WORTH v POLICE No. SCGRG-98-504 Judgment No. S6674

[1998] SASC 6674

WORTH V SA POLICE

Magistrates Appeal

LANDER J

This is an appeal from a costs order made by a Magistrate. 

The appellant was charged on complaint with three counts of common assault contrary to s.39 of the Criminal Law Consolidation Act and one count of criminal trespass.   He first appeared in the Magistrates Court on 8 August 1997.  On that occasion, he was remanded until 10 September 1997 and given bail in his own recognisance of $500. 

On 10 September 1997, the appellant failed to appear, but he was represented by counsel, Mr Carson.  Mr Carson informed the Court that his office had given the appellant the incorrect time and it was for that reason the appellant did not appear.  Mr Carson told the Court that the appellant would plead guilty to the matters with which he was charged. 

The matter was further remanded to 9 October 1997.  On that day, Mr Carson again appeared for the appellant, but, again, the appellant failed to appear.  His bail was forfeited and a warrant was issued for his apprehension.  However, the Court ordered that the warrant lie in the Court until the date of the further remand on 6 November 1997.  Again, it was intimated to the Court that there would be a plea in respect of the matters charged. 

On 6 November 1997, Mr Carson appeared, but the appellant again failed to appear.  The matter was further remanded until 27 November 1997 with the warrant for apprehension, which had previously issued, ordered to lie in the Court until that further remand. 

The same occurred on 27 November 1997 when Mr Carson appeared but the appellant did not.  The matter was further remanded until 1 December 1997.  Mr Carson indicated that his client would plead guilty at that time to the matters with which he was charged.  The order was that, in the event that the appellant did not attend on 1 December 1997, the warrant would be executed. 

On 1 December 1997, the appellant appeared.  He was also represented by counsel.  The warrant was recalled and the matter was further remanded until 20 January 1998 for a trial date to be set.  He was allowed bail. 

On both 20 January 1998 and 3 February 1998, the appellant appeared and was represented by Mr Hyde.  On that first occasion, the Court was advised that the parties were negotiating in relation to the charges.  On the second occasion, the prosecutor, Sergeant Wojtasik, advised the Court that he wished to make enquiries of the alleged victims.  The appellant was excused from attending on the date of the further remand on 12 February 1998. 

It appears clear that, between 3 February 1998 and 12 February 1998, Mr Hyde, on behalf of the appellant, and Mr Wojtasik, on behalf of the respondent, conferred in relation to these matters. 

On 12 February 1998, Mr Hyde again appeared on behalf of the appellant when the matter was remanded for a further seven days to 19 February 1998.  On the afternoon of that earlier day, Mr Wojtasik reconsidered the complaint.  He had, at that stage, been advised by the victims that they no longer wished to proceed with the charges.  He formed the view that all charges should be withdrawn and he made a note on the police brief for the prosecutor who was to appear on 19 February to advise the Court accordingly. 

On 19 February 1998, the appellant appeared with his counsel, Mr Hyde.  The respondent applied to withdraw the complaint and the Court allowed the withdrawal without objection by the appellant's counsel. 

Immediately after the complaint was withdrawn, Mr Hyde made an application for costs, which was opposed by the then prosecutor, Mr Harper. 

During submissions to the learned Magistrate, the prosecutor informed him that there had been an agreement that the appellant would plead guilty to the charge of being unlawfully on premises.  That was disputed by Mr Hyde.  Mr Hyde then made some further submissions to the Court in relation to costs. 

I am informed by counsel who appeared on this appeal, Ms McDonald, that no particular figure was claimed by way of costs before the learned Magistrate. 

After hearing submissions, and without giving reasons, the Magistrate made an order that the respondent pay the appellant's costs, which he fixed at $50, within three months of the date of the order.  It is from the order for the quantum of costs that the appellant now appeals. 

This appeal was not lodged until 30 March 1998 and is, therefore, out of time.  The appeal ought to have been brought within 14 days of the learned Magistrate's order. 

In the notice of appeal, the appellant seeks an extension of time within which to institute the appeal.  In support of that application in the notice of appeal, the appellant pleads:

“The award of costs in favour of the appellant was made on 19th day of February 1998.  On or about the 26th day of February 1998, counsel's account in the amount of $1,000 was rendered to the appellant.  The appellant has required time to take legal advice relating to this appeal and the prospects of success thereof and accordingly the appellant has required time to consider whether or not to institute this appeal.”

As I have said, the appeal is only against the quantum of costs ordered by the learned Magistrate. 

Appeals of this kind are not encouraged and, of course, they are less likely to be encouraged when the appeal is brought out of time. 

Section189 of the Summary Procedure Act provides that:

“The court may award such costs for or against a party to proceedings as the court thinks fit.” 

The matter of costs, and, in particular, the quantum of costs, are both very much an exercise of discretion, and the 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.

Section 189 provides that costs in the criminal jurisdiction do not follow the event as they do in the civil jurisdiction.  However, generally, the successful party in criminal proceedings in the Magistrates Court, subject to the exceptions mentioned in s.189(2), would be entitled to costs, unless, by his or her conduct, the party has brought the proceedings, or the continuation of the proceedings, upon the party, or unless there is some other reason which would make it unjust to award that party costs: Schaftenaar v Samuels (1975) 11 SASR 266, Latoudis v Casey (1990) 170 CLR 534.

In this appeal, the respondent does contend that the proceedings were protracted as a consequence of the appellant's actions.  Further, it is submitted that excessive expense was incurred by the respondent in the conduct of the proceedings as a direct consequence of the appellant's actions. 

The respondent, therefore, argues that having regard to the discretion vested in the learned Magistrate, the order was not so unjust or so unreasonable, or did not involve a substantial injustice, so as to warrant interference by this Court: Norton v Morphett (1995) 83 A Crim R 90.

In particular, in support of the respondent's claim, the respondent points to the fact that, on the second, third, fourth and fifth occasions that the matter came before the Court, the appellant failed to comply with the conditions of the appellant's bail. 

In those circumstances, the respondent argues that it was put to cost and expense by reason of the necessity for the further remands. 

However, Ms McDonald pointed out that the appellant made no claim for costs in relation to any of those occasions.  The appellant's claim for costs was limited to the five occasions between 1 December 1997 and 19 February 1998 when the appellant was represented by counsel, Mr Hyde.  She argued that, on those five occasions, the appellant either attended or was excused from attendance by the Court. 

She further argued that the appellant could have expected an order for costs in his favour, which he obtained, and could have, having regard to all of those circumstances, expected an order for costs in the order of the amount of counsel fees which were charged to the appellant subsequent to the final hearing before the Magistrate.  She said it would have been appropriate for the learned Magistrate to have awarded costs in the order of $1,000. 

On this appeal, she said that, in fact, the appellant's costs were greater than that.  Not only did he incur counsel fees of $1,000, but he also incurred solicitor's fees of $400 in connection with those five attendances.   She made no application in relation to any costs associated with the attendances when the appellant did not appear. 

In answer to that last submission, Mr Hinton, who appeared for the respondent, argued that the appellant had not identified a figure before the learned Magistrate for the appellant's costs, but had certainly not sought solicitor's costs of $400.  In those circumstances, the appellant should be limited, at the very best, to a figure of $1,000. 

The Magistrate gave no reasons for allowing what can only be termed a 'nominal sum' by way of costs, and a sum which, on any account, could not have indemnified the appellant against the costs which the appellant had incurred.  Because of the absence of reasons, I am unable to discern why it was that the Magistrate allowed such a small sum.  In my opinion, the very paucity of the sum identifies error on the part of the learned Magistrate.  It is not possible to say where the Magistrate fell into error, but, in my opinion, the order itself for a sum of $50 itself discloses error.  In those circumstances, it falls to me to exercise my discretion in relation to costs. 

I agree with Mr Hinton that it would be appropriate for me to assess an appropriate order for costs having regard to the claim for counsel fees that was made to the learned Magistrate for two reasons: First, that was the amount which was sought from the learned Magistrate; secondly, there is no evidence, apart from what was stated from the bar table, of any other costs, apart from Mr Hyde's costs. 

I am sure there are other costs, and, of course, I would accept anything Ms McDonald said about that, but the solicitors have not brought forward any information in relation to those other costs. 

I will, therefore, deal with the application upon the basis that the appellant claims costs, being counsel fees, of $1,000 in respect of five attendances between 1 December 1997 and 19 February 1998. 

There is no reason to think that during that period the appellant conducted himself in such a way as to incur any costs which were not reasonable.  Indeed, it is conceded by the parties that in that period the parties were negotiating.  It was therefore appropriate that the appellant would seek the advice of counsel and retain counsel on each of the remand dates so that the appellant could be properly advised in relation to the negotiations.   I am therefore not persuaded that the appellant was guilty of any delay or protraction by consequence of any action on the part of the appellant.  However, it is clear that prior to 1 December 1997 the appellant did, by his own failure to appear on four occasions, delay and protract these proceedings. 

It is also clear that during that time the appellant indicated, through his solicitor, that the appellant would be pleading to these matters and that, therefore, one could conclude that those advices would also protract these matters. 

I think it would be appropriate to set-off against the costs claimed by the appellant a sum for the costs which would have been caused to the respondent by reason of the protraction and delay in the proceedings.  I have no evidence as to what that amount would be, but I think I can form some view of a figure which would be appropriate in the circumstances. 

I think that I ought to set-off the sum of $350 against the amount claimed for costs and that under those circumstances it would be appropriate that the appellant have costs before the learned Magistrate of $650. 

In my opinion, for the reasons I have given, it is appropriate for me to exercise my discretion in relation to costs, and for the reasons which I have given I exercise my discretion in favour of the appellant by ordering that the respondent pay the appellant's costs fixed at $650.  It follows that the appeal must be allowed for that purpose.  I order that the respondent pay the appellant's cost of appeal fixed at $150.

The order will be that the order for costs in the Magistrates Court and the order for costs which I made on appeal will be paid within a month.