Police v ROGERS
[2017] SASC 193
•21 December 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ROGERS
[2017] SASC 193
Judgment of The Honourable Justice Peek
21 December 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE - PARTICULAR CASES - DECISION AS TO COSTS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - WITHDRAWAL OR STRIKING OUT OF INFORMATION OR COMPLAINT
Appeal against a Magistrate’s refusal to make an order for costs in favour of an unrepresented defendant subsequent to the withdrawal of a complaint against him.
The appellant was charged on complaint with speeding contrary to Rule 20 of the Australian Road Rules and s 79B if the Road Traffic Act 1961 (SA). At the commencement of the trial in the Magistrates Court, and after five hearings had occurred in the matter including a case listing conference, the police prosecutor, without warning to the defendant, applied for permission to withdraw the charge. Without discussion with the defendant, the Magistrate granted permission to withdraw the complaint. The appellant, who was unrepresented throughout the Magistrates Court proceedings and on appeal, then applied for costs, but the Magistrate refused the application on the basis that he was unrepresented and therefore not entitled to legal costs.
The appellant appeals against this refusal. The respondent asserts that this Court lacks jurisdiction to hear the appeal under s 42 of the Magistrates Court Act 1991.
Held per Peek J, allowing the appeal:
(1) This Court has jurisdiction to hear the appeal under s 42 of the Magistrates Court Act 1991.
(2) Whether a costs order is an “interlocutory judgment” within the meaning of s 42(1a) will depend on the facts of the case, including the stage of the proceedings at which the order is made and whether or not the matter to which the costs order relates is being finally disposed of. The costs order made here is not an “interlocutory judgment” because, amongst other reasons, the prosecution was, as a matter of law, unable to lay a further charge subsequent to the withdrawal and the order permitting the withdrawal of the complaint and associated costs order finally disposed of the rights of the parties in the action.
(3) The decision in McKelliff v Police [2002] SASC 269 should not be followed.
(4) The Magistrate fell far short in discharging his obligations to the unrepresented appellant in failing to advise him of his right to either oppose the application to withdraw the complaint or seek the payment of his expenses as a condition of a withdrawal of the charge.
(5) The obiter statement concerning the construction of s 69 of the Summary Procedure Act 1991 in Collis v Magistrates Court (2008) 101 SASR 332 at 338 should not be followed.
(6) The Magistrate erred in interpreting the appellant’s application for “costs” as meaning an application for legal costs; the appellant was clearly applying for whatever monetary sum was available to him.
(7) The appellant was entitled to a monetary award for amounts referable to necessary disbursements, travelling expenses to and from court and other out-of-pocket expenses, plus some allowance for time actually occupied in appearing before the Court.
(8) The appellant is awarded: $420 in costs for his six attendances in the Magistrates Court; and the costs of the present appeal.
Road Traffic Act 1961 s 79B; Australian Road Rules R 20; Magistrates Court Act 1991 s 42; Summary Procedure Act 1921 ss 52, 69; Supreme Court Civil Rules 2006 R 286; Magistrates Court (Criminal) Rules 1992 R 26, referred to.
McKelliff v Police [2002] SASC 269; Collis v Magistrates Court (2008) 101 SASR 332, not followed.
Hall v Nominal Defendant (1966) 177 CLR 423; Svingos v Deacon (1971) 2 SASR 126; Grey v City of Charles Sturt [1999] SASC 224; Sullivan v Police [2000] SASC 171; Willing v Hollobone [1972] 2 SASR 434; Willing v Hollobone [1972] 3 SASR 532; Bishop v Cody [1939] VLR 246; R v Phipps, ex parte Alton [1964] 2 QB 420; Turner v Randall [1988] 1 Qd R 726; Cooper v Grave [1997] TASSC 22; Lawson v Wallace (1968) 3 NSWR 82; Lay v Cleary (Unreported, Supreme Court of New South Wales, James J, 23 February 1993); Jennings v Kelly [1940] AC 206; Stamp Duties, Commissioner of (NSW) v Atwill (1972) 126 CLR 665; Kelly v Noumenon Pty Ltd (1988) 47 SASR 182, discussed.
In re Page; Hill v Fladgate [1910] 1 Ch D 489; Schneider v Curtis [1967] Qd R 300; Obeid v The Queen [2016] HCA 9; Heinrich v Curtis & Ors [2006] SASC 264; MG v Police [2010] SASC 268; Watson v Police [2016] SASC 123; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; R v Redbridge Justices, ex parte Sainty (1981) RTR 13; Tunnicliffe v Tedd (1849) 5 CB 553; 136 ER 995; Hill v Pinnock (1879) 1 QLJ (Supp) 45; Willis v Magistrates Court of Victoria (1996) 89 A Crim R 273; The Queen v Kent (1970) 17 FLR 65; Leveridge v Kennedy [1960] NZLR 1, considered.
POLICE v ROGERS
[2017] SASC 193Magistrates Appeal: Criminal
PEEK J.
PART 1: INTRODUCTION
The appellant was charged on complaint with speeding contrary to Rule 20 of the Australian Road Rules and s 79B of the Road Traffic Act 1961 (SA). At the commencement of the trial in the Magistrates Court at Mount Barker, the police prosecutor applied for, and was granted permission to withdraw the charge. The appellant then applied for “costs” but the Magistrate refused the application on the basis that he was unrepresented and not entitled to legal costs.
The appellant appeals against this refusal. The respondent contests the appeal on various grounds, the most important being the assertion that this Court lacks jurisdiction to hear the appeal under s 42 of the Magistrates Court Act 1991 (SA) (the Act).[1] I find that this Court does have jurisdiction and that the appeal succeeds. My reasons follow.
[1] The respondent also asserts that no error in the Magistrate’s approach is demonstrated, and that in any event, the quantum of costs claimed is excessive.
The Magistrates Court proceedings
The following summary of facts is taken from the affidavit of the appellant tendered on the appeal and also a number of statements made by the appellant during the hearing mainly in answer to my specific questions. As to these statements, they appeared genuine and truthful. Counsel for the respondent was, on several occasions, offered the opportunity of having the appellant enter the witness box to repeat the statements and be cross-examined but stated that he accepted the statements and did not wish to cross-examine on them.
On 21 April 2016, the appellant was issued an expiation notice alleging that he had been detected speeding at 10 to 19 kilometres per hour over the sign posted speed limit on 17th of April 2016 at Nairne (the alleged offence). He requested to view the photographic evidence and, after doing so, elected to be prosecuted. On 9 August 2016, police charged the appellant on complaint with the alleged offence.
The appellant appeared unrepresented throughout the proceedings in the Magistrates Court at Mount Barker. He first appeared in court on 15 September 2016 and the matter was adjourned to 16 November 2016.[2] On 16 November 2016, he travelled, as usual, from his home at Bellevue Heights to the court in his car but arrived early and sat on a bench in a nearby park to wait. While waiting, he became temporarily incapacitated, owing to his knee seizing up due to an old injury; he telephoned the police with his mobile phone and explained where he was, and what had happened. He was eventually able to walk to the court, but by that time the court had already adjourned his matter to 12 January 2017 in his absence. On 12 January 2017, the appellant appeared and confirmed that he was pleading not guilty. The matter was adjourned again for negotiations between the appellant and respondent. The appellant appeared again on 26 April 2017; he again confirmed that he was pleading not guilty and a pre-trial conference was listed for 15 June 2017. On 15 June 2017, the appellant appeared at the pre-trial conference. He again confirmed that he was pleading not guilty and the matter was listed for trial on 25 August 2017.
[2] The record of outcome from this hearing suggests that the reason for the adjournment was for the appellant “to negotiate with prosecution”, however the appellant submitted on appeal that this was incorrect; counsel for the Police did not contest this nor seek to cross-examine the appellant as to this fact. Nothing turns on this matter.
The charge is withdrawn by the prosecutor without notice to the appellant
The appellant attended the Mount Barker Magistrates Court on 25 August 2017 believing that his trial was to commence that day, as listed. He had been given no notice whatsoever by the police prior to that day that they intended to withdraw the charge; and no such notice was given to the appellant while he was waiting for the trial to be called on that morning.
When the trial was called on and the appellant took his place at the bar table, the police prosecutor without any notice to the appellant stood and simply said that he was withdrawing the complaint. No reason was given to the court or to the appellant.
The Magistrate then simply announced that the charge was withdrawn. His Honour did so without explaining to the appellant what was happening, or giving him the opportunity of either opposing the withdrawal or seeking that the payment of his expenses be made a condition of any such withdrawal.
The appellant made an application for “costs of attendance”. The Magistrate dismissed the application. His Honour at no stage asked the police prosecutor whether he opposed the application. The Magistrate later published his ex tempore judgment which, in full, is as follows:
I am not prepared to award costs. Costs are awarded to legal representatives, not to unrepresented persons. I decline to order costs.
Unsurprisingly, the appellant has appealed.
The Magistrates Court case-flow management regime
It has long been a matter of concern in South Australia (as elsewhere) that the court resources available in the criminal jurisdiction should be used as effectively as possible. In the Magistrates Court, a high priority has long been given to a case flow management regime designed to ensure, amongst other things, that cases are not set down for trial unless and until it is clear that a trial is necessary and will take place.
Rule 26 of the Magistrates Court Rules 1992 (Criminal) (SA) governs the pre-trial procedures for trials of summary offences. The overarching principles are contained in rules 26.01 to 26.02:
26.01Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law so as to:
(a) fully explore the possibility of disposing of the charge other than by way of trial;
(b) enable the duration of the hearing to be estimated as accurately as possible;
(c) determine what evidence if any may be proved by affidavit;
(d) facilitate the course of the trial;
and shall inform the Court as to each of the above.
26.02To the extent necessary to comply with this Rule the parties must confer fully and frankly. (Emphasis added)
To effectuate these objectives, the rules enable the court to convene for a pre-trial conference:
26.05To ensure compliance with Rule 8 and this Rule the Court may on notice to the parties require that they attend a pre-trial conference.
26.06 A pre-trial conference:
(a) shall be attended by counsel briefed to appear at the trial (or, if the attendance of any party's counsel is not practicable, by that party's solicitor);
(b) shall not be open to the public unless the Court directs to the contrary;
(c) may be presided over by such person as the Court may nominate.
26.07Nothing said by or on behalf of a defendant at a pre-trial conference and no failure by a defendant or a defendant's representative to answer a question at a pre-trial conference shall be used in any subsequent trial or shall be made the subject of any comment at that trial.
The rules also provide various procedural and time requirements to ensure that a trial is ready to proceed on its listed date. Rule 26.04 provides that “insufficient compliance with this Rule must be taken into account on the question of costs”.
A flouting of the case-flow management regime by the prosecution
One thing that this regime is designed to prevent is the leaving of negotiations between the parties (and a resulting disposition by withdrawal or plea of guilty) to the date of trial, with the resultant dislocation of the Magistrate’s list and waste of trial time. However sometimes, hopefully rarely, matters may occur such that, despite all proper attention to the relevant requirements, a case will be listed for trial but later withdrawn. In such cases, the inconvenience to the court and to the defendant may be partially mitigated by notice being given to the court and to the defendant as soon as possible ahead of the listed trial date of this intention. In such circumstances, the court can re-allocate the allocated trial time and the defendant is relieved of concern about the matter and may have the matter withdrawn without him further attending the court.[3]
[3] Although he may wish to do so if he has a claim for costs accrued prior to the date of notification of withdrawal.
Unhappily, it is necessary here to say that the behaviour of the police appears such as to constitute a deplorable flouting of the case-flow management regime. If the police could not prove their case, and the charge was to be withdrawn, the decision to withdraw should have been made prior to a pre-trial conference; there appears to have been no excuse for setting down the case for trial and later withdrawing it. Further, the situation here appears to be in the worst possible category, because no notice at all of an intention to withdraw was ever given to the court, or to the defendant prior to the listed date and time of trial. It was not until the defendant was in the court on the day of trial and, as he thought, about to give his formal plea of not guilty, that the police prosecutor simply stood up and “withdrew” the charge without a word of explanation or apology to the court or to the defendant. This very much smacks of sharp practice.
On the hearing of the appeal, counsel for the respondent was given every chance to address and explain the above matters. No justification or mitigation was forthcoming, as appears from the following portion of the transcript:
HIS HONOUR: Yes. Mr Van Schuilenburg, are you in a position to inform me as to why the charge was withdrawn in the way that it was, or at all for that matter?
MR VAN SCHUILENBURG: Well I think it was an acknowledgement that they thought that there would be difficulty in securing a conviction and as such they sought and obtained permission to withdraw the charges.
HIS HONOUR: That’s not telling me much, is it? It’s really avoiding the question really.
MR VAN SCHUILENBURG: That isn’t telling you much and I think, unfortunately I can’t tell you much.
HIS HONOUR: Well what justification is there, if any, for requiring a defendant to personally attend for the number of occasions that he did, one, two, three, four, five, six occasions on the assumption that you don’t dispute his explanation for 16 November – and I’d be pretty surprised if you did dispute that. But in any event, there are some six occasions there, in circumstances of a regime in the Magistrates Court which is designed to, as it were, make very sure that only trials that are going to go ahead do get a final listing. There’s a whole lot of supposedly failsafe methods leading right up and including a pre-trial conference, and yet here, this went through all of that and, according to the appellant – and there’s nothing at all inconsistent with what he’s told me – he got no notice at all and therefore had to fully prepare the trial, until the prosecutor bobs up and says ‘We withdraw’. Now, what’s the justification for that?
MR VAN SCHUILENBURG: I think it’s difficult to necessarily satisfy the entire tenor of your puzzlement about the way in which –
HIS HONOUR: No, I don’t know that I’m puzzled at all – I’m just giving you the opportunity to try and justify what seems to be unjustifiable.
MR VAN SCHUILENBURG: Yes, I think just a brief submission would be that ostensibly there was the decision taken that at an early stage they thought they could run a trial, but then development –
HIS HONOUR: How did it get through the pre-trial conference?
MR VAN SCHUILENBURG: How?
HIS HONOUR: Well, that’s when people’s minds are supposed to be concentrated on the matter, if not before that.
MR VAN SCHUILENBURG: Yes, I can’t speak to that.
HIS HONOUR: There’s no justification you can put forward then, is there?
MR VAN SCHUILENBURG: Yes, I can’t speak to that.
HIS HONOUR: No. Well I mean, you’ve known Mr – and this isn’t a criticism of you, because sometimes the unjustifiable can’t be justified – but I mean, you’ve known that this was a hurdle that you’re going to be facing; you would’ve known that you would be asked this in due course, because it’s a very stark situation; you’ve had an opportunity to seek instructions as to any justification, and you haven’t got any. That sums it up, doesn’t it?
MR VAN SCHUILENBURG: I don’t think it’s any justification that would satisfy your Honour.
HIS HONOUR: Well that’s a very vague term, because it’s contingent upon all sorts of subjective considerations, isn’t it?
MR VAN SCHUILENBURG: Yes. So the prosecution thought for quite a period, from what I understand, that they would be able to show that the defendant in the matter was the driver of the vehicle. After making inquiries, that wasn’t the case. As far as timeframes for that goes, obviously, putting aside a pre-trial conference, that was something that was developing over the initial phase of this prosecution, from what I understand.
HIS HONOUR: What’s the justification for not even telling him on the day, or the day before, that that decision had been come to? What possible justification is there?
MR VAN SCHUILENBURG: Yes, I can’t make a submission on that.
HIS HONOUR: No. Well I’ll take that as a concession, unless you’ve got anything else to say?
MR VAN SCHUILENBURG: No, not in that regard.
HIS HONOUR: Right. …
The grounds of appeal
The ‘grounds of appeal’ in the appellant’s notice of appeal appear as follows:
The appellant’s “Notice of Appeal” is brought pursuant to:-
3.1. The Magistrates Court Act 1991 (SA),
Section 42(2)(b)
3.2. The Supreme Court Rules 1987 (SA),
Rule 282(2)(a)
3.3. The appellant raises only one ground of Appeal; a ground that is fundamental to any decision or ruling; INJUSTICE.
The appellant submits that the Magistrate erred on a point of law and that the appellant’s application for costs in the cause was appropriate in the circumstances. However, the Magistrate gave no weight to it at all and dismissed the application. The appellant felt that he was treated with contempt by the mere fact that such an application was made.
Although the Magistrate’s decision was made in the exercise of discretion, his decision was “unreasonable” and “plainly unjust”, it created INJUSTICE.
Principles of law have been established by the High Court of Australia concerning appeals against decisions made in the exercise of discretion. These principles are discussed in the case of House v The King 55CL409, at Page 505 by Justices Dixon, Evatt and McTiernan.
“…. 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.”
3.4.The appellant further submits that the Magistrate is in breach of the Magistrates Court of South Australia (Criminal) Rules 1992, specifically:
3.4.1. Rule 51.01 “..... a successful party in an action is entitled to costs against an unsuccessful party”, and;
3.4.2. Rule 51.02 “..... a successful party includes a party ...... who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.”
This is, of course, far short of the precision that would be required of a legal practitioner. However, the appellant is an unrepresented litigant and has made a reasonable effort in the circumstances. On the hearing of the appeal, after the appellant had given an overview of his complaints, I referred counsel for the respondent to s 286(2) of the Supreme Court Civil Rules 2006[4] and indicated to him that I considered that at least the following issues or grounds of appeal were before the Court.
[4] R 286(2): Subject to any limitation on its powers arising apart from these Rules, the court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
Ground A: That the Magistrate should have advised the appellant of his right to either oppose the withdrawal or to seek that the payment of his expenses be made a condition of any such withdrawal.
Ground B: That the Magistrate should have interpreted the appellant’s application for “costs” as an application for whatever monetary sum was available to him. It was not open to his Honour simply to dismiss the application on the basis that legal costs were not payable because he was unrepresented; rather, the Magistrate had to address the question of what recompense an unrepresented litigant was entitled to in the circumstances.
Counsel agreed that those issues were before the Court and did not require that more precise grounds of appeal be crafted to raise them more clearly.
PART 2: JURISDICTIONAL ISSUES
Section 42 of the Act empowers this Court to hear appeals from the criminal jurisdiction of the Magistrates Court. It is first necessary to consider the evolution of the relevant provisions.
The evolution of s 42 of the Magistrates Court Act 1991
Section 42 of the Act was originally enacted without any provision equivalent to the present s 42(1a) and originally appeared thus:
42.(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
Subsequently, s 42(1a) was inserted by the Statutes Amendment (Courts) Act 1994, which commenced on 9 June 1994. That provisions then appeared thus:
(1a)An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
Still later, a new s 42(1a) was substituted by Statutes Amendment (Criminal Procedure) Act 2005 which commenced on 1 March 2007. This added a “carve out” to s 42(1a) and the provisions thereby attained its present form:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a) the judgment stays the proceedings; or
(b) the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c) the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
The position of the respondent on the appeal
The respondent submits first, it would appear correctly, that this Court on hearing appeals brought pursuant to s 42 of the Act does not have jurisdiction to entertain an appeal against ‘interlocutory judgments’, unless one of the exceptions in s 42(1a) applies.
The respondent then submits that this appeal is against an interlocutory judgment and that therefore this Court does not have jurisdiction to hear it. I consider this submission to be incorrect for the following reasons.
The ex-tempore decision of Perry J in McKelliff v Police
On correct analysis, the respondent’s argument effectively depends on the correctness of one ex tempore judgment in 2002, that of Perry J in McKelliff v Police.[5] The appellant there appealed against the quantum of a costs order made by a Magistrate in his favour after a complaint was withdrawn approximately half a day after the trial commenced. Perry J summarised the facts thus:
[5] [2002] SASC 269.
[2] The appellant was charged on complaint that on 4 November 2000 at Old Noarlunga and other places he rode a motor cycle at speed dangerous to the public, rode at excess speed and failed to stop when requested by the police.
[3] The matter in the court below has a somewhat chequered history in that the defendant finally appeared in court on 1 August 2001, after failing to appear on the five previous occasions upon which the matter had been called on for hearing.
[4] It appears that there were two further adjournments while the appellant sought legal advice, and two trial dates were vacated while negotiations between the complainant and counsel for the appellant took place.
[5] The appellant pleaded not guilty to all five counts, and when it eventually came on for trial on 24 June 2002 the trial ran for just over half a day before the complainant withdrew the complaint, following further discussions with counsel for the appellant.
[6] The formal order which was then made by the Magistrate was in these terms:
Evidence taken ... matter held for instructions. Complaint withdrawn. Defence application for costs. Costs allowed in the total amount of $1200 payable to Douglas Wardle Trust Account.
[7] In his notice of appeal the appellant pleads one ground only, namely “That the award of costs was manifestly inadequate and failed regard to the principles laid down in Haslam v Emu Air”.
[8] On the hearing of the appeal, by consent, I received an affidavit of Douglas Wardle, who was counsel for the appellant in the court below, as to the course of the proceedings in that court, with particular reference to the application for costs.
[9] It appears from that affidavit that the learned special magistrate was informed that Mr Wardle’s total charges, he being both counsel and solicitor to the appellant, would be $5252.21.
[10] The prosecutor opposed the making of an order for costs.
[11] In the result, the learned magistrate awarded $400 for preparation and $800 for attendances at the trial, a total of $1200 costs.
[12] In his outline of argument, the appellant contends that the order for costs was “paltry and demonstrably inadequate”.
Perry J, not the parties, raised the matter of jurisdiction. His Honour stated:
[13] Before the appeal came on for hearing, I caused advice to be given to the parties to the appeal that I would be assisted by argument as to whether or not the appeal was competent. I have now received argument on that aspect of the matter, but not on the merits of the appeal. I did not hear the parties as to the merits in view of the fact that I have reached a concluded view as to whether or not the appeal was competent, that view being that the appeal is incompetent.
Perry J held that both the order withdrawing the complaint, and the oral application for costs, were interlocutory in nature. His Honour stated:[6]
[20] Of course, in one sense, as the authorities have recognised, most orders finally dispose of a particular application which may be an interlocutory application or an application of another kind, but that circumstance does not mean that in such cases the order is other than interlocutory. What must be finally disposed of for an order to be other than interlocutory are the substantive rights of the parties.
[21] Here, there was no order finally disposing of the rights of the parties in that sense, given that the complaint was withdrawn. The annotation made by the magistrate on the complaint simply recorded that the complaint was withdrawn. The oral application for costs which followed was a separate application and in my view, its allowance by the order under appeal does not constitute a judgment or order which finally disposes of the rights of the parties.
[22] In that respect, I agree with the comments made by Mullighan J in Sullivan v Police in which he, in turn, declined to follow the decision of Bleby J in Grey v City of Charles Sturt.[7]
[23] I admit that the matter is not without some difficulty, but I recognise that the situation may be different if an order had been made dismissing the complaint. If there was an order of dismissal, or for that matter an order in which a defendant is convicted, then an order for costs made in consequence of dismissal or conviction ought properly to be treated as part of the final order disposing of the proceedings. In those circumstances, I think it would be wrong and, indeed, quite unreal to treat the costs order as other than part of or an incidence of the order finally disposing of the rights of the parties. So that, in cases such as that, it may be that an appeal against that part of the final order disposing of the proceedings which focuses on the order for costs may be competent.
[24] But that is not the case here. There is no final order disposing of the rights of the parties. The withdrawal of the complaint presumably operates in much the same way as a nolle prosequi, and provided that he was within time, the complainant could issue further proceedings.
[6] Ibid, [20]-[21].
[7] [1999] SASC 224 (unreported).
The construction of the term “interlocutory judgment”
The term “interlocutory judgment” has long been problematic and the statement of Buckley LJ that “ ... the decisions are so conflicting that I confess I am unable to arrive at any conclusion satisfactory to my own mind as to whether this is an interlocutory or a final order” is not infrequently referred to.[8]
[8] In re Page; Hill vFladgate [1910] 1 Ch D 489, 493-494.
Does the subject order finally dispose of the rights of the parties in the action?
It is now generally accepted that when considering whether an order is interlocutory, a central question is whether the subject order (here the Magistrate’s refusal to make any monetary award to the appellant) finally disposes of the rights of the parties in the action. Thus in Hall v Nominal Defendant (Hall), Windeyer J stated:[9]
The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of “that action” because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. For example, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause: Coroneo v Kurri and South Maitland Amusement Co Ltd.[10]A judgment on a demurrer may thus be either final or interlocutory depending upon circumstances: Hope v R C A Photophone of Australia Pty Ltd;[11] John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd.[12] These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties. (Emphasis added)
[9] (1966) 177 CLR 423, 443-444.
[10] (1934) 51 CLR 328, 334.
[11] (1937) 59 CLR 348.
[12] (1938) 60 CLR 1, 35.
Taylor J also noted:[13]
A great deal has been said concerning the distinction between final and interlocutory orders but it has, in the main, been the practice of courts to confine themselves to a consideration of the character of the particular order in question in each case. … However, … Lord Alverstone CJ, when called upon to say whether a particular order was interlocutory or final said: “It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order”: Bozson v Altrincham Urban District Council. Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory. [Footnotes omitted]
[13] (1966) 177 CLR 423, 439-440.
This approach has been confirmed in subsequent decisions of the High Court in Licul v Corney,[14] Carr v Finance Corporation of Australia Ltd (No 1)[15] and Bienstein v Bienstein.[16]
[14] (1976) 180 CLR 213.
[15] (1981) 147 CLR 246. (This is an anthology volume – the decision in Licul predates Carr).
[16] (2003) 195 ALR 225.
Importantly for the present case, in the decision of Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd (Coroneo) (referred to by Windeyer J in the emboldened passage in Hall above), the High Court held that even though a plaintiff remained free to bring another action for the same cause against a defendant, an order by the court entering a non-suit against the plaintiff is a final judgment rather than an interlocutory judgment because that “judgment disposes of the action to which it relates”. Thus Rich, Evatt and McTiernan JJ held:[17]
It is clear that a judgment of nonsuit which is entered by the Supreme Court under sec 7 of the Supreme Court Procedure Act … is not an interlocutory judgment within the meaning of sec 35 (1)(a) of the Judiciary Act. Such a judgment disposes of the action to which it relates, and the fact that another action may be commenced by the plaintiff is insufficient to prevent the judgment of nonsuit from being final within the meaning of this provision of the Judiciary Act. (Emphasis added)
[17] (1934) 51 CLR 328, 334.
The decision of the High Court in Coroneo was followed and applied in the decision of the South Australian Full Court in Svingos v Deacon Avenue Cartage & Storage Pty Ltd (Svingos) where Mitchell J dealt with the present issue at some length, again holding that an order for a non-suit (without a direction by the court that such order shall have the same effect as a judgment upon the merits) was a final order because it finally determined the action between the parties, notwithstanding that the plaintiff was at liberty to bring another action. Her Honour stated:[18]
The appellant was the plaintiff in an action in the Local Court of Adelaide in which he claimed from the defendant damages alleged to have been suffered by him in consequence of a trespass upon his land committed by the servants or agents of the defendant. It was claimed that the person or persons who had trespassed upon the land had left open a gate, and that cattle had strayed through the opening onto the land on which olive trees were growing and had damaged the trees.
The Chief Stipendiary Magistrate who heard the claim delivered reasons for judgment at the conclusion of which he said:—“For these reasons in my view the plaintiff must fail. I think that the appropriate course may be to nonsuit the plaintiff pursuant to s 137 of the Local and District Criminal Courts Act 1926-1969 … but I will hear counsel on this aspect of the case.” The order which was made after counsel had been heard was:—“Order that the plaintiff be nonsuited, but that such order shall not have the same effect as a judgment upon the merits.” We were informed that the plaintiff elected to be nonsuited in the above terms rather than to have judgment entered for the defendant. Section 136 of the Local and District Criminal Courts Act enables the Court to nonsuit a plaintiff, and by s 137“a nonsuit, if the court so directs, shall have the same effect as a judgment upon the merits for the defendant.” The order of the Special Magistrate in this case ensured that the plaintiff might bring a fresh action against the defendant for the same cause (Poyser v Minors); but the particular action was at an end. If the order was a final order then the appeal is properly instituted (s 58(1)); but if it was an interlocutory order then the plaintiff could appeal only with leave (s 58(2)). It was a final order because it finally determined the action between the parties, notwithstanding that the plaintiff was at liberty to bring another action (Coroneo v Kurri Kurri and Smith Maitland Amusement Co Ltd; and cf Salaman v Warner, applied by Lord Denning MR in Salter Rex & Co v Ghosh). The appeal therefore was properly instituted. (Emphasis added)
[18] (1971) 2 SASR 126, 132-133.
The judgment of Bray CJ is to the same effect. His Honour applied Coroneo, and held that there was “no doubt” that a non-suit under s 136 of the Local and District Criminal Courts Act 1926 (SA) was a final judgment, notwithstanding it “not having the effect of a judgment on the merits” and that “the plaintiff may be at liberty to bring another action for the same cause”.[19] Similarly, Zelling J stated:[20]
One minor matter needs to be mentioned in conclusion and that is the question of the competency of the appeal. There was some discussion as to whether the order of nonsuit appealed from was an interlocutory or final order. In my opinion the order was a final order and an appeal lies to this Court as of right; see the joint judgment of Rich, Evatt and McTiernan JJ in Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd and the judgment of Windeyer J in Jones v Dunkel.
[19] Ibid, 131-132.
[20] Ibid, 137.
Neither of these important decisions adverse to the respondent were referred to by counsel for the respondent on the appeal.
Consideration
The gravamen of Perry J’s decision really appears in paragraph [24] of McKelliff reproduced above.
Perry J refers to the nolle prosequi, but it must be remembered that the nolle prosequi has always been a creature of the common law relating to the prosecution of offences in the higher courts (where, it may be observed, the thought of an award of costs to an acquitted criminal defendant has been traditionally viewed as anathema). Quasi criminal charges on complaint, on the other hand, have long been a costs jurisdiction and the true analogy, to which Perry J should have referred, was the non-suit of the type discussed in the cases of Coroneo and Svingos, a situation in which the plaintiff was free to bring another action for the same cause. Those decisions strongly confirm that the orders relating to the withdrawal of the complaint together with the Magistrate’s refusal to award any monetary amount to the appellant did indeed dispose of the rights of the parties in the action; they were therefore final orders.
Indeed, the only authority cited by Perry J in support of his decision was the judgment of Mullighan J in Sullivan v Police (Sullivan) which Perry J preferred to the earlier judgment of Bleby J in Grey v City of Charles Sturt (Grey). I will refer briefly to those two decisions.
In 1999 in Grey, Bleby J held that the Court had jurisdiction to hear an appeal against a costs order made on an adjournment. His Honour stated:[21]
The procedure governing the appellant’s appeal, therefore, depends on whether this appeal is classed as an appeal against an interlocutory order or not. In my opinion, it is not. It is an order which operates regardless of the final outcome of the proceedings and imposes a financial liability on the appellant regardless of that outcome. That order may be enforced as any other order of the Magistrates’ Court made in its Criminal Division. It is an order which, although made in the course of proceedings, was not interlocutory in the sense of assisting in the proper resolution of the proceedings. In my opinion, leave is not necessary and the appellant has an appeal as of right.
[21] [1999] SASC 224, [19].
In 2000 in Sullivan, Mullighan J was again dealing with an appeal against a costs order made mid-way through the proceedings. His Honour disagreed with the view of Bleby J and stated:[22]
I regret that I find myself in disagreement with Bleby J. An order for costs made during the course of proceedings is not a judgment or order which finally disposes of the rights of the parties in the relevant sense. Nor is an order refusing to make an order for costs. All orders of the Magistrates Court are enforceable, including interlocutory orders. Mere enforceability does not convert an interlocutory order into a final order.
[22] [2000] SASC 171, [31].
It is unnecessary for me to express a preference as between the differing views of Bleby J and Mullighan J, because the two cases really had no bearing on the decision in McKelliff; and they have no bearing on the decision in the present case. The differences between the factual circumstances in cases such as Grey and Sullivan on the one hand, and McKelliff and the present case on the other hand, are very stark. In both Grey and Sullivan, the appellants had the opportunity to challenge the costs order at the conclusion of those proceedings. Thus Mullighan J in Sullivan stated:[23]
… other cases where costs are refused, including costs thrown away by a party during the proceedings, should be decided at the conclusion of the proceedings and should be the subject of an appeal as of right as part of the final order or orders made in the proceedings.
Whilst it is to be appreciated that the refusal to make an order for costs may also operate harshly against a party to proceedings in the Magistrates Court, the Legislature has struck a balance between the interests of parties and has prevented appeals from such interlocutory decisions by not granting an appeal by leave pursuant to s 189 of the Summary Procedure Act and has prohibited an appeal by s 42 of the Magistrates Court Act. Proceedings are completed relatively quickly in the Magistrates Court and appeals are heard expeditiously so that the harsh consequences of an erroneous exercise of discretion to refuse costs at an interlocutory stage will not be of long duration. Also, it is likely that Parliament has also recognised the undesirability of the capacity to appeal interlocutory orders of any nature except in the limited circumstances permitted by s 189. It is to be expected that where a Magistrate is not disposed to make an order for costs during the course of criminal proceedings in the Magistrates Court, the application will not be finally disposed of until the completion of the proceedings.
(Emphasis added)
[23] [2000] SASC 171, [34]-[35].
Of course one sees the sense in the words of his Honour. But the important point is that a person in the position of McKelliff had no chance to postpone his appeal concerning quantum of costs to the end of the proceedings for the very simple reason that the costs order he complained of in fact was made at the end of proceedings and not in the middle of continuing proceedings as was the case in Sullivan. In McKelliff, the prosecution had no intention whatever of bringing the same charge against Mr McKelliff again, and in fact they did not do so. It followed that if a person in the position of Mr McKelliff could not bring an appeal in relation to costs by itself, equally he could not make it (in the words of Mullighan J) “the subject of an appeal as of right as part of the final order or orders made in the proceedings” for the simple reason that there could be no other appeal of which it could be made a part. And the same is so in the case of the present appellant.
The reasoning adopted in McKelliff has hitherto been largely unaddressed
As from 9 June 1994 (when the first iteration of s 42(1a) came into force), it does not appear to have been suggested that this Court does not have jurisdiction to entertain appeals against Magistrates’ costs orders made after a withdrawal of a complaint. South Australian cases decided in this period which proceeded on the basis that there was such a right of appeal include (in chronological order):
-1997: Moore-McQuillan v Police[24] (Doyle CJ);
-1997: White v Police[25] (Perry J);
-1997: Moore-McQuillan v Police[26] (Debelle J);
-1998: Worth v Police[27] (Lander J);
-2008: Van Gils v Police[28] (David J);
-2009: Police v McIntosh[29] (Nyland J);
-2011: Schloithe v Police[30](White J); and
-2016: Watson v Police[31] (Doyle J).
[24] (Unreported, Supreme Court of South Australia, SCCRM 791 of 1997, 16 July 1997).
[25] [1997] SASC 6452.
[26] [1998] SASC S6971 (27 November 1998).
[27] [1998] SASC 6674.
[28] [2008] SASC 270. Although David J uses a general term “dismissal” in introductory paragraph [1], It is made clear at paragraph [3] that “the prosecutor … sought and was granted leave to withdraw the complaint”.
[29] [2009] SASC 253.
[30] [2011] SASC 156.
[31] [2016] SASC 123.
These decisions (and I am sure there are others) appear evenly divided as being before and after the decision in McKelliff in 2002.
The correct construction of s 42(1a) of the Magistrates Court Act 1991
The term “interlocutory judgment” should be construed having regard to its statutory context.[32] Section 42(1a)(c) makes it clear that s 42(1a) is concerned with avoiding the taking of appeals against interlocutory judgments which are made “before commencement or completion of the trial”, unless “there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial”. The purpose of the legislation is clearly to address the bane of excessive fragmentation of criminal proceedings, as to which Gibbs J (then a member of the Queensland Supreme Court) in Schneider v Curtis oberved:[33]
[I]nterlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The personal and financial stress of criminal trials, the dimming of witnesses’ memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object. …
[32] See generally Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355.
[33] [1967] Qd R 300, 306.
Making allowance for the considerable differences between the procedures of this Court and the High Court, the recent summary of High Court authority by Gageler J in Obeid v The Queen is of assistance. His Honour there said:[34]
There is a longstanding and general reluctance on the part of this Court in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train. The generality of that reluctance is sufficiently illustrated by the decision and reasoning of the Full Court in the course of refusing special leave to appeal from interlocutory decisions in criminal proceedings in Yates v Wilson and in R v Elliott, and by the much more recent decision of French CJ in Alqudsi v The Commonwealth, which concerned applications for both removal to, and remitter from, this Court in circumstances where an accused in pending criminal proceedings sought to challenge the validity of legislation creating the offence with which the accused was charged.
The reasons given by Kirby J in Frugtniet v Victoria for refusing to stay a criminal proceeding against an accused pending the determination of a proceeding in this Court’s original jurisdiction are particularly instructive in the present context. The proceeding in the original jurisdiction of this Court in that case concerned a challenge to the constitutional validity of legislation which bore on the trial process in a manner which was argued to infringe Ch III of the Constitution. His Honour said:
This Court has more than once ... emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in R v Elliott. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia – and especially of this Court – not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply ... to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again. [Footnotes omitted]
[34] [2016] HCA 9, [15]-[16].
The strong stand taken by all Australian courts against the fragmentation of criminal proceedings or quasi-criminal proceedings is well known;[35] and it is clear that avoiding such fragmentation was the purpose of the original insertion of s 42(1a) in 1994. However, subsequent to that amendment it became clear that in special circumstances a limited degree of fragmentation could be efficacious and accordingly the exceptions to the prohibition of appeals against interlocutory judgments were enacted in the second iteration of s 42(1a) in 2007. Thus in the second reading speech on 20 September 2005, Mr Atkinson, then State Attorney General, stated:[36]
The decision of the Full Court in Police v Dorizzi (2002) 84 SASR 416 illustrates a problem with section 42. In Dorizzi, the Full Court held that section 42 does not enable a party in a criminal proceeding (in this case the prosecution) to appeal a ruling on the admissibility of evidence by a magistrate. Dorizzi was the prosecution [of] night club security guards for assault. The key prosecution evidence was tapes from various video-surveillance cameras purporting to show the offence taking place. The magistrate hearing the matter ruled the video tapes inadmissible. As a result, the prosecution case collapsed. The magistrate ruled there was no case to answer and ordered the case be dismissed.
The prosecution appealed the magistrate’s decision to a single judge of the Supreme Court under section 42. On appeal, the Judge ruled the video tape was incorrectly ruled inadmissible, set aside the magistrate’s orders, and ordered a retrial. On further appeal, however, the Full Court held that the prosecution could not have succeeded in its appeal as section 42 did not authorise an appeal against the magistrate’s ruling on the admissibility of the video tapes.
The Bill amends sections 42 to provide, in effect, a right of appeal against a decision by the Magistrates Court on an interlocutory judgment. That will be permitted when:
·a question as to whether proceedings on a complaint or information or a charge contained in a complaint or information should be stayed; or
·the judgment in effect destroys the case for the prosecution; or
·the Court or the appellate court is satisfied that there are special reasons for allowing the interlocutory appeal to proceed (given the often enunciated judicial expressions of the public interest against splitting the course of criminal proceedings).
[35] A similar regime for trials in the higher Courts is enacted by s 352(1)(c) of the Criminal Law Consolidation Act 1935.
[36] Parliamentary Debates SA (House of Assembly), 20 September 2005, p 3469-3470.
A construction avoiding inconvenience or injustice
The fact is that this amending legislation was simply not addressed to a question of costs or appeals concerning costs. However, on the contention of the respondent, its effect is to make the Supreme Court’s jurisdiction in such matters turn on a side wind created by the decision in McKelliff such that the real possibility of injustice to litigants, particularly unrepresented litigants, is readily apparent.[37]
[37] Thus in Uzzell v Police, Kelly J stated at [29]: In light of the divergent authority in this Court as to whether a costs order made in these particular circumstances is a final order or an interlocutory order, it may be prudent in the future for any party who wishes to preserve his or her appeal rights in the event of an adverse exercise of the costs discretion against them in similar circumstances, to first seek dismissal of the complaint under the provisions of s 69 and s 71 of the Summary Procedure Act where it is intended to make an application for costs immediately thereafter.
It is an important principle of statutory procedure that if two constructions are open, the court will prefer that which will avoid what it considers to be inconvenience or injustice.[38]Thus in Commissioner for Railways (NSW) v Agalianos, Dixon CJ (with whom Williams, Webb and Taylor JJ agreed) considered that:[39] “… the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
[38] See D Pearce & R Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014) 201-202.
[39] (1955) 92 CLR 390, 397.
More expansively, in Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation, Gibbs CJ said:[40]
… if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust … The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”, as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors;[41] it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied. (Emphasis added)
[40] (1981) 147 CLR 297, 305.
[41] [1913] AC 107, 130.
And Mason & Wilson JJ there said:[42]
On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. (Emphasis added)
The nature of a particular order – interlocutory or final – is informed by the circumstances surrounding the making of the order by the Court
[42] (1981) 147 CLR 297, 321.
Superimposed on the foundational matter of the correct interpretation of the relevant legislation is a further distinct question relating to the nature of the particular order under consideration.
The answer to a question of whether a particular order is interlocutory or final is informed by all of the relevant circumstances surrounding the making of that order. In the case of orders as to costs, examples of such relevant circumstances include the stage of the proceedings when the order is made and the circumstances indicating whether or not the matter to which the costs order relates is being finally disposed of.
To take two situations towards one end of a spectrum, it is entirely logical that a costs order made after an order adjourning a continuing matter (as in Sullivan) is interlocutory. Similarly, in cases such as Heinrich v Curtis & Ors,[43] C, MG v Police[44] and Watson v Police,[45] where a charge in an ongoing prosecution is being withdrawn for the reason that it is being replaced by other corresponding charge(s), a costs order will again be interlocutory; it is clear in such situations that the withdrawal of the charge in no way amounts to a termination of the prosecution.
[43] [2006] SASC 264.
[44] [2010] SASC 268.
[45] [2016] SASC 123.
However, to take two situations towards the other end of that spectrum, it is equally logical that a costs order made subsequent to a conviction or a costs order made subsequent to a dismissal are themselves final judgments.[46]
[46] See Uzzell v Police [2017] SASC 143, [20]; Curnow v Police (2008) 100 SASR 290; McKelliff v Police [2002] SASC 269; Hutchinson v Police (2012) 113 SASR 460; Schloithe v Police [2011] SASC 156; Murphy v Police (2005) 92 SASR 570.
In my view, where police apply to “withdraw” a charge with no intention of re-laying it in the same or different form, it is clear that there is no sensible or fair distinction between a prosecution being terminated by a dismissal and a prosecution being terminated by a withdrawal. This view is, of course, reflected in Magistrates Court Rules 1992 (Criminal), Rule 51.02 relied upon by the appellant and reproduced above at paragraph [18].
In the present case the prosecution could not lay a further charge after the withdrawal on 25 August 2017
I now turn to an additional and quite definitive factual consideration (which was not present in the case of McKelliff) that of itself requires a decision that the “withdrawal” in the present case was a final determination of this charge in favour of the defendant.
The whole basis of the respondent’s argument on the appeal was essentially that the Magistrate’s orders relating to the withdrawal of the complaint and the refusal to award any monetary amount to the appellant did not dispose of the rights of the parties because, as was said in McKelliff, the prosecution could theoretically lay the same charge again (with the suggested analogy of a nolle prosequi).
However, it turns out (although counsel for the respondent never alerted the Court to this important matter) that the prosecution was, as a matter of law, unable to lay a further charge after the withdrawal on 25 August 2017. This was because, in the context of expiable offences in which the recipient of the expiation notice elects to be prosecuted, s 52 of the Summary Procedure Act 1921 (SPA) provides as follows:
(1)Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits:
(a) In the case of an expiable offence—
(I) if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice;
In the present case, the chronology is as follows:
-The expiation notice was issued on 21 April 2016;
-The appellant elected to be prosecuted on 13 May 2016;[47]
-The “due date” on the expiation notice was 19 May 2016 (being 28 days from 21 April 2016);
-The complaint against the appellant was filed on 9 August 2016 (being within the six month period specified in s 52(1)(a)(I) of the SPA);
-The time within which to commence proceedings pursuant to s 52(1)(a)(I) of the SPA expired on 19 November 2016 (six months after 19 May 2016);
-No new complaint could be laid after 19 November 2016; and
-The complaint was withdrawn on 25 August 2017.
[47] At which point, by virtue of s 8 of the Expiation of Offences Act 1996, the expiation notice was “taken to have been withdrawn”.
In other words, as at the date of trial on 25 August 2017, the police were faced with the situation that they could proceed with the trial or they could apply to withdraw; but if their application to withdraw were granted, that would constitute a final termination of the charge because the time within which to lay a complaint for that charge had already well and truly expired on 19 November 2016.
The police clearly chose to terminate the prosecution (and to do so in a way calculated to visit the maximum amount of inconvenience time and expense on the defendant) in circumstances where they had no legal ability to prosecute the defendant again.
If everything else in this judgment were to be ignored, this matter by itself alone determines that the order of the Magistrate was a final order in the circumstances of this case.
PART 3: WITHDRAWAL OF CHARGES OF SUMMARY OFFENCES
It may well be that the following part 3 is not strictly necessary to this judgment. However, I cannot be sure of that because, should this matter be taken on further appeal, it might possibly be suggested by the respondent that I had omitted to take into account the construction of s 69 of the SPA suggested by Vanstone J in Collis v Magistrates Court[48] and that that matter has some bearing on the judgment herein.
[48] (2008) 101 SASR 332.
I foreshadow that I respectfully disagree with the construction suggested in Collis (to be referred to as “the Collis construction”) and, further, even if it were correct, it would have no effect on the judgment herein. My reasons follow.
The conventional construction of s 69 of the SPA
In 1921, the present s 69 of the SPA was enacted in the form of s 69 of the Justices Act 1921.[49] It was (and remains) as follows:
[49] The wording of the present s 69 of the SPA is in the same form as s 69 of the Justices Act 1921.
69—after hearing the parties court to convict or dismiss
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the information, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the information to be withdrawn, upon such terms (if any) as it thinks fit.
(Emphasis added)
It is important to note that s 69 appears in “Part 4 Summary Jurisdiction” of the SPA and only applies to Magistrates’ dispositions of charges of summary offences.[50] Section 69 has no application to major indictable offences in relation to which the applicable procedure is found in “Part 5: Indictable Offences” of the Act (taken together with common law principles pertaining to the right of the Crown to enter a nolle prosequi on an indictable offence at any time).
[50] If a defendant is charged with a minor indictable offence and does not elect to be tried in a higher court before a jury, the charge will be dealt with in the same way as a charge of a summary offence and accordingly s 69 will apply in such circumstances. See s 103(3) Summary Procedure Act 1921 (SA).
Division 3 of Part 4 of the SPA deals with the hearing of a charge of a summary offence. The sections from s 61 to s 68 inclusive deal with various aspects of such hearings, with s 68 dealing with the procedure to be adopted when a defendant pleads not guilty at a trial. These sections culminate in s 69 which commences by addressing what is to be done after the parties and their evidence have been heard; there then comes the proviso which qualifies the approach in the preceding sections by providing for an additional and alternative way in which a summary offence may be dealt with, namely by a withdrawal with the sanction of the court.
What I will refer to as the conventional construction of s 69 has always been as follows. First, that a withdrawal of a charge of a summary offence at any time from when it is initially laid may not be made unilaterally by the complainant but requires the permission of the presiding Magistrate. Second, that the Magistrate’s decision as to whether or not to grant such permission involves the exercise of a judicial discretion and the granting of an application may be made subject to stipulated conditions. Third, that if the Magistrate refuses permission, the prosecutor cannot be forced to proceed but instead may tender no evidence which action will lead to a formal dismissal of the proceedings with attendant orders such as orders for the payments of costs.
Thus in Summary Procedure of Justices (Lawbook 3rd edition, 1957) Mr Hannan QC stated:[51]
Whether or not the court should permit a complaint to be withdrawn is a matter within its discretion. If the court refuses to permit a withdrawal, and no evidence is tendered, it can only dismiss the complaint for want of prosecution or strike it out; it cannot compel the complainant to proceed; see R v Melbourne Justices [1935] VLR 377.
[51] This passage also appears unaltered in Wright SM (ed), Hannan’s Summary Procedure of Justices in South Australia (Lawbook, 4th ed, 1975).
As an example of the conventional approach to s 69, in Willing v Hollobone (Willing), Walters J[52] (and subsequently the Full Court[53]) considered an appeal against a Magistrate’s refusal to grant an unrepresented litigant costs following the withdrawal of a complaint. As noted above, s 69 of the Justices Act 1921 (SA) was then in terms identical to those of the present s 69 of the SPA. The proceedings in the Magistrates Court were rather similar to those in the present case and were summarised by Bray CJ thus:
On 9th June, 1971 the proposed respondent, a clerk employed by the Corporation of the City of Adelaide, laid a complaint against the applicant charging him with an offence against the parking by-laws of the corporation. The applicant conducted his own case in the Magistrates Court, as he did before Walters J and before us. The complaint was adjourned from time to time. On 19th November, 1971 the prosecutor applied to withdraw the complaint and the Court permitted the withdrawal (s 69 of the Justices Act 1921-1972). The applicant asked for costs. The learned Special Magistrate refused them. The applicant appealed to the Supreme Court.
[52] [1972] 2 SASR 434.
[53] [1972] 3 SASR 532.
In Willing, the complainant sought to withdraw the complaint after a certain amount of legal argument as to particulars had occurred, and after the defendant had pleaded ‘not guilty’, but no evidence had been thus far adduced. Walters J relates the further course of proceedings thus:[54]
Upon the resumption of the hearing at 10.00 am on 19th November, 1971, counsel for the complainant, of his own motion and without advancing reasons for doing so, applied for leave to withdraw the complaint. The appellant objected to the withdrawal, except upon terms that the complainant should pay his costs. In exercise of his powers under s 69 of the Justices Act 1921-1969, the learned Special Magistrate permitted the complaint to be withdrawn. There was no power in the Magistrate to compel the complainant to proceed, although if he had refused to permit a withdrawal and no further evidence had been tendered, he could have dismissed the complaint for want of prosecution.
…
Next the appellant applied for his costs, but this application was refused. I gather from the appellant’s argument on the appeal that he made the same extravagant claim for costs as he has made before me. Whether there was anything in the appellant’s conduct of his case which induced the learned Special Magistrate to refuse him his costs does not appear in the Magistrate’s notes. No reasons were given for the order under appeal. However, I cannot discover from the record anything which points to unreasonable, oppressive, capricious or improper conduct on the part of the appellant in conducting his defence which might have defeated or delayed justice. And in default of any statement on behalf of the complainant of the grounds of the withdrawal, the circumstances of the withdrawal could hardly have influenced the Magistrate in coming to his decision.
With all respect to the learned Special Magistrate, I think that his discretion should not have been exercised adversely to the appellant unless the complainant was able to show some ground which would have justified the exercise of his discretion in that way. “The discretion must be judicially exercised, and therefore there must be some grounds for its exercise, for a discretion exercised on no grounds cannot be judicial” (Ritter v Godfrey, per Lord Sterndale MR at p 53).
…
Prima facie, the discretion to award costs ought to be exercised in favour of a successful litigant, unless there is good or sufficient cause for not doing so. Here a charge was formulated by the respondent on a quasi-criminal prosecution, and the appellant was there to meet it. And in the view I take, where a litigant initiates a prosecution and allows the hearing to be entered upon, and then, without offering adequate reasons why he does not wish the prosecution to proceed, seeks, and is granted, leave to withdraw the proceedings in the face of opposition by the other side, an order for costs should normally be made in favour of his successful opponent, more especially as a guard and protection against unjustified litigation. In saying this, I think a material consideration is that the withdrawal of a complaint does not act as an estoppel which will prevent a complainant, subject to any limitation of time, from pressing a further charge (cf Bishop v Cody; Broome v Chenoweth, per Dixon J (as he then was) at pp 598-599). With all deference to the learned Special Magistrate, I have come to the conclusion that in the absence of sufficiency of grounds, if existent at all, for the exercise of discretion adverse to the appellant, he should not have been deprived of his costs. (Emphasis added)
[54] [1972] 2 SASR 434, 436-437.
Walters J proceeded to award the appellant costs including travelling expenses but the appellant was dissatisfied concerning the quantum and sought leave from the Full Court to further appeal. Those proceedings are further considered below. However, the present point is that Walters J was obviously of the view that the approach adumbrated by Hannan QC in the construction of s 69 advanced Summary Procedure of Justices was correct; the Collis construction never occurred to Walters J or to Bray CJ, Hogarth J or Sangster J in the Full Court. I turn now to the matter of Collis.
Collis v Magistrates Court of South Australia – the “Collis construction” of s 69 SPA
In Collis the plaintiffs were jointly charged with two major indictable offences of taking part in the sale of cannabis on an Information of the Director of Public Prosecutions (the DPP). The DPP decided to terminate the prosecution, and sought an order dismissing the Information. The plaintiffs resisted that application on the basis that they wished to plead guilty to the charges in circumstances where Queensland prosecuting authorities wished to extradite them to face charges in Queensland jointly with others allegedly implicated in the scheme. The plaintiffs sought an order in the nature of prohibition preventing the Magistrates Court from dismissing the Information prior to the plaintiffs being arraigned; they contended that s 105(2) of the SPA required that they be arraigned and, if they pleaded guilty, committed for sentence in a superior court and that the power of the DPP to terminate a prosecution, granted by s 7(1)(e) of the Director of Public Prosecutions Act 1992 (SA), was to be read subject to the provisions of the SPA. Vanstone J considered the submissions by the parties and concluded that:
There is no reason to read down s 7(1)(e) so that it is subservient to provisions of the SP Act. Its terms are, for these purposes, absolute. The grant of power is not conditioned by a requirement that the court before which the charge is being heard grant leave to terminate.
Vanstone J therefore dismissed the application. I want to be clear that I do not suggest that her Honour’s resolution of the matter before her was erroneous. However, in a final paragraph which is clearly obiter, her Honour said in relation to s 69 of the SPA (which has no application to indictable offences):
[29] It is true that a court created by statute might be given power to impose conditions on the termination of a cause, including a prosecution. Section 69 of the SP Act provides an example of such a power. But the proviso to s 69 does not amount to the conferral of a general power to regulate the withdrawal of complaints. Rather, it is a conferral of a power upon the court to impose conditions upon the withdrawal of a complaint after all the evidence has been taken. As Mr Hinton QC, for the respondent, argued, as a matter of statutory construction, the proviso to a clause only qualifies that which precedes it. Apart from giving the court the power to adjudicate the evidence given in support of a complaint, the wording of s 69 recognises that a party may withdraw at any time, but gives the court the power to hedge the exercise of that right, after a point where all the evidence has been heard. (Emphasis added)
The argument of the respondent in Collis concerning s 69 which the Judge accepted was novel, with no authority supporting it. The argument was, as I understand it, that in light of the words in s 69 up to the colon, the proviso commencing immediately after the colon should be read such that the words “at any time before the matter has been finally determined …” mean “at any time after the parties and their evidence have been heard and before the matter has been finally determined.” As I understand it, Vanstone J accepted that contention and held that a complainant has a unilateral right to withdraw a complaint at any time after it is laid before the court and that such right is only “hedged” by the court if it is exercised after all of the evidence has been heard (at which time the court may impose conditions upon the withdrawal of the complaint).
Overview of criticism of the Collis construction
Unfortunately, I simply cannot agree with the Collis construction for a number of reasons, which in overview are as follows.
First, the Collis construction predicates or assumes that if there were no s 69 in the SPA, the position would be that a complainant would have an unfettered right to withdraw a complaint after it is laid before a Magistrates Court; it is upon this foundation that it is said that s 69 only affects complaints sought to be withdrawn after all evidence is adduced and final addresses have been heard. In fact, that important assumption is not justified; a survey of authorities clearly demonstrates that it has always been the law that if the matter of withdrawal of a complaint is not addressed by statutory provision,[55] a complaint can only be withdrawn after application to, and with the permission of, the presiding Magistrate. The process is one of implication of a power in a Magistrate to permit such a withdrawal rather than an assumption that complainants have carte blanche to withdraw complaints which are before the court and subject to its jurisdiction.
[55] On an assumption that withdrawal is possible at all after a plea has been entered; for many years, and still as at 1921 when the Justices Act 1921 came into effect, this was a live issue.
Second, if one focusses on the year 1921 in which the Justices Act 1921 came into effect, and with it for the first time s 69, one sees that prior to that time (and indeed well after that time), there were a number of ongoing uncertainties concerning various aspects of the withdrawal of complaints. It is obvious that the South Australian Parliament may well have wished to address these matters by the enactment of a cohesive s 69 (a provision which does not appear to have a counterpart elsewhere). The conventional construction expressed above may be taken to be a mainstream view as at 1921, with the requirement of assent by the court, the power of the court to impose conditions and the ruling out of a distinction between before and after the taking of a plea all making perfect contemporaneous sense. By contrast, the “Collis construction” should be rejected because it was completely out of line with contemporaneous views as to the state of the law as at 1921 and made no logical sense (and still does not). It assumes an unfettered unilateral right in a complainant to withdraw at any time up to the completion of the last closing address (or address in reply if applicable) and restricts the ambit of operation of s 69 to what may be a very short time indeed between the end of closing addresses and the Magistrate’s pronouncement of judgment.
Third, it is impossible to find any logical reason to support the strange and stilted “Collis construction” other than an erroneous view that the application of a rigid rule concerning the statutory interpretation of a legislative “proviso” legally requires that result.
I turn to each of these three matters in more detail.
The common law position when a statute does not address withdrawal of a complaint laid before a Magistrates Court
Vanstone J stated in Collis that:[56]
… the proviso to s 69 does not amount to the conferral of a general power to regulate the withdrawal of complaints. Rather, it is a conferral of a power upon the court to impose conditions upon the withdrawal of a complaint after all the evidence has been taken.
[56] (2008) 101 SASR 332, 338.
This is to assume that, but for s 69, a complainant has an unfettered right to withdraw a complaint after it is laid before a Magistrates Court; Vanstone J then builds upon that assumption to hold that the effect of s 69 is to “impose conditions” upon that assumed right, but only from the point in time “after all the evidence has been taken”.
However, the authorities decided on statutes where the matter of withdrawal is not dealt with demonstrate exactly the opposite: when the relevant statute does not address the topic of withdrawal of a complaint, there may be implied a power in a Magistrate to grant leave (with or without conditions) to a complainant who applies to withdraw a complaint as a matter of judicial discretion. But that process of implication results in an implied power of the Magistrate. It has never been previously suggested that complainants are to be taken to have carte blanche power to withdraw charges as a matter of their own discretion; all of the authority is entirely against such an idea.
As to the United Kingdom, without staying to consider the present situation, the historical background was that for many years the matter of withdrawal was not addressed in the relevant statute and arguments were continually put to the effect (as summarised by Ackner LJ when such an argument by an applicant for judicial review was put as recently as 1981) that:[57]
(I)f you look at the Magistrates’ Courts Act 1952, and no doubt if you looked at its predecessor, the Summary Jurisdiction Act 1879, although you will find reference to the power of a court to adjourn, there is no reference to the power of a court to permit the withdrawal of a summons or information. He therefore says quite simply that that must mean that Parliament did not intend to give the court such a power."
[57] R v Redbridge Justices, ex parte Sainty [1981] RTR 13, 16.
In 1848, in Tunnicliffe v Tedd (Tunnicliffe)[58] a decision of the Court of Common Pleas, it was accepted that a withdrawal could occur with the permission of the court, but only up to the entry of a plea of not guilty signifying the commencement of a trial. Thereafter a charge before a Magistrates Court could not be withdrawn and had to be heard and disposed of according to the procedure laid down by the relevant statute.
[58] (1849) 5 CB 553; 136 ER 995.
In Tunnicliffe, the plaintiff summoned the defendant before the Justices on a summary charge of assault. He pleaded not guilty and the complainant then declined to proceed, stating that he meant to bring a civil action. The justices thereupon dismissed the complaint, and gave the defendant a certificate as follows: “We deemed the offence not proved, inasmuch as the complainant did not offer any evidence in support of the information; and have accordingly dismissed the said complaint”. The plaintiff later brought a civil action concerning the same incident which was tried by jury and the plaintiff recovered damages. However, this verdict was subsequently set aside and the judgments proceeded thus:[59]
COLTMAN J. It appears to me that the proceeding in this case, is analogous to the ordinary case of an indictment. Where a true bill is found by the grand jury, and the defendant appears to take his trial, although no evidence is offered by the prosecutor, that is still a hearing. So, here, the complaint having been lodged, and the defendant having appeared and pleaded, I do not see what right the complainant had to withdraw the charge. The defendant had an interest in having the matter disposed of. If the assault were not proved, he was entitled to be acquitted; and if proved, he would, by the imposition of a fine, or of imprisonment, be relieved from all further responsibility. I think the defendant is entitled to have a verdict entered for him on the second issue.
MAULE J. I am of the same opinion. The 27th section of the 9 G4, c31, seems to me to constitute the magistrates a court of oyer and terminer, to hear and determine all matters brought before them. The object of the act was, to put an end to actions and prosecutions for assaults of an ordinary character, by substituting a cheaper and more speedy prosecution, which was to be a bar to all other proceedings, civil as well as criminal, for the same offence. In an ordinary court of oyer and terminer, if the defendant appears and pleads, he has an undoubted right to have the matter determined. When the complaint is ripe for hearing, and the defendant is ready to take his trial, if the prosecutor alleges nothing against him, or merely something that is unsubstantial, then the magistrates are bound to find the charge not proved, and to give a certificate accordingly. Should it turn out, as was suggested by Mr Humfrey, that the complainant has sustained grievous injury, a remedy is provided by s 29, – not at the option of the complainant, but at the discretion of the magistrates. There is no necessity to seek for an analogy in civil proceedings, to support the claim of the prosecutor to withdraw at his option. In criminal proceedings, the prosecutor, having once put the law in motion, cannot be allowed to withdraw.
CRESSWELL J. I am of the same opinion. It appears to me that there was a hearing in this case. As soon as the defendant appeared to the information, and pleaded, there was an issue joined, which the magistrates were bound to hear and to determine. The complainant being asked what he had to say, told the magistrates that he declined to go any further with the prosecution, as he meant to bring an action. The magistrates having heard all the man had to say, dismissed the complaint. The defendant was clearly entitled to have the benefit of that state of things; and the certificate of the magistrates is a complete bar to this action.
V WILLIAMS J. I am of the same opinion. …
[59] (1849) 136 ER 995, 998.
Finally, as to the Australian Capital Territory, in The Queen v Kent, Fox J of the Supreme Court stated in relation to offences being dealt with summarily:[82]
There the prosecutor who does not wish to proceed may seek leave to withdraw (as distinct from offering no evidence) in order to avoid a disposition of the case which will operate as an acquittal and give rise to an estoppel. The disposition of the application involves the exercise of a real discretion and has legal consequences. (see Bishop v Cody; Broome v Chenoweth). (Emphasis added)
[82] (1970) 17 FLR 65, 69-70.
A little later in the context of committal proceedings (but it would follow a fortiori in summary proceedings) his Honour stated:[83]
At the same time, I see no reason why as a matter of practice a magistrate hearing preliminary proceedings in relation to an indictable offence should not be asked to give his leave for the information to be withdrawn. If such a course has no other legal significance, it at least fulfils the important function of enabling the Court to be satisfied about the circumstances in which the prosecution was brought and the circumstances in which it is not being proceeded with. Every court which deals with criminal matters is concerned to see, not only that its processes are not being abused, but also that the accused person is being dealt with fairly, and it is salutary that prosecutors should, where appropriate, and within reasonable limits, openly state what is being done, and why.
[83] (1970) 17 FLR 65, 70.
The position in South Australia as at 1921 and today
It appears from the above discussion that as at 1921, when s 69 was first enacted in the Justices Act 1921, it would have appeared quite useful to address the various doubts and debates that still existed at that time (and were to last for some considerable time after 1921 in other jurisdictions). The South Australian Parliament may well have wished to sensibly and cohesively address these matters by the enactment of s 69 in the brand new Justices Act 1921.
By contrast, the “Collis construction” really makes no logical sense. It assumes, contrary to all authority, that the complainant has an unfettered right to withdraw at any time up to the completion of the last closing address (or address in reply if applicable) and proceeds to give the operation of s 69 a very restricted ambit, namely the time between the end of closing addresses and the pronouncement of judgment.
This may be a very narrow ambit indeed. Thus, take the case of the Magistrate giving an ex tempore judgment immediately following the completion of addresses; here the ambit of the application of s 69 equates to that shortish period of time during which the Magistrate clears his throat between the last word of addresses and the first word of his judgment. Or, take the case of the Magistrate who, immediately following the completion of addresses, announces that he will reserve judgment and accordingly adjourns the court and leaves the bench. Here the ambit of application of s 69 is restricted to situations where, for some reason, the complainant later decides to withdraw and presumably wishes to attempt to reconvene the court to apply to do so. Again, this seems likely to be a very rare event, particularly given that the complainant will presumably have no further information at that stage than he had had prior to the completion of addresses (and, according to the Collis construction, at which earlier time he would have had an unfettered right to withdraw). It seems highly unlikely that this is the lonely and strange role that Parliament intended for s 69.
Statutory interpretation of a “proviso”
It would appear that the only reason one would adopt the “Collis construction” would be if one were required to do so by a rigid rule of statutory construction applicable to the “proviso” in s 69. With respect, Vanstone J’s statement that “as a matter of statutory construction, the proviso to a clause only qualifies that which precedes it” is too absolute a statement and, in the present context, is incorrect.
As to the correct approach to words such as ‘proviso’ or ‘provided that’ in the context of statutory interpretation, I note that Pearce and Geddes state:[84]
Provisos and Exception Clauses
4.55 The form of drafting whereby exceptions introduced by the words ‘Provided that’ are added to a section of an Act – a practice long disparaged by good drafters (‘That bane of all correct composition: George Coode, On Legislative Expression, 1843) – is still employed on occasions. Where a section has been drafted in this manner, the proviso is not to be treated as in any way inferior to the rest of the section. It is but a drafting style and the words of the proviso must be given their full effect: Jennings v Kelly [1940] AC 206 at 229 per Lord Wright; Leveridge v Kennedy [1960] NZLR 1; cf, however, Vaisey J in Leah v Two Worlds Publishing Co Ltd [1951] 1 Ch 393.
…
The leading Australian statement of the effect of a proviso is that of Latham CJ in Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 274-5:
As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is ‘dependent on the main enactment’ and not an ‘independent enacting clause: Cf R v Dibdin [1910] P 51 at 125. But though a provision framed as a proviso ought to be drafted and generally should be construed only as such, a consideration of both the main and the subsidiary provisions of an enactment may show that the proviso contains matter which is really ‘in substance a fresh enactment, adding to and not merely qualifying that which goes before’ (Rhondda Urban District Council v Taff Vale Railway Co (1909) AC 253 at 258).
On the last point of a proviso adding to and not qualifying the provision that precedes it, see Commissioner of Stamp Duties v Attwill [1973] AC 558 at 561. These approaches have been applied according to circumstance in Datt v Law Society of New South Wales [1981] HCA 44; (1981) 148 CLR 319 at 334; 35 ALR 523 at 534 and Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79 at 90-1; 40 ALR 213 at 220. See also Vines v Djordjevitch (1955) 91 CLR 512 … (Emphasis added)
[84] D Pearce & R Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014) 201-202.
As is frequently the case, it is difficult to improve upon the authors’ succinct statement. I simply reproduce some salient statements from the authorities. In Jennings v Kelly, Viscount Maugham said:[85]
It cannot, I think, be disputed that in construing a section of an Act of Parliament, it is constantly necessary to explain the meaning of the words by an examination of the purport and effect of other sections in the same Act … This principle is equally applicable in the case of different parts of a single section, and none the less that the latter part is introduced by the words ‘provided that’ or like words. There can, I think, be no doubt that the view expressed in Kent’s Commentaries on American Law (cited with approval in Maxwell, p 140) is correct: ‘The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail’.”
[85] [1940] AC 206, 218.
And Lord Wright said in that same case:[86]
It is said that where there is a proviso, the former part, which is described as the enacting part, must be construed without reference to the proviso. No doubt there may be cases in which the first part is so clear and unambiguous as not to admit in regard to the matters which are there clear any reference to any other part of the section; the proviso may simply be an exception out of what is clearly defined in the first part, or it may be some qualification not inconsistent with what is expressed in the first part. But in the present case, not only is the first part of the section deficient in express definition, but the second part is complementary and necessary in order to ascertain the full intention of the legislature. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest. I do not think that there is any other rule even in the case of a proviso in the strictest or narrowest sense. Still less, where, as here, the introduction of the second part by the word ‘provided’ is in a strict sense inapt.
[86] [1940] AC 206, 229.
And in Stamp Duties, Commissioner of (NSW) v Atwill, Viscount Dilhorne, delivering the judgment of the Privy Council, stated:[87]
The decision of the majority of the High Court was thus based on the view that the proviso was a true proviso limiting or qualifying what preceded it.
Their Lordships are not able to agree with this conclusion. While in many cases that is the function of a proviso, it is the substance and content of the enactment, not its form, which has to be considered, and that which is expressed to be a proviso may itself add to and not merely limit or qualify that which precedes it. …
[87] (1972) 126 CLR 665, 668 (Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Simon of Glaisdale and Sir Richard Wild).
In Leveridge v Kennedy, Henry J stated for the New Zealand Court of Appeal:[88]
It is no doubt a general rule of construction that a proviso is intended to operate by way of qualification on, or exception out of, something which would otherwise be within the ambit of the substantive or enacting provision: No-Nail Cases Pty Ltd v No-Nail Boxes Ltd [1944] KB 629, 637; [1944] 1 All ER 528, 529. But, as the judgment of the Court in that case went on to say, the object of the rule is to ensure that effect shall be given to the true intention of the Legislature, and it is not designed for the purpose of defeating that intention. It is the substance, and not the form, of the enactment that is to be regarded. The mere use of the words “provided that” does not always mean that what follows is a true proviso on what has gone before, for it may add to, and not merely qualify, what has gone before: Rhondda Urban District Council v Taff Vale Railway Company [1909] AC 253, 258; Egham and Staines Electricity Co Ltd v Egham Urban District Council [1942] 2 All ER 154, 156. (Emphasis added)
[88] [1960] NZLR 1, 6.
I consider that the conventional construction is correct. The sections from s 61 to s 68 inclusive of the SPA deal with various aspects of the hearings,[89] with s 68 dealing with the procedure to be adopted when a defendant pleads not guilty at a trial. Section 69 commences by dealing with what is to be done after the parties and their evidence have been heard but then, through the perhaps clumsy device of a proviso, qualifies not just the approach in s 69 itself but also the preceding sections by providing for an additional and alternative way in which a summary offence may be dealt with, namely by a withdrawal at any time with the sanction of the court.
[89] The term hearing is taken to include all court hearings and not just a trial.
Conclusion as to jurisdiction
For all of the above reasons, I find that the order refusing costs was a final order and that accordingly this Court has jurisdiction to hear this appeal.
Finally, I mention for completeness that counsel for the respondent conceded that I might proceed by way of s 42(1a)(c) of the Magistrates Court Act 1991 if I found that there are “special reasons” here. He referred to the decision of Kelly J in Uzzell v Police where in similar factual circumstances, Kelly J stated:[90]
Nevertheless I also consider that the amendment to s 42(1a) of the Magistrates Court Act by the insertion of subsections (a), (b) and (c) as discussed previously, is pertinent to the outcome of this appeal.
I take the view that there are special reasons within the meaning of s 42(1a)(c) why it is now in the interests of the administration of justice to give the appellant permission to appeal against the erroneous discretion exercised by the Magistrate in refusing costs.
[90] [2017] SASC 143, [26]-[27].
I indicate that I certainly consider that there are special reasons here and that I also proceed on that alternative legal basis if, as the respondent considers, it is available to me.
PART 4: AWARD OF COSTS AND QUANTUM
An award of costs in favour of the appellant
The grounds of appeal have been fashioned above at paragraphs [20] and [21] as “A” and “B”. I consider that both grounds have been made out, as is self-evident from the reasons above.
As to ground A, the Magistrate fell far short in discharging his obligations to the appellant; he should have advised the appellant of his right to either oppose the application for withdrawal or to seek that the payment of his expenses be made a condition of any such withdrawal.[91] I note that Magistrates Court Rule 26.04 provides that “insufficient compliance with this Rule must be taken into account on the question of costs”. It is difficult to imagine a worse case of the Rules being flouted by the prosecution, including the failure to notify the defendant that they did not intend to proceed with the trial, and yet the Magistrate made no mention of the salient matters at all.
[91] Reference may be made to the remarks of Lord Parker CJ in R v Phipps; ex parte Alton [1964] 2 QB 420 reproduced above at paragraph [93].
As to ground B, it was not open to the Magistrate to interpret the appellant’s application for “costs” as meaning an application for legal costs, and then to dismiss the application because he had no lawyer. Clearly, the appellant was applying for whatever monetary sum was available to him and the Magistrate was required to address that matter. His Honour failed to do so.
Quantum of the award
In Willing v Hollobone, the facts of which are summarised above, Bray CJ (with whom Hogarth and Sangster JJ agreed) considered that:[92]
It might be sufficient to say that the applicant, as a party appearing in person who is not a legal practitioner, is not legally entitled to any costs, however complete his victory, except his out-of-pocket expenses including, besides any actual disbursements by him, his travelling expenses to get to and from the court on the occasion of any necessary appearances before the court and the costs of sustenance if he is forced to stay away from home to attend the court, and also some allowance for the time actually occupied in appearing before the court while it is sitting (see Butterworth’s Costs, 2nd ed Vol 1, p73). Even the right to the last class of expenses may not be free from doubt.
(Emphasis added)
[92] [1972] 3 SASR 532, 533.
And further:[93]
But a party not a legal practitioner taking his own case and succeeding has never been allowed compensation for his loss of time spent in preparing the case for trial, although if he had employed a solicitor he would have been allowed the solicitor’s costs for doing the same thing. This may appear unjust and anomalous to the applicant, but if it is an anomaly it is not the only one in the law and we are powerless to change the law in this respect …
It is clear law, therefore, that the applicant is not legally entitled to any more costs on the withdrawal of the complaint than he would have got if it had been dismissed and that the only costs to which he was entitled in either event were the cost of his travelling expenses to and from the court on each day he attended before or during the hearing, plus the cost of his sustenance if he was forced to stay away from home for that purpose, plus, arguably, an allowance for his loss of time while he was actually attending before the court during the hearing. The right to the last is not completely clear, but presumably if the case had come on he would have been a witness and a witness is entitled to his witness fee, even if because of settlement, adjournment or the like he is not called, provided he was in attendance and would have been a necessary witness if the case had proceeded. (Emphasis added)
[93] Ibid, 534-535.
In Kelly v Noumenon Pty Ltd, the Full Court considered whether a Magistrate had a discretionary power to award costs to a successful complainant of a summary offence in respect of the attendance by a prosecutor who was not a legal practitioner. There, King CJ (with whom Prior J agreed) noted that costs orders made in favour of a successful litigant “do not include compensation for his own time spent instructing his solicitor or otherwise in connection with the case”.[94] His Honour, while warning against any relaxation of that rule, however considered:[95]
The rule that a party is not compensated for time spent in connection with the litigation applies even where the party conducts his own case, Oliver, The Law of Costs, p 66 and cases there cited, especially London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 at 875. It would seem, however, that some modest relaxation of the application of the rule to a litigant conducting his own case is now called for. In Willing v Hollobone (1972) 3 SASR 532 the right to an allowance for time actually occupied in appearing before the court when it is sitting, where the litigant is not a witness, was said to be not “altogether free from doubt” and “not completely clear”: per Bray CJ at 534 and 535.
[94] (1988) 47 SASR 182. His Honour referred to Ogier v Norton (1904) 29 VLR 536; United Hand-In-Hand and Band of Hope Company v National Bank of Australasia (1878) 4 VLR E 271; and Harbin v Gordon [1914] 2 KB 577; Russo v Russo [1953] VLR 57 in support.
[95] Ibid, 185.
King CJ later went on to say:[96]
Willing v Hollobone (supra) is clear authority for the proposition that the costs recoverable by a legally unqualified party to a prosecution appearing in person are limited to:
... his out-of-pocket expenses including, besides any disbursements by him, his travelling expenses to get to and from the court on the occasion of any necessary appearances before the court and the cost of sustenance if he is forced to stay away from home to attend the court and also some allowance for the time actually occupied in appearing before the court while it is sitting. (Emphasis added)
[96] Ibid, 187.
Whatever nuances may be read into statements by single Judges, the combined effect of the Full Court decisions in Willing and Kelly v Noumenon Pty Ltd is that a person in the position of the present appellant whose charge is dismissed or withdrawn is prima facie entitled to a monetary award comprising amounts referable to:
-any necessary disbursements paid by him;
-his travelling expenses to get to and from the court on the occasion of any necessary appearances before the court;
-any other out-of-pocket expenses including the cost of sustenance if he is forced to stay away from home to attend the court; and
-some allowance for the time actually occupied in appearing before the court while it is sitting.
The discretion of a Magistrate to award costs pursuant to s 189 of the SPA is broad. I remind myself that costs are compensatory and not meant to punish the person or entity against whom they are ordered.
The defendant was required by force of law to attend at court on six occasions. One occasion was a pre-trial conference and another was a trial set down for a full day; as to the other four occasions, he had no option but to attend. He is entitled to something for his time occupied in appearing before the court while it is sitting. On each occasion he had to drive his own vehicle just under 40 kilometres each way; he is entitled to something for his travelling expenses.
The appellant has claimed $70.00 all-inclusive for each of his six attendances at court. I consider that that is quite reasonable and that the police are hardly in a moral or legal position to argue to the contrary. In the exercise of my discretion, I award costs to the appellant for his appearances in the Magistrates Court in the lump sum of $420.00.
Costs of the appeal
I award the appellant costs of the appeal. They will include the filing fee of $232. I will hear the parties as to what other amount should be ordered.
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