Trezise v Police (No 2) - [2009] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TREZISE v POLICE (No 2)
[2009] SASC 254
Judgment of The Honourable Justice Anderson
26 August 2009
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT
PROCEDURE - COSTS - SCALES OF COSTS - DISCRETION TO VARY SCALE
CONVENTION RELATING TO COSTS OF MAGISTRATES APPEALS
Magistrates appeal - appellant found guilty at first instance of assault but no conviction recorded - appealed on the basis that self-defence made out - appellant successful - finding of guilt set aside - application for costs of the trial on the Magistrates Court Criminal scale plus GST and the costs of the appeal in the Supreme Court - Crown argued that appellant should not be awarded GST in addition to scale and should only receive nominal amount of $150 for the appeal in accordance with convention - whether GST included in Magistrates Court Criminal scale of costs - whether convention that only nominal sum awarded for costs of magistrates appeals should be followed - whether costs should follow the event on the appeal.
Held: Supreme Court has wide discretion to award costs - GST not inclusive in Supreme Court Civil scale of costs and is awarded in addition to scale - the same should apply in Magistrates Court - GST awarded to appellant in addition to Magistrates Court Criminal scale of costs - in a magistrates appeal costs should follow the event - convention outdated - out of pocket expenses awarded together with $500 for counsel fees for the costs of the appeal in the Supreme Court.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Supreme Court Civil Rules 2006 Schedule 1; Fauna Conservation Act 1974 (Qld); Justices Act 1886 (Qld) s 214; Supreme Court Act 1935 (SA) s 40, referred to.
Yanner v Eaton (1999) 168 ALR 1, applied.
Trezise v Police [2009] SASC 209; Latoudis v Casey (1990) 170 CLR 534, discussed.

TREZISE v POLICE (No 2)
[2009] SASC 254
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

On 21 July 2009 I gave judgment and published reasons in this matter in an appeal from a magistrate: see Trezise v Police [2009] SASC 209. The successful appellant had been charged with assault causing harm pursuant to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). That is a minor indictable offence. Following a trial in the Whyalla Magistrates Court, the magistrate found the appellant guilty of the offence but declined to record a conviction or impose a penalty.
On appeal I found that the magistrate had erred in relation to her direction to herself about self-defence. I quashed the finding of guilt and entered a verdict of acquittal.
Application for costs
Mr Retalic for the successful appellant applied for costs. His application was two-fold. First, he asked for costs of $4,800 for the trial in the Magistrates Court. This was based on the scale of costs contained in Schedule 1 of the Magistrates Court Criminal Scale of Costs effective from 17 April 2008.
In addition, Mr Retalic asked for costs of the appeal. He sought costs of $2,440, being $2,000 for counsel fees and $440 for preparing the notice of appeal and the supporting affidavit. He also sought a further amount in the sum of $487 comprising disbursements for the filing fee of $149 and $338 for the transcript.
Following the submission on costs, I invited Ms Agnew, counsel for the Director of Public Prosecutions, to obtain instructions on the amounts sought by Mr Retalic. As a result, I was provided with a letter from Ms Agnew indicating that the Crown was not opposing the application for costs in the Magistrates Court trial in accordance with the fees set out in Schedule 1 of the Magistrates Court Criminal Scale of Costs. Ms Agnew submitted that, in relation to the appeal only, the conventional amount of $150 should be allowed. She submitted that it was a conventional amount fixed at a low figure to ensure that appellate proceedings remain accessible and affordable to all parties.
In light of the Crown’s position regarding the costs of the appeal, the matter was called on for further submissions on the question of costs. Mr Retalic again appeared for the appellant, and Ms Hughes appeared for the Crown. Ms Hughes reiterated the Crown’s view that $150 should be allowed for the appeal costs in accordance with the convention that only a nominal sum is awarded in magistrates appeals to ensure that costs do not become prohibitive for prospective appellants.
Ms Hughes also raised a further issue in relation to the Magistrates Court trial as to whether the Magistrates Court Scale of Costs is inclusive of GST. Mr Retalic advised that his client had been charged the amount of $4,800 plus GST. He submitted that the appellant should be allowed to recover the GST in addition to the scale costs of the trial.
Should GST be included?
There is nothing in Schedule 1 of the Scale of Costs in the Magistrates Court criminal jurisdiction to indicate whether the costs are inclusive or exclusive of GST. Schedule 1 to the Supreme Court Civil Rules 2006 provides a scale of costs in the Supreme Court. There are notes attached to those rules in which the question of GST is canvassed. The relevant part of note M to the rules provides:
The costs allowed in the scale do not include the Goods and Services Tax (GST) which is to be added except in the following circumstances. GST should not be included in a claim for costs in a party party Schedule of costs if the receiving party is able to recover GST as an input tax credit. …
It seems to me logical that if the schedule to the Magistrates Court Criminal Scale of Costs does not provide any assistance as to whether the costs are inclusive or exclusive of GST, guidance can be taken from the Supreme Court Civil Rules, albeit in a different court and in a different jurisdiction. Magistrates appeals are dealt with in the civil jurisdiction of the Supreme Court. It is my view that Mr Trezise is entitled to his costs in the Magistrates Court plus GST.
Is $150 adequate for the appeal costs?
In relation to the costs of the appeal, Mr Retalic argued that as the appeal is heard in the civil jurisdiction of the Supreme Court, the normal rule, namely, that costs follow the event, should apply. It is on that basis that he makes the claim for costs in this Court.
He relied on a decision in the High Court to support his contention. The decision of Yanner v Eaton (1999) 168 ALR 1 is in point. This matter involved an application for costs following an appeal from a summary prosecution in the Magistrates Court in Queensland and subsequent appeals to the Supreme Court of Queensland, the Court of Appeal and finally the High Court. The question was whether the ultimately successful appellant, who had been prosecuted in the Magistrates Court summarily under the Fauna Conservation Act 1974 (Qld), should have his costs in both the Court of Appeal and in the High Court.
The seven members of the High Court held that the appellant, having succeeded in the High Court and having been entitled to succeed in the Court of Appeal, should have his costs in the High Court and in the Court of Appeal on the basis that costs should follow the event.
Section 214 of the Justices Act 1886 (Qld) provided that:
The court or judge may make such order as to costs as the court or judge deems just.
That is in very similar terms to the wide powers contained in s 40 of the Supreme Court Act (1935). I set out the relevant part of s 40:
40—Power of court with regard to costs
(1)Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
The judgment in the High Court refers in turn to the decision of Latoudis v Casey (1990) 170 CLR 534. The court in Yanner said, in referring to Latoudis:
It was held that, subject to some exceptions and qualifications that are not now relevant, if there is discretion to make such an order, that discretion would ordinarily be exercised in favour of a successful defendant. (The order made by this Court in Latoudis was that the police informant pay the costs of the summary prosecution in a Magistrates Court, of the subsequent proceedings, by way of order to review in the Supreme Court of Victoria and of the appeal from that decision to this Court.)
Exercise of discretion on costs
I am of the view that costs should follow the event in this matter and it therefore becomes a matter of discretion as to what amount of costs should be awarded. The convention referred to by Ms Agnew, and later by Ms Hughes, is just that, simply a convention, but it does have a basis. The basis is that an appellant in the position of Mr Trezise should not be deterred from taking an appeal further because of prohibitive costs. On the reverse side, if he had been unsuccessful in his appeal no doubt Mr Trezise would have been content to accept an order for costs against him, had it been sought, in the conventional sum of $150.
However, it does seem to me that the conventional amount of $150 is now somewhat outdated. It has been in operation for many years. In this matter in the Supreme Court the filing fee alone was $149. The transcript fee was $338. In addition, it seems appropriate that an allowance should be made for the costs of preparing the notice of appeal and supporting affidavit. In this matter that amounted to $440. It seems to me that at a very minimum all of those reasonable costs should be allowed. They amount to $927.
If costs in such a matter are to follow the event then should allowance also be made for counsel fees? Counsel fees were claimed in the sum of $2,000. I consider that a reasonable amount should also be allowed for counsel fees. In the circumstances, I would allow $500 for counsel fees.
Conclusion
There will therefore be an order that the respondent pay the appellant’s costs of the appeal fixed in the sum of $1,427, which is inclusive of disbursements.
In the Magistrates Court there will be an order that the appellant is entitled to costs in the sum of $4,800 plus any amounts upon which he has been charged for GST.
In the appeal the appellant is entitled to be reimbursed for any of the amounts allowed upon which he has been charged GST. In relation to the counsel fees on the appeal, he is entitled to recover GST on $500.