Van Gils v Police - [2008] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN GILS v POLICE
[2008] SASC 270
Judgment of The Honourable Justice David
15 October 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT - DISCRETION OF COURT
Appellant charged with assault - possibility of "battered women's syndrome" defence - prosecution called no evidence at trial - magistrate dismissed charge and awarded costs to appellant according to First Schedule of the Magistrates Court Rules 1992 (SA) - whether magistrate erred in applying First Schedule and in considering bases for awarding costs.
Held: Appeal allowed - magistrate erred in applying First Schedule of Magistrates Court Rules 1992 (SA) - discretion exercised afresh - appellant awarded costs in sum of $4,000.
Summary Procedure Act 1921 (SA) s 189(1); Magistrates Court Rules 1992 (SA) r 51, referred to.
Konieczka v Police (2006) 245 LSJS 458; Curnow v Police (2008) 100 SASR 290, applied.

VAN GILS v POLICE
[2008] SASC 270
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against an order for costs granted by a magistrate in favour of the appellant in the sum of $2,050 due to the dismissal of a charge laid against the appellant. The charge was dismissed as a result of the non‑attendance of the complainant at the appellant’s trial. The appellant now argues the amount awarded was inadequate in light of the special complexities of the case.
Background Facts
I set out the history leading up to the order, which is appealed against.
On 13 November 2006, a Complaint was laid against the appellant, alleging that on 29 October 2006 at Burra she intentionally applied force directly to another person, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). On 14 November 2007, the appellant appeared at the Peterborough Court and, through her solicitors, intimated a plea of guilty. The matter was adjourned to 10 December 2007, when a plea was entered and a psychological report was ordered. Because of the contents of the report, her plea of guilty was subsequently struck out on 7 April 2008 and the matter was listed for trial at Peterborough during the week commencing 26 May 2008. On that morning, there was a callover of the list of trials to be heard during that week. There had been a problem with the complainant, and he was alleged to have been admitted to Glenside Hospital with a mental illness. The prosecutor told the court he had information the complainant had been released from Glenside on 23 May 2008 and on that day had been provided with a bus ticket to return home to Burra. Arrangements had been put in place for him to be collected from his residence by the police at Burra, and transported to Peterborough for the trial once the time was fixed. Shortly after 10.00 am on 26 May 2008, the trial was set for 11.30 am. At 11.30 am, the prosecutor informed the court he had had been unable to locate the complainant. He then sought and was granted leave to withdraw the Complaint.
The appellant’s counsel at trial subsequently made an application for an order for costs. He sought an order in the sum of $10,811 on an indemnity basis, as distinct from an order on a party/party basis according to the First Schedule of the Magistrates Court Rules 1992 (SA) (“the First Schedule”). The magistrate purported to order costs according to the First Schedule in the sum of $2,050.
Appeal
The respondent now concedes that the amount awarded by the magistrate was incorrect insofar as it purported to order costs according to the First Schedule. Due to an amendment to the First Schedule by Government Gazette dated 17 April 2008,[1] the items for which the magistrate had ordered costs amounted to a cumulative total of $3,300, rather than the lesser total of $2,050.
[1] Government Gazette (SA) (17 April 2008) p 1,328.
On this appeal, it is agreed between the parties that the magistrate erred in applying the wrong scale. It is also agreed that, despite r 51 of the Magistrates Court Rules, pursuant to s 189(1) of the Summary Procedure Act 1921 (SA), the magistrate was invested with a wide discretion in relation to the award of costs, and if he saw fit after considering all of the relevant circumstances, could have departed from the scale of costs fixed by the First Schedule.
Section 189(1) of the Summary Procedure Act provides:
(1)Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.
Rule 51 of the Magistrates Court Rules 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.
In Konieczka v Police, Perry J, with whom Nyland and Sulan JJ agreed, stated:[2]
There is no doubt that in a proper case the jurisdiction as to costs extends to the making of a costs order on the basis of an indemnity or the award of solicitor and own client costs. It is also open to the court to award something between First Schedule costs and an indemnity. The discretion as to costs is at large, although it must not be exercised arbitrarily. Relevant factors must always be taken into account.
…
the amount to be allowed was entirely a matter for the exercise of discretion. The discretion should not be circumscribed by any attempt to lay down any rigid rules or principles. Justification for departure from the scale may arise from a large variety of circumstances, including the complexity of the case, the seriousness of the charge, whether it was reasonable to brief senior counsel, the conduct of the prosecution or of witnesses for the prosecution, and other matters. Likewise, the amount allowed will be influenced by similar factors.
[2] (2006) 245 LSJS 458, 460, 462; [2006] SASC 288 [22], [41].
In Curnow v Police,[3] when looking more closely at whether r 51 of the Magistrates Court Rules limited the scope of a magistrate’s discretion to award an amount of party/party costs higher than provided by the First Schedule but lower than indemnity, Debelle J said:[4]
The expression “subject to any order of the court to the contrary” which introduces Rule 51.03 is a familiar formula not infrequently used in relation to orders as to costs. It does not establish a presumption that must be displaced but instead leaves the discretion as to costs at large. … It does no more than require the magistrate to consider all relevant circumstances and decide whether costs should be assessed on some basis other than that provided by the First Schedule. The relevant circumstances will include such matters as whether the proceedings were complex, the nature of the issues, the length of the hearing and the conduct of the parties. In short, the magistrate will have regard to all factors relevant to the determination of an appropriate order as to costs.
…
A magistrate is at liberty to order that the costs be assessed on some basis other than the First Schedule so that the discretion invested in the Magistrates Court by s 189(1) remains at large and the Full Court so decided in Konieczka. If a magistrate believes that the award of costs on the basis of the First Schedule is inadequate, he or she is at liberty to order that the costs be assessed on some other basis.
…
An order that costs be paid as an indemnity will be made only if there be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Some examples of such special features are evidence of particular misconduct that causes loss of time to the court and to the other party; the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; and the prolongation of a case by groundless contentions. It must always be remembered that the categories in which the discretion as to costs may be exercised are not closed. In my view, these are the considerations to which Perry J was referring when he said exceptional circumstances were required for an order that costs be paid on an indemnity basis.
(Citations omitted.)
[3] (2008) 100 SASR 290.
[4] (2008) 100 SASR 290, 295, 297, 298‑299; [2008] SASC 84 [16], [22], [25].
Mr Kerin, counsel for the appellant on appeal, argues that the magistrate exercised his discretion as to costs on the basis that there were only two strict alternatives, either costs on a full indemnity basis, or costs on a party/party basis according to the First Schedule. Ms Willows, counsel for the respondent on appeal, argues that the magistrate considered his discretion more broadly. Although starting with the two contrasting positions, the magistrate set out the broad discretion before considering the factors relevant to both departing from the scale of costs fixed by the First Schedule and awarding indemnity costs.[5]
[5] Reasons for Decision, Police v Miriam Christina Van Gils (Unreported, Magistrates Court of South Australia, Magistrate Ward, 29 May 2008) [8]-[14].
In any event, as the magistrate applied the wrong scale, I allow the appeal and turn to exercise the discretion afresh.
The Amount of Costs
When the appellant originally pleaded guilty and a psychological report was obtained, that report was found to contain a suggestion that the appellant’s reaction in committing the offence was “not dissimilar to that witnessed in women suffering from battered women’s syndrome where women experience a psychological reaction to continual physical and/or psychological/emotional abuse inflicted by a partner”.[6] As indicated above, that suggestion resulted in a change of plea. The appellant’s solicitor then comprehensively and studiously investigated the defence known as “battered women’s syndrome”.[7] Those investigations included extensive conversations with two well-known South Australian Queen’s Counsel, extensive conversations with counsel who are considered expert in this defence from Melbourne, and also counsel from Sydney and the United States. There were also extensive negotiations with the prosecution in regard to the potential defence. Mr Kerin argues that such investigations and the unusual nature of the defence required a greater award of costs than was given.
[6] Report of Dr M J Taylor, registered psychologist, 17 March 2008.
[7] Affidavit of S Neagle, 23 July 2008.
It is to be noted that the appellant’s solicitor had not reached the stage whereby he had retained witnesses or, indeed, interviewed witnesses in relation to the presentation of the defence. The admirable work carried out by the solicitor involved informing himself of the law and of the experiences of those familiar with this special defence. As stated earlier, the charge was ultimately dismissed because the complainant did not attend trial and no evidence was called.
In all of those circumstances, like the magistrate, I am of the view that an award of costs on the full indemnity basis is not warranted. However, in my view, considering that the defence of “battered women’s syndrome” in the context of an assault charge is somewhat novel, and in that regard potentially complex, an award of costs slightly higher than the scale fixed by the First Schedule is warranted. I award party/party costs to the appellant in the sum of $4,000.
Conclusion
I allow the appeal. I set aside the magistrate’s award of costs of $2,050 and substitute an amount of $4,000.