Police v Leigep No. Scciv-03-1376

[2003] SASC 383

POLICE v LEIGEP
[2003] SASC 383

Magistrates Appeal

1. PRIOR J:              On 2 April 2003, a magistrate dismissed an application for a restraining order, first issued out of the Port Pirie Magistrates Court on 7 June 2000.  At the same time, the magistrate granted an application to revoke an order against the respondent in relation to another person.  That order was first made at Port Pirie on 27 March 2000.

2. Applications to revoke those orders were the subject of a hearing which commenced on 3 July 2002.  At that time, a hearing continued in relation to the confirmation of the restraining order applied for in June 2000.  The hearing was not concluded until 3 July 2002.  There were further adjournments.  The remainder of the hearing was listed for 2 April 2003.  On that occasion, the magistrate referred to the passage of time from when the application for restraining orders were first taken out, in the first part of 2000.  His Honour said that, “it now being April 2003 and no reports of alleged breaches of the orders, the prosecution may now have some difficulties in persuading the court to grant the application to confirm the interim order due to the delay”.  His Honour therefore granted the application made by the respondent’s counsel to revoke the order in relation to the restraining order issued in March 2000 and dismissed the application on the other matter.  Counsel then appearing for the respondent applied for costs.  At that time, the magistrate said:

   “I am of the view that the applications had some merit when they were filed by the applicants on 21 March and 7 June 2000 respectively.  It is through no fault of the prosecution that (the second) application has been dismissed and (the first) application revoked.  Any application for costs would face minimal chances of success.”

3. Counsel for the respondent asked that the matter be adjourned in order for the parties to file written submissions in relation to costs.  The matter was adjourned to 16 September 2003.  On that occasion, the magistrate made some remarks.  The prosecutor says that His Honour said that the police had acted reasonably in bringing the proceedings for restraining orders in both cases.  Nevertheless, His Honour ordered costs in favour of the respondent in the amount of $5000.

4. In the magistrate’s reasons on the court file, the magistrate says:

   “It is my view that this application for restraint orders was properly instituted and pursued by the complainant.  The matter resolved because of the effluxion of time.  In my view interim orders were properly made in the first instance, given the matters outlined in the supporting affidavits.

   The hearing of this matter had a very long history and it would have been difficult now for the complainant to prove an ongoing need for the continuation of the order.  In these circumstances the complainant sought to withdraw the complaint, quite properly.

   I am not satisfied that I would have made the findings outlined in the written submission filed in this matter in support of a claim for costs.

   There will be an order for costs in favour of the defendant but at a figure which I think represents a fair compromise.  In relation to that figure, costs will be fixed at the sum of $5000, payable by the complainant to the defendant.”

5. In this appeal, it is complained that the magistrate has erred.  By s 189 of the Summary Procedure Act 1921, a court may award costs for or against a party to proceedings in the Magistrates Court.  However, s 189(2a) expressly provides:

   “(2a)Costs will not be awarded against a complainant in proceedings for a restraining order unless the court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.”

6. I agree that the magistrate erred.  Absent an express finding by him that the complainant had acted in bad faith or unreasonably in bringing the proceedings there was no power to make the award.  The magistrate’s reasons lack the finding required to justify any award of costs.  The appeal is therefore allowed and the order for costs set aside.

7. The respondent failed to appear before I proceeded to hear the appeal and order that the appeal be allowed.  He arrived later in the morning.  I reconvened and gave him the opportunity to put anything he wished to put against the appeal being allowed.  I explained to him the reasons already given for allowing the appeal.  I told him I had read all that his counsel had put to the magistrate in support of the order for costs.  The respondent remarked that he had had enough and left the courtroom without making any submissions.