inadvertent double counting of an amount of $693.00. This is not a matter which would affect the result to any significant degree, but it does illustrate the importance of carefully perusing the details of a large claim for costs.
It is important to record some aspects of the history of the case.
The respondent first appeared before the Magistrates Court on 8 June 2004. There followed a series of appearances before the court for various purposes. On 15 July 2004, the matter was remanded to 5 August 2004 so as to permit negotiations before the taking of a plea.
When the appellant appeared before the court on 5 August, a pre-trial conference was ordered. The pre-trial conference took place on 23 September 2004 when the matter was set down for a trial, which was to take place on 21 March 2005. A further pre-trial conference took place on 21 October 2004 when the hearing date was confirmed.
The trial did not proceed on 21 March 2005. The court granted an adjournment on the application of the prosecution to arrange for the personal attendance of a witness resident in Germany or, alternatively, to arrange for a video-link for that witness. The matter was remanded to a listing conference on 7 April 2005.
At the conference on 7 April 2005, the matter was set down for a one day trial to take place on 5 September 2005. The trial proceeded on that date and occupied the full day.
The respondent was represented throughout by a solicitor who briefed counsel. Counsel attended on a number of the court appearances.
Counsel fees amounted to $9603. Solicitors’ fees of $7621 made up the total of $17,224 charged to the respondent.
Counsel for the respondent has now tendered a schedule, which provides a comparison of the fees charged by him with the amounts which would be allowed on a party and party basis under Schedule 1. The amount of $9603 charged by counsel includes GST. An amount of $2660, which does not include GST, would be allowed under Schedule 1.
It must be said that no criticism is made of the level of counsel fees and solicitors’ charges which were actually charged to the respondent. This was a matter for agreement between the respondent and his legal advisers. However, the magistrate awarded approximately 70 per cent of the total amount charged to the respondent as costs against the appellant. If this percentage is applied to counsel fees, an amount of approximately $6700 was awarded to the respondent as compared with $2660 which would have been allowed on a party and party basis under the scale.
Strictly speaking, a good deal of the solicitors’ work would come within the items set out in the scale of costs in Schedule 1, which makes no distinction between counsel and solicitors’ fees. However, I think it was appropriate in the circumstances of the case to allow an additional amount for solicitors’ fees, particularly for those services not covered by the scale.
I agree that it was open to the magistrate in the circumstances which he outlined in his reasons as to costs to make an award higher than the scale, but not to the extent allowed by the magistrate.
In my view, the amount allowed for counsel fees should have been $4000 and the amount allowed for solicitors’ charges $3000.
The appeal will be allowed, the order as to costs made by the magistrate set aside and, in lieu thereof, there will be an order that the appellant pay the costs of the respondent fixed in the sum of $7000.
The cross-appeal will be dismissed.
3
1
1