Schloithe v Police
[2011] SASC 156
•9 September 2011
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SCHLOITHE v POLICE
[2011] SASC 156
Judgment of The Honourable Justice White (ex tempore)
9 September 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
The appellant was charged with two offences in the Magistrates Court - He was granted bail, but failed to appear in Court until he was arrested 18 months later - Following his arrest, the prosecution tendered no evidence on both charges, and they were dismissed -
The Magistrate refused the appellant's application for costs.
Held: Whilst brief, the Magistrate's reasons explained adequately the refusal to award the appellant his costs - Conduct by a litigant prolonging the conduct of proceedings may be a relevant factor in the exercise of the costs discretion - It was reasonable for the Magistrate to take into account the appellant's conduct causing a delay in the resolution of the proceedings - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 169; Summary Offences Act 1953 (SA) s 17; Summary Procedures Act 1921 (SA) s 189; Supreme Court Civil Rules 2006 (SA) r 51; Magistrates Court Rules 1992 (SA) r 288, referred to.
Konieczka v Police [2006] SASC 288; Police v Pericic (2008) 100 SASR 141; Curnow v Police (2008) 100 SASR 290; Jones v Police [2009] SASC 137; Polycarpou v Police [2008] SASC 113; Van Gils v Police [2008] SASC 270; House v The King (1936) 55 CLR 599; Latoudis v Casey (1990) 170 CLR 534, considered.
SCHLOITHE v POLICE
[2011] SASC 156Magistrate Appeal (ex tempore)
WHITE J. This is an appeal against a Magistrate’s costs decision in summary proceedings. The Magistrate dismissed two charges against the appellant when the prosecution presented no evidence to support those charges. The Magistrate declined however to make a costs order in favour of the appellant.
The appellant and a Mr Finn were first charged on an information and summons with two offences: aggravated criminal trespass in non-residential premises[1] and theft.[2] The offences were alleged to have been committed between 10 and 13 July 2008. Both men appeared in the Berri Magistrates Court on 27 April 2009 and were granted bail. However the appellant did not answer his bail at the next Court appearance on 9 June 2009 and his whereabouts remained unknown until he was arrested some 18 months later, on 4 January 2011.
[1] Contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[2] Contrary to s 134(1) of the CLCA.
During the appellant’s absence, Mr Finn engaged in some negotiation with the prosecution. That negotiation resulted in the prosecution laying a complaint on 1 July 2009 charging both the appellant and Mr Finn with offences of being unlawfully on premises[3] and theft. Mr Finn pleaded guilty to those charges on 14 July 2009 and they were finalised that same day. At the same time the prosecution tendered no evidence on the original charges against Mr Finn and they were dismissed.
[3] Contrary to s 17(1) of the Summary Offences Act 1953 (SA).
Following his arrest in January 2011 the appellant appeared in Court either in person or by counsel on four further occasions. On the last of those occasions, 8 July 2011, the prosecution tendered no evidence on all charges. Both the original information and summons and the later complaint were dismissed. The appellant’s counsel applied for an order for costs in his favour. As I noted at the commencement of these reasons, the Magistrate refused that order.
The Magistrate’s reasons are brief and, with respect to him, not altogether clear. They seem to be to the effect that the proceedings were longstanding (“I also note the vintage of these matters”), that the appellant had had legal representation for only a limited period, and that the matter had reached only the pre-trial conference stage. Although the Magistrate did not say so expressly, it does seem implicit in his reasons that he was concerned that the appellant had contributed to the delay in the proceedings being finalised.
The appellant appeals against the Magistrate’s costs decision. Having regard to the terms of r 288(1)(b) of the Supreme Court Civil Rules 2006, there is a question as to whether or not the appeal lies only with permission. Although the parties did not touch on this question in their submissions, I am inclined, out of an abundance of caution, to grant the appellant permission to appeal to the extent that it may be necessary.
Section 189(1) of the Summary Procedure Act 1921 (SA) vests the Magistrate’s Court with a general discretion with respect to costs. It provides:
Subject to this section, the court may award such costs for or against a party to proceedings as the court thinks fit.
Section 189, however, also makes it plain that when exercising the discretion with respect to costs the Magistrates Court may take into account the conduct of the parties or their representatives which has delayed or increased the cost of the proceedings. I refer in this respect to sub-ss (3), (4) and (5):
(3)If proceedings are delayed through the neglect or incompetence of a legal practitioner, the Court may—
(a) disallow the whole or part of the costs as between the legal practitioner and his or her client (and, where appropriate, order the legal practitioner to repay costs already paid);
(b) order the legal practitioner to indemnify his or her client or any other party to the proceedings for costs resulting from the delay;
(c) order the legal practitioner to pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted.
(4)If proceedings are delayed through the neglect or incompetence of a prosecutor who is not a legal practitioner, the Court may order the Crown, or, where the prosecution is brought on behalf of a body that does not represent the Crown, that body, to indemnify any party to the proceedings for costs resulting from the delay.
(5)If proceedings are unreasonably obstructed by a party or a witness, or proceedings are delayed through the failure of a party or a witness to appear before the Court when required to do so, the Court may make either or both of the following orders:
(a) an order that the party or witness indemnify any party for costs resulting from the obstruction or delay;
(b) an order that the party or witness pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted in consequence of the obstruction or delay.
It can be seen that sub-s (5) empowers a court to make orders requiring a party who has delayed proceedings by failing to appear before the court when required to do so to pay costs to another party or to the Consolidated Revenue. Section 189(5) is not to be understood as stating exhaustively the manner in which account may be taken of dilatory and defaulting conduct by one party but it does, in my opinion, indicate a legislative intention that the failure of a party to appear before a court when required to do so, which results in a delay in the disposition of the proceedings, may be reflected in a costs order.
I was referred to r 51 of the Magistrates Court Rules 1992 which provides:
51.01Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
It is not necessary to discuss r 51 in any detail. It cannot detract from the general discretion with respect to costs contained in s 189(1). In any event, r 51 is, on its own terms, made subject to the provisions of the Summary Procedure Act, including s 189, and subject to any contrary order of the Court.
It is true that there is Full Court authority (Konieczka v Police[4]) which suggests that r 51 creates a presumptive norm which is to be departed from only in special circumstances. For the reasons which I gave in Police v Pericic,[5] I consider, with respect, that that view of r 51 is inappropriate. In the later decision of Curnow v Police,[6] Debelle J gave another explanation of the decision in Konieczka. Whether or not the decision in Curnow involves some revisionism in relation to the decision in Konieczka need not be addressed. What is plain is that s189(1) should now be regarded as vesting in the Magistrates Court a general discretion with respect to costs, both as to liability and amount, and that r 51 is not to be regarded as qualifying that general discretion. This has been recognised in a number of the later decisions, including Jones v Police,[7] Polycarpou v Police,[8] and Van Gils v Police.[9]
[4] [2006] SASC 288.
[5] [2008] SASC 59; (2008) 100 SASR 141.
[6] [2008] SASC 84; (2008) 100 SASR 290.
[7] [2009] SASC 137.
[8] [2008] SASC 113.
[9] [2008] SASC 270.
In short, s 189(1) vests a wide and general discretion with respect to costs in a Magistrate. That general discretion is not qualified in any way which is material to the present appeal by any of the other provisions in s 189. The discretion is, of course, to be exercised in accordance with the law and in accordance with settled principles regarding an award of costs, including the principle that ordinarily a successful party is entitled to an award of costs in his or her favour. In the exercise of that general discretion a Magistrate may, when appropriate, award a successful defendant, some or all of his or her costs, or make no order as to costs.
An appeal against a decision on costs is an appeal against an exercise of a general discretion. On such appeals an appellate court intervenes only in the circumstances identified in House v The King,[10] that is to say, it is necessary for the appellant to identify some error in the exercise of the discretion, for example, by the Magistrate having failed to take into account a relevant matter or having taken into account an irrelevant matter, or to establish that the exercise of the discretion was so unreasonable or unjust as to require appellate intervention.
[10] (1936) 55 CLR 499 at 505.
In the present case the appellant argued that the Magistrate had erred by failing to make an order for costs in his favour, given that he was the successful party in the proceedings. He argued that to the extent that his own conduct was relevant, it should have been reflected only in some diminution in the costs to which he was entitled and did not justify depriving him of an order for costs altogether.
Secondly, the appellant argued that the Magistrate’s reasons for his costs decision were so inadequate as, by itself, to warrant this Court considering the costs discretion afresh.
In my opinion, the appellant’s submission concerning the adequacy of the Magistrate’s reasons should not succeed. As I have already indicated, the reasons are not altogether clear but, in my opinion, if understood as outlined earlier, they do explain adequately the Magistrate’s conclusion. This is not a case in which an inadequacy of reasons by itself makes it appropriate for this Court to consider the costs discretion afresh.
I am also satisfied that the appellant has not established any error of the kind which would entitle this Court to interfere with the exercise of the Magistrate’s discretion. Nor has he established that the Magistrate’s decision is plainly unjust or unreasonable.
The appellant submits that the prosecution case should have been recognised right from the outset as having been weak. It is very difficult for this Court, and for that matter, the Magistrate, to make an assessment of that and, to my mind, it is not necessary to do so. It is sufficient to note that ultimately the prosecution chose not to press the charges and presented no evidence.
The significant feature in this case is that the appellant was granted bail on 27 April 2009 but did not answer that bail on 9 June 2009, or for that matter on 14 July 2009, being the dates upon which the Magistrate Court had listed further hearings.
The appellant’s co-accused was sentenced on 14 July 2009. If the appellant had pleaded guilty, it seems likely that the charges against him would also have been finalised at that time. If the appellant had pleaded not guilty at that time, it is still likely that, had he not absconded, the charges would have been finalised sometime in 2009. In other words, the appellant’s conduct caused significant delay, and also caused the prosecution to incur additional expense and inconvenience.
In my opinion, it was appropriate for the Magistrate to take into account the appellant’s conduct in absconding and causing a delay in the resolution of the proceedings. I have already indicated that s 189(5) is a legislative endorsement of that approach. Even in the absence of a legislative endorsement, the cases indicate that conduct by a litigant prolonging proceedings may be a relevant factor in the exercise of the costs discretion.[11]
[11] See, for example, Latoudis v Casey (1990) 170 CLR 534 at 562 (Toohey J).
In my opinion, no error in the exercise of the Magistrate’s discretion has been shown. On the contrary, in my opinion, there would have been some incongruity if the Magistrate had held, despite the appellant’s conduct, that he was nevertheless entitled to an award of costs.
Accordingly, I grant the appellant permission to appeal but dismiss the appeal.
6
9
1