Scott v Police No. Scgrg-98-1255 Judgment No. S6979

[1998] SASC 6979

SCOTT v POLICE

[1998] SASC 6979

Magistrates Appeal

1 WICKS J                  This is an appeal from a decision of a Magistrate refusing to dismiss a complaint and summons which was alleged by the appellant to be an abuse of process.
2 The complaint alleged that on 24 October 1996 the appellant was the registered owner of a vehicle which was detected by means of a photographic detection device having committed an offence against s49(1)(a) of the Road Traffic Act 1961. The appellant was convicted of the offence by two Justices of the Peace sitting as the Magistrates Court at Elizabeth on 10 October 1997. Costs of $220 were awarded against the appellant.
3 The appellant appealed against the conviction and on 27 January 1998, upon hearing the appeal, Matheson J made the following orders:

1      That the appeal be allowed.

2      That orders of the learned Justices be set aside.

1. That the matter be remitted to a Magistrates Court at Elizabeth for rehearing before a Magistrate.

1. That the question of costs be adjourned sine die.

4 Following the appeal a discussion ensued on or about 10 February 1998 between the appellant and the Director of Public Prosecutions in relation to the above complaint and summons. After that meeting Mr Rofe wrote to the appellant in the following terms:
"I confirm my advice to you during our meeting on 10 February 1998 that there will be no further action taken to enforce the above expiation notice.  The matter has been sent back to Elizabeth Magistrates Court by Justice Matheson.  I will direct the prosecution to withdraw the matter.  As discussed there will be no order as to costs.  I understand that you will contact Ms Gabrielle Martin of the Crown Solicitor’s Office with respect to the costs of the appeal before Justice Matheson which question was adjourned to a date to be fixed.

My decision does not reflect any view as to the merits of the case.  I do not consider it in the public interests to expend any further time or resources in attempting to resolve the matter."

5 It is not clear what happened after that letter but it would appear that there was a difference of opinion between the appellant and Mr Rofe with regard to the question of costs.
6 On 26 February 1998, Mr Rofe wrote again to the appellant in the following terms:
"Following our conversation of 10 February 1998, I directed police prosecution to withdraw the prosecution on the basis that there would be no order as to costs of the prosecution.  This was my clear understanding of what I conveyed to you at our meeting.  The costs of the Supreme Court appeal were to be resolved between yourself and Ms Martin of the Crown Solicitor’s Office or failing agreement by the Supreme Court.

I understand that you have advised the police that you will be applying for costs in the sum of $1,670 if the police withdraw the prosecution.  My agreement to withdraw the prosecution was an attempt to save you and the public further costs in this matter.  It was never part of the agreement that you would be recompensed for costs incurred to date although I accept you did inform me that you had incurred such costs.

I regret that in the circumstances I must revoke my direction to the police to withdraw the matter which can proceed again to trial according to the order made by Justice Matheson.  Unfortunately this will involve you incurring further costs in the event of your conviction, a situation I had hoped to avoid."

7 The hearing of the above complaint and summons proceeded at the Elizabeth Magistrates Court on 3 August 1998.  At the outset of the proceedings, there was an exchange between the learned Magistrate and the appellant as follows:
"HIS HONOUR:         Are you ready for the matter to be proceeded with today.
MR SCOTT:                I am your Honour, but first of all I would like to make an application to have the matter dismissed because I believe there has been a gross abuse of process.
HIS HONOUR:          You are about to make an application for dismissal of the matter on the basis of there being an abuse of process, Mr Scott.
MR SCOTT:                That’s correct, your Honour.  I have some documents here.  It’s on the basis of two letters that were sent to me.  One on 10 February 98 and one on 26 February 98 by the Director of Public Prosecutions.  I went and discussed this matter with him at the suggestion of Matheson J and the result was he decided not to go on with it and as he says quite clearly in the last sentence of the letter on 10 February, and he hasn’t qualified this in any way, he says ‘I do not consider it in the public interest to expend any further time or resources attempting to resolve the matter’.  Then I informed him that I had costs at that stage of somewhere between 17 and 21 times the amount of the fine we were talking about.  I don’t know where he gets the idea of agreements, there was no agreements to this.
HIS HONOUR:          I don’t know what you are talking about so I had better read it I think before you say any more about it."

8 According to the transcript, there was some further discussion on the abuse of process point following which it would appear that the learned Magistrate made a ruling in the following terms:
"Mr Rofe’s letters do not disclose that the present proceedings are brought for an improper purpose but rather indicate that his decision to advise Mr Scott that no further action would be taken was based on his, Mr Rofe’s, understanding that Mr Scott would not seek any costs in the matter.  Apparently this is not the case and thus the decision not to proceed was revoked.  I do not consider that proceeding with the matter under these circumstances constitutes an abuse of process."

9 The appellant’s application to dismiss the complaint as an abuse of process was then itself dismissed.
10 The learned Magistrate proceeded with the hearing of the case.  He found no case to answer and acquitted the appellant.  He awarded costs in the sum of $824 to be paid by the respondent and gave the respondent three months within which to pay that amount.
11 On 28 August 1998, the appellant appealed to this Court against the order dismissing the appellant’s application for dismissal of the complaint in the Magistrates Court as an abuse of process.
12 On 1 October 1998 the appellant filed a Notice of Amended Appeal.  The relief sought in this further document was as follows:

1. An appeal against the dismissal of an application for dismissal of the charge on the grounds of abuse of process on 3.8.98.  The finding was that there was no abuse of process.  This is appealed on the grounds that the judgment was wrong.

1. That in awarding costs in the matter of $824 the Magistrate erred in that the amount fell well short of the true cost to myself after the matter was dismissed after one year and ten months and nine court days with no case to answer.

13 The first question to consider is the issue of abuse of process.  An order dismissing an application for dismissal of the complaint in the Magistrates Court is clearly an interlocutory order.  It does not finally determine the rights of the parties.  In fact, in this case, the matter proceeded to a dismissal of the complaint on the same day.
14 Section 42 of the Magistrates Court Act 1991 provides as follows:
"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).

(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.

(2) The appeal lies -

(a)     in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence - to the Industrial Court; or

(b)     in any other case, to the Supreme Court.

(3) - (6)     ..."

15 Subsection 42(1a) is clear in its terms.  It forbids this Court from hearing an appeal in respect of an interlocutory judgment or order.  The rationale behind this is that parties to an action should not be permitted to rush off to an appellate court over ancillary matters but that these should be dealt with as part of an appeal arising from the overall decision at the conclusion of the trial.
16 In my opinion, in the light of the terms of s42(1a) of the Magistrates Court Act, this Court has no jurisdiction to hear an appeal from the Magistrates Court against the dismissal of an application to dismiss the complaint in the action as an abuse of process. This arises from the fact that the order appealed from is an interlocutory order.
17 The complaint against the appellant was dismissed so that the application to dismiss on the ground of an abuse of process became unnecessary.  At this stage the proceedings before the Magistrates Court have ceased.  There is nothing left to dismiss.  This is an additional reason why the first paragraph of the ground of appeal should be dismissed.  At this stage the question of abuse of process has become academic.
18 I turn to the second area of complaint in the Amended Notice of Appeal - the question of costs.
19 Costs are awarded in the criminal jurisdiction of the Magistrates Court.  Section 189 of the Summary Procedure Act 1921 provides:
"The Court may award such costs for or against a party to proceedings as the Court thinks fit."

20 This leaves a magistrate with a substantial discretion as to whether costs will be ordered and as to their quantum.  As Lander J put it in Worth v Police (S6674, 6 May 1998, unreported):
"[T]he learned Magistrate’s discretion ought not to be interfered with, unless it can be shown that he acted under some error of principle, or took into account facts which were irrelevant to the exercise of the issue of discretion, or ignored facts which were relevant to the exercise of the discretion, or somehow misapprehended or misapplied the facts. In particular, however, an order for costs should only be interfered with where the exercise of the discretion has been so unreasonable or unjust, or unless a substantial injustice is disclosed so as to require the appellate court to substitute its own discretion: SA Police v Leonard (1995) 64 SASR 390 at 394, Kellett v Buchanan (1935) SASR 144."

21 In Latoudis v Casey (1990) 170 CLR 534 at pp542-3, Mason CJ observed:
"It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott (1981) 53 FLR at 111)."

22 Latoudis v Casey establishes a number of general principles which are applicable in awarding costs.  It does not concern itself with detailed rules which are applicable when determining the items which are to be included in the amount ordered to be paid.
23 In Willing v Hollobone (1972) 3 SASR 532, Bray CJ examined the costs to which an unrepresented party is entitled in the event that an order for costs is made in his favour. At p533 he observed:
"                 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 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 (see Butterworth’s Costs 2nd ed. vol. 1, p.73).  Even the right to the last class of expenses may not be altogether free from doubt.  But I do not expect the applicant to be satisfied with these bald statements."

At p534 he continued:
"... now by statute or regulation, witnesses are allowed witness fees for their loss of time in attending the court, in addition to travelling and sustenance expenses.

Once the party became liable to pay the expenses of the witnesses he called or had ready to call, then, no doubt, when he was successful he recovered those expenses as disbursements out of pocket in accordance with the principle just mentioned. When in the nineteenth century a party to an action became capable for the first time of giving evidence in his own suit, he was allowed the cost of getting to the court and the loss of time involved in giving evidence before it on the same basis as any other witness, but not to any great extent (Howes v. Barber (1852) 21 LJQB 254).

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."

24 Bearing these principles in mind, I have looked at the amount claimed by the appellant and the detailed list of expenses which he has provided with his Amended Notice of Appeal.  I have come to the conclusion that even taking into account the proceedings before the Justices of the Peace as well as those before the learned Magistrate, the order made by the learned Magistrate as to costs was generous.
25 Costs in relation to the proceedings before Matheson J are yet to be assessed by a taxing officer of this Court.  Costs of the proceedings before me have yet to be considered following submissions by or on behalf of the parties.
26 I doubt whether the learned Magistrate had any jurisdiction to make an order for costs in respect of the first hearing before the Justices of the Peace.  Matheson J had jurisdiction to make such an order but it appears that he was not at any time asked to do so.  As a rule orders for costs are not made unless they are asked for.
27 In my opinion, the second ground of appeal should be dismissed as well.
28 The final question is the matter of extension of time.  In the light of my decision on the matters the subject of this appeal, it is now unnecessary to consider the question.
29 For these reasons I dismiss the appeal.