Police v Pericic - [2008] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PERICIC
[2008] SASC 59
Judgment of The Honourable Justice White
5 March 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
PROCEDURE - COSTS - SCALES OF COSTS
Respondent acquitted of assault - magistrate ordered that prosecution pay costs in the sum of $11,500 - no reasons provided by magistrate for costs decision - whether failure to provide reasons constituted an error of law - whether magistrate was justified in departing from the scale of costs.
Held: failure to provide reasons constituted an error of law - appeal allowed - order set aside - matter remitted to the magistrate for further consideration.
Criminal Law Consolidation Act 1935 (SA) s 39; Summary Procedure Act 1921 (SA) s 189; Supreme Court Act 1935 (SA) s 40; Justices Act 1921 (SA) s 77; Supreme Court Rules 1987 R 52.03; Supreme Court Civil Rules 2006 r 281(b); Magistrates Court Rules 1992 r 51, Sch 1, referred to.
Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; T v Medical Board (SA) (1992) 58 SASR 382; Papps v Police [2000] SASC 183; (2000) 77 SASR 210, applied.
Konieczka v Police [2006] SASC 288; (2006) 245 LSJS 458; Hamdorf v Riddle (1971) SASR 398; Pentroth Pty Ltd v Kirschild Pty Ltd [2006] SASC 356; (2006) 96 SASR 129, discussed.
Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497; Ling v Police (1996) 90 A Crim R 376; RSPCA v Gray (Unreported, Supreme Court of South Australia, Mullighan J, 14 August 1998, Judgment No S6792); Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454, considered.

POLICE v PERICIC
[2008] SASC 59
Magistrates Appeal

WHITE J: This is an appeal against an order by a magistrate fixing the costs to be paid by the prosecution to a defendant who was acquitted of a charge of assault. The prosecution was ordered to pay costs of $11,500. It appeals against that order.
As the appeal is limited to a question about costs, it lies only with the permission of this Court.[1] The respondent did not oppose permission being granted, and I granted that permission at the hearing of the appeal.
[1] Supreme Court Civil Rules 2006, r 281(b).
Background Circumstances
The respondent (the defendant at first instance) is a security officer. The prosecution alleged that on 26 November 2003 she had assaulted the complainant, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). The assault was said to comprise the grabbing of the complainant around her throat and a later kicking of her. The complaint was laid on 17 June 2004 and the matter originally listed for trial on 12 December 2005. A magistrate was not then available and the matter was adjourned for hearing to 14 February 2006. The trial proceeded on that day and the following day. On 15 February, in an ex tempore judgment, the magistrate found the respondent not guilty.
The magistrate then made an order that the respondent have her costs of the prosecution. The magistrate directed that the parties endeavour to agree the costs and, in the event of no agreement, gave the parties liberty to have the matter called back on for further argument.
The respondent claimed costs, including disbursements and GST, of $16,877.60. Of this, $7,920 was for counsel fees. The prosecution disputed that claim. It offered to agree the costs in the sum of $3,500, pointing out that if the costs were fixed by reference to the scale in Schedule 1 of the Magistrates Court Rules 1992, the respondent’s entitlement would be $3,270.
The respondent then applied to have the matter brought back on before the magistrate for argument. The argument on costs occurred on 31 October 2007. Mr Bey, the police prosecutor who had appeared at the trial, made submissions in opposition to the claimed cost order. The magistrate gave a decision later that day.
The endorsement on the Magistrates Court file records the order made by the magistrate as follows:
HH orders complainant to pay defence costs in the sum of $11,500 for transmission to Starke Lawyers’ Trust Account, GPO Box 1912, Adelaide.
There are two irregularities in relation to that order. First, it is common ground that the magistrate gave no reasons at all for fixing the costs in the sum of $11,500. The second irregularity is the way in which the magistrate made his order. The magistrate apparently gave his decision in the absence of the parties and, in relation to the prosecution, simply asked a police prosecutor who was then before him to inform Mr Bey of the outcome. This deprived Mr Bey of the opportunity to seek reasons immediately.
Later on 31 October, Mr Bey requested, in an appropriate way, that the magistrate provide formal reasons for his decision. He was told by the magistrate’s clerk that the magistrate did not propose to do so. The magistrate still has not done so.
The Grounds of Appeal
The prosecution appealed against the magistrate’s order on two grounds. First, the appellant relied upon the magistrate’s failure to give any reasons at all. Secondly, it was submitted that the case did not involve any exceptional circumstances justifying a departure from the scale of costs in Schedule 1 of the Magistrates Court Rules.
The Failure to Give Reasons
The content of reasons to be given for a judicial decision varies according to the circumstances and context of the decision being made. In relation to questions of costs, it is quite common for very succinct reasons to be given. That is because of the broad nature of the discretion usually being exercised. It would not have been at all surprising in this case if the magistrate had given only brief reasons for his decision. But the parties were entitled at least to brief reasons explaining why the magistrate thought it appropriate to depart from the scale in the Rules, and how it was that he had reached the figure of $11,500.
The purpose served by reasons for a judicial decision are well known and need not be repeated. I refer to Pettitt v Dunkley;[2] Soulemezis v Dudley (Holdings) Pty Ltd;[3] T v Medical Board (SA)[4] and Papps v Police.[5]
[2] (1971) 1 NSWLR 376.
[3] (1987) 10 NSWLR 247.
[4] (1992) 58 SASR 382.
[5] [2000] SASC 183; (2000) 77 SASR 210.
The failure by the magistrate to provide any reasons at all for his costs decision was an error of law.[6] That error requires the discretion with respect to the quantum of costs to be re-visited.
[6] Pettitt v Dunkley (1971) 1 NSWLR 376 at 382 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-59; Papps v Police [2000] SASC 183 at [33]; (2000) 77 SASR 210 at 218.
The Discretion with Respect to Costs
Both parties submitted that the matter should be remitted to the magistrate for the purpose of reconsideration. Subject to one matter, I agree that that course is appropriate. It would be very difficult for this Court, in the absence of reasons from the magistrate, to put itself in his position on a fresh consideration of the question of costs. The Court does not have a trial transcript. The magistrate’s ex tempore reasons for acquitting the respondent were brief and do not give a complete insight into the considerations bearing upon the discretion with respect to costs.
Section 189(1) of the Summary Procedure Act 1921 (SA) vests a wide discretion with respect to costs in the Magistrates Court. It provides:
Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.
It was not suggested that any of the following subsections qualified that wide discretion in a way which is applicable in this case.
Rule 51 of the Magistrates Court Rules provides as follows:
51.01 Subject 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.
51.02 For 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.
51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
The scale in the First Schedule came into operation on 6 May 2004, ie, just under two years prior to the trial at which the respondent was acquitted. I note that the same scale, without any amendment, continues to apply.
Unassisted by authority, I would have thought that s 189(1) and r 51.03 should be read together in the following way. Section 189(1) vests the general discretion with respect to costs in the court “subject to this section”. It does not make that discretion subject to any rule of the court. In this respect, s 189(1) differs from s 40 of the Supreme Court Act 1935 (SA). This suggests that a rule of the Magistrates Court cannot restrict the general discretion vested in the court by s 189(1). That being so, r 51.03 is to be read as establishing a default provision, ie, a scale which is to apply in those cases in which no contrary order is made by the court. It does not, however, establish a norm or a presumptive position which is to be departed from only in exceptional or special circumstances.
I would take the same view of r 51.03 as was taken by the Full Court in Pentroth Pty Ltd v Kirschild Pty Ltd[7] in relation to r 52.03 of the Supreme Court Rules 1987. Rule 52.03 provides for the costs consequences of a discontinuance of civil proceedings governed by the 1987 Rules. It is in the following terms:
Unless the Court otherwise orders or the parties consent, the party discontinuing or withdrawing shall pay the costs up until the date of delivery of the notice, of the party against whom the claim or defence was discontinued or withdrawn. No further order shall be required to enable the party against whom the claim or defence was discontinued to tax his costs.
The first sentence of r 52.03 provides, in effect, that absent a contrary court order, the discontinuing party is to pay the costs of the other up until the date of the discontinuance. In that respect, its structure is similar to that of r 51.03 of the Magistrates Court Rules.
[7] [2006] SASC 356; (2006) 96 SASR 129.
In Pentroth, the Full Court held that r 52.03 did not establish a norm, ie, a position which was to apply unless displaced in special circumstances. All it did was to establish the position which was to apply in the absence of any court order to the contrary. A number of considerations led to that conclusion. These included the absence of any indication in r 52.03 that it was intended to circumscribe the general discretion with respect to costs vested in the court by s 40 of the Supreme Court Act 1935 (SA), and the construction adopted of the New South Wales counterpart of r 52.03 in Fordyce v Fordham.[8] In the present case, as indicated above, there is no legislative warrant at all for a rule of the Magistrates Court to circumscribe the wide discretion with respect to costs vested in the Court by s 189(1).
[8] [2006] NSWCA 274; (2006) 67 NSWLR 497.
Rule 51.03 and Schedule 1 were introduced into the Magistrates Court Rules on 6 May 2004. Prior to that time, there had been a number of decisions of this Court which emphasised the width of the discretion vested by s 189(1) and of its predecessor provisions. In Hamdorf v Riddle[9] the Full Court, discussing s 77 of the former Justices Act 1921 (SA), said:
We think then, without attempting to fetter the discretion of courts of summary jurisdiction, that they 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 than the civil courts distinguish between the costs of successful plaintiffs and successful defendants.[10]
Later decisions have applied Hamdorf v Riddle in the context of s 189(1) of the Summary Procedure Act 1921 and have affirmed the width of the discretion. See, for example, Ling v Police;[11] RSPCA v Gray;[12] and Haslam v Emu Air Charter Pty Ltd.[13] Given these various judicial statements concerning the discretion, it might be thought surprising that a rule amendment could have the effect of circumscribing it.
[9] (1971) SASR 398.
[10] Ibid at 402.
[11] (1996) 90 A Crim R 376 at 384.
[12] (Unreported, Supreme Court of South Australia, Mullighan J, 14 August 1998, Judgment No S6792) at [73].
[13] (1998) 200 LSJS 454 at 455.
However, there is authority indicating that r 51.03 is to be construed as providing a presumptive position with respect to the amount of costs to be awarded, and that this presumptive position is to be departed from only in special or exceptional circumstances. Section 189(1) and r 51.03 were considered by the Full Court in Konieczka v Police.[14] The Full Court was considering an appeal concerning a costs order made in the Magistrates Court in circumstances which were similar to the present case. In relation to r 51.03, Perry J, with whom Nyland and Sulan JJ agreed, said:
It seems to me that the First Schedule costs are intended to be the norm, and departure from them must be based on something which clearly distinguishes the case from the norm.[15]
Later, Perry J said that “the level of fees in the Schedule must remain the norm unless it is amended”[16] and that “an award of costs at a level beyond the party and party scale set by the Rules should only be justified when there are exceptional circumstances”.[17]
[14] [2006] SASC 288; (2006) 245 LSJS 458.
[15] Ibid at [28]; 460.
[16] Ibid at [32]; 461.
[17] Ibid at [39]; 461.
On its face, Konieczka appears to suggest that the amount claimed by the respondent for costs in the present case is to be considered by inquiring whether there are, in the circumstances of the case, special or exceptional circumstances justifying a departure from the scale of costs fixed by Schedule 1. It seems, in other words, to have the effect of imposing a fetter on what would otherwise be the wide discretion to which the earlier authorities referred.
Konieczka will bind me, and the magistrate, on any reconsideration of the costs in this case. I haven not heard any argument on whether it is capable of being distinguished or whether, despite the passages quoted above, the discretion, provided it is exercised judicially, continues to be untrammelled. If there is an inconsistency between Pentroth on the one hand, and Konieczka on the other, it is an inconsistency which can be resolved only by the Full Court. I did invite the parties’ attention to this issue but neither requested a referral of the matter to the Full Court.
Conclusion
Both counsel submitted that the appropriate course, if I was satisfied that the magistrate’s failure to give reasons was an error of law affecting his decision, was to remit the matter to the magistrate for further consideration.
In those circumstances, the appeal is allowed, the magistrate’s order of 31 October 2007 with respect to costs set aside, and the matter is remitted to the magistrate for further consideration.