POLYCARPOU v Police

[2008] SASC 113

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLYCARPOU v POLICE

[2008] SASC 113

Judgment of The Honourable Justice Debelle (ex tempore)

28 April 2008

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT

Costs – award of costs to successful defendant – magistrate ordered that costs be paid in accordance with scale of costs in First Schedule of Magistrates Court Rules 1992 – no justification for departure from an order that costs be paid in accordance with scale – whether magistrate erred in fixing costs according to scale – held, magistrate did not err but had incorrectly calculated costs – appeal allowed.

Road Traffic Act 1961 s 45; Summary Procedure Act 1921 s 189(1); Magistrates Court Rules 1992 R 51.01, R 51.02, R 51.03, First Schedule, referred to.
Curnow v Police [2008] SASC 84, applied.
Hamdorf v Riddle [1971] SASR 398; Ling v Police (1996) 90 A Crim R 376, considered.

POLYCARPOU v POLICE
[2008] SASC 113

Magistrates Appeals

1. DEBELLE J:        This is an appeal against an order for costs made in the Magistrates Court.

2. On 28 March 2006 the appellant was involved in a chain collision near the corner of North East Road and Nottage Terrace, Collinswood. She was charged with driving a motor vehicle without due attention contrary to s 45 of the Road Traffic Act1961. She pleaded not guilty. The trial was heard by a magistrate on 7 February 2008. He found that the appellant was not guilty.

3. The appellant applied for an order that the respondent pay her costs totalling $6,071.73. The application was opposed. The magistrate adjourned the application to the following day. After argument on 8 February, the magistrate concluded that an order for costs should be made in favour of the appellant and that those costs should be upon the scale of costs prescribed in the First Schedule.  He said:

   This is a minor matter with quite straight-forward issues, simple and no complexities of fact, so in my view the scale should apply. The defendant should have costs, applying the scale and inclusive of GST of $3025.

   The appellant is dissatisfied with the order that her costs should be limited to $3,025.  She has appealed against that decision. The appellant seeks an order for costs in such amount as this Court sees fit.

4. As this is an appeal against an order as to costs, there is a question whether the appellant must obtain permission to appeal. I examined the question whether permission is required in Curnow v Police [2008] SASC 84 at paragraphs 8-10. For the reasons then expressed, I do not think that the appellant has to apply for permission to appeal. In any event and out of an abundance of caution, the appellant has applied for permission to appeal. The respondent does not oppose the application. An important question in this appeal is whether the appellant is entitled to be reimbursed for substantial disbursements incurred by her in retaining expert advice. That is sufficient reason for granting permission. I will, therefore, grant permission to appeal.

5. The offence with which the appellant was charged was a very run-of-the-mill offence in the Magistrates Court. It was a driving offence of a kind that is frequently heard in that court. There were the usual hearings to fix a date for trial. The trial itself began on 7 February 2008 and concluded the same day. The prosecution called police and civilians as witnesses. The defendant gave evidence herself and called Mr C. Hall, a person who gives evidence as to the causes of vehicle accidents and issues relating to such accidents. The magistrate gave an ex tempore decision. In acquitting the appellant, the magistrate relied on Mr Hall’s evidence.

6. The power to award costs in summary proceedings is prescribed by s 189(1) of the Summary Procedure Act 1921 which provides:

   Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.

   There is no other provision in s 189 which is relevant in this appeal.  Section 189(1) invests the court with a wide discretion: Hamdorf v Riddle [1971] SASR 398 and Ling v Police (1996) 90 A Crim R 376 at 384.

7. It is necessary to consider also Rules 51.01, 51.02 and 51.03 of the Magistrates Court Rules 1992 which provide:

   51.01  Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful     party.

   51.02 For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.

   51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.

   Rule 51.01 recapitulates the effect of s 189(1). Rule 51.01 cannot qualify or restrict the wide discretion invested in the Magistrates Court by s 189(1).  A rule of court cannot qualify a provision in an Act of Parliament in the absence of some authority in that Act to do so. Rule 51.02 has no present application.  Rule 51.03 deals with the amount to be awarded for costs.

8. In Curnow v Police I examined the issues relating to the exercise of the discretion as to costs. It is unnecessary to repeat that discussion. I adopt it for present purposes. It is necessary only to note that I emphasised that s 189(1) invests a magistrate with a wide discretion as to costs. A magistrate is able to award costs on the rate fixed by the scale in the First Schedule or on some other appropriate basis.

9. The appellant contends that this is a case that justifies an award higher than that allowed by the scale in the First Schedule. The appellant does not contend that this is an appropriate case for payment of indemnity costs. That is a proper concession. In no respect is this a matter suitable for payment of indemnity costs. It was, as I have said, a run-of-the-mill matter in the Magistrates Court. The fact that the appellant had retained an expert to provide evidence in support of her defence does not alter that fact.

10. The magistrate has decided that the scale of costs prescribed in the First Schedule is the appropriate basis upon which to award costs. As he said, this was a minor matter with quite straight-forward issues. It is not possible to disagree with that description of the charge. It has not been demonstrated that the magistrate has erred in deciding that the matter is one which should be addressed by the scale of costs prescribed in the First Schedule.

11. There is, however, a real issue as to whether the magistrate has correctly calculated the costs. The magistrate did not say how he had calculated the amount of $3,025.  However, even a brief perusal of the scale in the First Schedule shows that the magistrate has made an inadequate allowance for those costs. It is apparent that the magistrate has made an arithmetical error which is of substantial prejudice to the appellant.  It is, therefore, proper to review the exercise of the magistrate’s discretion as to the amount of costs to be awarded.

12. It is desirable that magistrates making orders as to costs should state the items which have been allowed. That is not a task which will unduly delay a magistrate given that the First Schedule sets out a scale with relatively few items to enable a ready assessment of the amount of costs. It is a far cry from a bill of costs requiring detailed taxation.

13. In this matter it is appropriate to allow the following items.

    Item

    1                Instructions  $600

    2                All other aspects  $600

    3                Pre-trial conference  $150

    4                Attendance at 3 hearings               $180

    before pre-trial conference

    6                Arranging attendance of                 $40
      witnesses

    8                Counsel fees  $600

    5                Attendance on detailed                 $100
      argument as to costs
                    $2,270

    I have allowed a counsel fee of $600. The difference between items seven and eight of the First Schedule is not clear. On any view of the matter counsel is at least entitled to as much as $600 on the first day of the hearing of this kind. It would assist if the difference between items seven and eight were clarified by an amendment to the schedule.

14. I turn to the witness fees. The issue here is whether the appellant is entitled to recover the whole of the disbursements she has incurred in retaining Mr Hall. She claims $1,260 being the fee paid to Mr Hall for his report and $1,000 being the fee paid to Mr Hall for his attendance at the court. Under the heading “Witness Fees” in the First Schedule a fee of $250 or such other amount ordered by the court is allowed for an expert’s report. In addition, a fee of $450 or such other amount as is ordered by the court is allowed as the witness fee for a professional, scientific or other expert witness.

15. In my view it is proper the appellant should recover the whole of the fee of $1,260 paid for the report from Mr Hall.  As the respondent emphasises, although the report is short, it cannot be known how much work was incurred in the preparation of that report.  It is apparent that some detailed examination and assessment was necessary.  The fee charged to attend as a witness is high and more than twice the amount allowed on the scale. In my view on a party and party taxation the whole of that fee cannot be recovered. It should, however, be more than $450. I would allow a fee of $600.  In the result a further $1,860 must be added to the amount of $2,270 allowed for legal fees making a total of $4,130. I infer that GST has already been included in the fees charged by Mr Hall.  GST will be allowed on the sum of $2,270. The total sum to be awarded to the appellant for her costs is therefore $4357.

16. For these reasons I allow the appeal. The appellant will be entitled to recover a total of $4,357 costs. The orders of the court will therefore be:

    1Appeal allowed.

    2Set aside the order of the magistrate made herein on 8 February 2008 and in its place order that the respondent pay the appellant’s costs in the sum of $4357.

    3That the respondent pay costs of this appeal in the sum of $150 as well as the fee to file the notice of appeal herein.