WATSON v Police - [2016] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WATSON v POLICE
[2016] SASC 123
Judgment of The Honourable Justice Doyle
9 August 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
At the pre-trial conference, the prosecutor elected to withdraw the original Complaint and rely upon a fresh Complaint. The appellant’s counsel sought an order that the prosecution pay her costs of the original Complaint. The Magistrate refused the application. The appellant appealed against the Magistrate’s refusal to make a costs order on a number of grounds.
Held (per Doyle J), dismissing the appeal:
1. No error in the exercise of the Magistrate’s discretion has been established.
Road Traffic Act 1961 (SA) s 45; Summary Procedure Act 1921 (SA) s 189; Magistrate Court Rules 1992 (Criminal) (SA) r 51, referred to.
Konieczka v Police [2006] SASC 288; Schloithe v Police [2011] SASC 156; Graham v Police [2016] SASC 82; Latoudis v Casey (1990) 170 CLR 534; Hutchinson v Police (2012) 113 SASR 460; House v The King (1936) 55 CLR 499, considered.

WATSON v POLICE
[2016] SASC 123
Magistrates Appeal.
DOYLE J:

This is an appeal from a refusal by a Magistrate to make a costs order in favour of the appellant upon a Complaint laid against her being withdrawn.
Background
The appellant was charged, by Complaint dated 9 November 2015, with failing to keep a sufficient distance behind another vehicle that was travelling in front of her, contrary to r 126 of the Australian Road Rules. The appellant elected to be prosecuted, and the matter was set down for a pre-trial conference on 6 April 2016. The charge related to the circumstances of a collision that had occurred on 30 April 2015, when the appellant’s vehicle drove into the rear end of another vehicle.
At the pre-trial conference on 6 April 2016, counsel for the appellant indicated his client’s preparedness to have the charge on the original Complaint listed for trial. However, the prosecutor elected to withdraw the original Complaint and rely upon a fresh Complaint, charging the appellant with the more serious charge of driving without due care, contrary to s 45 of the Road Traffic Act 1961 (SA). The prosecutor informed the Magistrate that the fresh charge was based on allegations of “the same pith and substance”, and could be listed for trial.
The Magistrate inquired of counsel for the appellant whether “any issues would be raised at that stage”. In the absence of any issue being raised by the appellant, the Magistrate gave permission for the Complaint to be withdrawn,[1] and listed the charge in the second Complaint for trial on 19 May 2016.
[1] The endorsement on the file is in terms that the original Complaint was withdrawn, whereas the Magistrate’s reasons in relation to costs refer to the Complaint being dismissed. In the circumstances of this case, nothing turns on this distinction.
The appellant’s counsel then sought an order from the Magistrate that the prosecution pay her costs of the original Complaint.
The Magistrate refused the application for costs. In his reasons on the costs application, the Magistrate outlined the procedural background I have summarised above. After referring to confirmation from the prosecution that the fresh Complaint was based on the same allegations as the charge in the original Complaint, his Honour said:
For the purposes of housekeeping I have acceded to Prosecutions’ application to dismiss the Complaint in the first file as it will not be appropriate to have both matters still proceed.
The Magistrate referred to his inquiry of counsel for the appellant as to whether any issue would be raised at that stage, and the fact that no issue was raised. His Honour reasoned:
Mr McDonough’s submissions are that costs should follow the event and by having dismissed that Complaint in the first file it could also be deemed that the defendant is not guilty of the offence or has succeeded as against the Prosecutions with that Complaint in the first file.
With respect I do not agree with that proposition of counsel. Dismissal of a complaint is neither a finding of guilt nor a finding of not guilty.
And in the circumstances I do not deem it appropriate that costs should follow such an event.
I do not also on the same token find that there has been any undue delay or injustice occasioned by Prosecutions in these proceedings by filing the fresh Complaint because it was in any event for a pre-trial conference today and the parties are ready to proceed to trial forthwith even on the new Complaint, having already had discovery and relying on the same background circumstances as the charge in the first file.
In the circumstances I am not awarding costs to the Defendant as regards the first file.
The Appeal
In developing his challenge to the Magistrate’s refusal to order costs in his client’s favour, counsel for the appellant referred to the decision to withdraw the Complaint as being a unilateral decision by the prosecutor in respect of which there was no occasion for the Magistrate to inquire of the appellant whether she took any issue at that stage. He further argued that the filing of the fresh Complaint was immaterial so far as the subject proceedings were concerned.
While acknowledging that the Magistrate had a general discretion in relation to costs under s 189 of the Summary Procedure Act 1921 (SA), the appellant’s counsel referred to r 51 of the Magistrate Court Rules 1992 (Criminal) (SA). It provides that subject to any Rule, Act or order of the Court to the contrary, a successful party to an action is entitled to costs against the unsuccessful party to that action. He noted that under r 51.02, a successful defendant includes a defendant in proceedings where a complaint is withdrawn.
In addition to this more general challenge to the Magistrate’s refusal to make a costs order, the appellant contended that the Magistrate erred:
1.   by equating the filing of a fresh Complaint with the amendment of a charge on an existing Complaint;
2.   by making reference to the charge and the fresh Complaint as relying on allegations “of the same pith and substance” as the original Complaint;
3.   by inference, in asserting a finding of not guilty is necessary before a successful defendant is entitled to an award of costs; and
4.   in treating “undue delay or injustice occasioned by the Prosecution” in proceeding on a separate Complaint as a relevant consideration in determining the successful defendant’s entitlement to costs.
Consideration
The starting point is that s 189 of the Summary Procedure Act conferred upon the Magistrate a general and unfettered discretion in relation to costs,[2] both as to liability and amount.
[2] Subject to the operation of ss 189A-189D, none of which is applicable in the present case.
In exercising this discretion it was appropriate that the Magistrate have regard to r 51. It 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.
51.02Subject to any order of the Court to the contrary, the scale of costs set out in the first schedule shall apply.
Rule 51 does not operate to fetter or qualify the Magistrate’s discretion under s 189.[3] However, that discretion must be exercised judicially and in accordance with settled principles regarding an award of costs. These principles include the principle that ordinarily, or in the usual course, a successful party is entitled to an award of costs in his or her favour.[4]
[3] Konieczka v Police [2006] SASC 288; Schloithe v Police [2011] SASC 156 at [11]; Graham v Police [2016] SASC 82 at [7]-[8].
[4] Latoudis v Casey (1990) 170 CLR 534; Schloithe v Police [2011] SASC 156 at [12]; Hutchinson v Police (2012) 113 SASR 460 at [19].
That said, in the exercise of his or her general discretion a Magistrate may, when appropriate,[5] or if good reasons exists,[6] depart from this usual course and deprive a successful defendant of some part of their costs, or make no order as to costs.
[5] Schloithe v Police [2011] SASC 156 at [12].
[6] Hutchinson v Police (2012) 113 SASR 460 at [20].
In taking that course here, the Magistrate relied upon the fact that the charge was withdrawn in circumstances where it was to be replaced by a charge based on the same allegations, and in circumstances where there would be no delay or inconvenience in the sense that the matter could and would still proceed to a trial at the same date it would have done on the original charge. The issue on this appeal is whether the Magistrate erred in these circumstances in declining to award costs in the appellant’s favour.
In determining the outcome of this appeal, it is of course not sufficient for me to conclude that I would have exercised the discretion as to costs differently. As the decision under appeal involved the exercise of a discretion, the appellant must identify error in the sense required by House v The King.[7]
[7] House v The King (1936) 55 CLR 499 at 504-505.
In my view, no House v The King type error has been established in the Magistrate’s reasons or decision. I consider that the combination of circumstances relied upon by the Magistrate made it an appropriate exercise of his discretion not to award costs in favour of the appellant, or at least not an exercise of the discretion that was plainly unjust or unreasonable in the sense required by House v The King. While the appellant was, strictly speaking (and in accordance with r 51.02), the successful party in the proceedings based on the original Complaint, in my view the Magistrate was entitled to have regard to the substance, or practical reality, of what occurred, as opposed to the technical or procedural form of what occurred. The Magistrate was entitled in the circumstances to regard what occurred as, to use his Honour’s words, “housekeeping”.
While the procedural form undoubtedly differed from an amendment of a Complaint, the practical reality was not substantially different. It was relevant that the new charge was to proceed on the basis of the same allegations, and in circumstances where there was no material interruption to, or delay in, the progress of the matter to trial on account of the change in the prosecution position. The matter was able to be listed forthwith for trial on the new charge. The Magistrate was entitled, in other words, to proceed on the basis that relevant pre-trial matters (such as discovery) had been attended to; that there were not likely to have been any significant costs thrown away on account of the change in the prosecution position; and that the costs which had been incurred were costs which would have been incurred in any event in respect of the proceedings based on the fresh Complaint.
While I received some affidavit material on the appeal that suggests that there may have been some material costs thrown away by reason of the prosecution’s change in approach, I received this material on the basis that it would only be relevant should the occasion arise for me to re-exercise the discretion as to costs. This information was not before the Magistrate, and hence in my view the Magistrate was entitled to proceed on the basis that there were unlikely to have been any significant costs thrown away. His Honour was entitled to do so in the absence of any issue being taken with the course proposed by the prosecution, or any other indication that these costs were likely to be significant.
The Magistrate was also entitled to assume that if the appellant ultimately succeeded in defending the charge on the fresh Complaint, then she would be entitled to recover her costs, including inter alia the scale amount in relation to work undertaken prior to the pre-trial conference and for the pre-trial conference itself.
In light of the above circumstances and considerations, I do not consider that the Magistrate’s refusal to order costs was plainly unjust or unreasonable.
I turn to the four more specific errors relied upon by the appellant.
As to the first, the Magistrate did not overlook that the procedure adopted by the prosecution involved laying a fresh Complaint, rather than an amended Complaint. To the contrary, the Magistrate made express reference to the different files and action numbers of the two Complaints and sets of proceedings. While not saying so in as many words, the Magistrate did, however, rely upon the practical reality or substance of what occurred not differing substantially from an amendment, and hence not warranting any order to address any costs thrown away by reason of the change in the prosecution position. In my view, that did not involve any error on the part of the Magistrate. It was a relevant consideration, and in my view a permissible exercise of his discretion as to costs, on the facts as presented to the Magistrate.
As to the second, again I consider it was a relevant consideration. It is true that the fresh Complaint involved separate proceedings, but I consider the Magistrate was entitled to have regard to the obvious connection between the two. If the fresh proceedings had been based on entirely new or different allegations, then there would unlikely have been any reason to decline to make an order for costs in the appellant’s favour. There would have been no reason to depart from an approach that treated the appellant as the successful party in both form and substance. Put another way, the likelihood of there being material or significant costs thrown away would likely stand in the way of the appropriateness of the pragmatic approach taken in this case. There would have been separate proceedings both as a matter of form and substance.
As to the third, similar reasoning applies. While the defendant was, as a matter of form and in accordance with the rules, the successful party, and might in the ordinary course have expected an award of costs, the accuracy of that label does not require a favourable exercise of the discretion. If, as I have held, the Magistrate was entitled to have regard to the practical effect of what occurred at the pre-trial conference on 6 April 2016, then there were appropriate grounds, or good reasons, to deprive the appellant of an order for costs.
Finally, I consider that it was relevant to take into account that the fresh Complaint did not result in any undue delay or injustice being occasioned by the prosecution. The Magistrate did not suggest that a finding of delay or injustice occasioned by the prosecution was required before the appellant would have been entitled to an award of costs. To have gone that far would have involved falling into error. Rather, the relevance of the absence of undue delay or injustice occasioned by the prosecution was in assessing the practical effect or substance of the procedure adopted by the prosecution. In other words, if the laying of the fresh Complaint had been such as to result in a delay or some other injustice, then it would not have been appropriate to approach the matter on the basis that the laying of the fresh Complaint was unlikely to have any practical or substantive effect upon the way in which the matter proceeded. Had it been suggested that there was some delay or some other significance associated with the change in the prosecution position, it might have been necessary in the proper exercise of the costs discretion to make some allowance for the costs impact of the change in the prosecution position. But on the information available to the Magistrate, I consider it was within his discretion to proceed as he did.
In summary, for the reasons I have given, I do not consider that the appellant has established error, in the sense required by House v The King, on the part of the Magistrate.
I dismiss the appeal.