Baker v Magistrates Court of the Australian Capital Territory and Yates [2013] ACTSC 73

In my view the Court, having dismissed a summary criminal prosecution, does not have power to make an order that the informant pay the defendant's costs on an indemnity basis. Further, even if I am wrong in that conclusion, I would not, in the present case, have exercised my discretion to make an order on an indemnity basis.

4. The magistrate gave detailed reasons for these conclusions.

5. Mr Baker challenges the magistrate's decision, seeking a declaration and prerogative relief in the nature of certiorari or mandamus pursuant to s 34B of the Supreme Court Act 1933 (ACT) (the "Supreme Court Act"). He has joined both the Magistrates Court of the Australian Capital Territory (the "Magistrates Court") and the informant as defendants. The Magistrates Court has not appeared. Presumably, it will abide by the order of this Court. Proceedings of this kind may be brought in the original jurisdiction of the Court. Mr Baker applied, pursuant to s 13 of the Supreme Court Act, for an order that the Court's jurisdiction in the matter be exercised by the Full Court. The informant did not oppose that application. On 16 August 2012, Penfold J made an order to that effect.

6. The matter is primarily one of construction. However numerous legislative provisions, regulations and rules are involved.

7. As we understand it, there is no general statutory power, vested in the Magistrates Court, to award costs in criminal proceedings. However ss 85, 97 and 244 of the Magistrates Court Act 1930 (ACT) (the "Magistrates Court Act") confer such power in certain circumstances. It may be arguable that whilst ss 85 and 97 confer power to award costs, s 244 provides for the calculation of such costs. However this matter has been conducted on the basis that s 244 confers a power to award costs, and that Mr Baker's application for costs was made pursuant to that section. Section 244 provides:

(1) The power of the court to award costs is subject to the following:

(a) if the court makes a conviction or order in favour of the informant - it may order that the defendant must pay to the informant the informant's costs;

(b) if the court dismisses the information, or makes an order in favour of the defendant - it may order that the informant must pay to the defendant the defendant's costs;

(c) if a matter is adjourned - the court may order that the costs of and caused by the adjournment be paid by any party to any other party;

(d) costs ordered to be paid -

(i) must be awarded in the way prescribed by regulations; and

(ii) may be recovered under the rules about the enforcement of judgments of the court in civil proceedings.

(2) Subject to any order of the court, the expenses of a person who attended court to give evidence or to produce documents must be allowed to the person (whether or not they have been examined or produced documents and whether or not they were subpoenaed to attend).

8. Mr Baker submits that in the absence of any apparent intention to the contrary, any conferment of the power to award costs carries with it the power to award costs on an indemnity basis. The informant submits that at common law there was no power to award costs, apart from any power conferred by statute. On the other hand, courts of equity had a wide jurisdiction as to costs. See Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 183 (per Mason CJ and Deane J, Gaudron J concurring) and at 193-4 (per Dawson J). In effect the informant submits that apart from the specific provisions in the Magistrates Court Act to which we have referred, any power to award costs must be derived from s 7 of the Court Procedures Act 2004 (ACT) (the "Procedures Act"), together with Schedule 1 to that Act. The Schedule identifies the subject matter about which rules may be made. One such matter is costs. In the Court Procedures Rules 2006 (ACT) (the "Rules") provision is made for the award of costs in civil matters, but not criminal matters.

9. Although the informant relies to some extent upon the differing position as to costs at law and in equity, and the effect of the so-called fusion of law and equity, we need not address that quite interesting aspect of legal history and doctrine.

10. In our view, s 244 prescribes the way in which costs are to be assessed in criminal proceedings in the Magistrates Court, whatever the source of the power to award such costs. It provides that costs must be awarded in the way prescribed by regulation. Regulation 4 of the Magistrates Court Regulation 2009 (ACT) (the "Magistrates Court Regulation") provides:

Awarding costs in criminal matters - Act, s 244(1)(d)(i)

(1) In awarding costs, the court may order that the amount to be paid is the amount -

(a) decided by the court; or

(b) agreed by the parties.

(2) The amount to be paid must be worked out in accordance with the [Rules], schedule 4 (the scale of costs) as applied under subsection (3).

(3) In working out costs under subsection (2) in accordance with the scale of costs -

(a) a reference to the registrar is taken to be a reference to the court, or the parties, as the case may be; and

(b) the amount allowed under an item in Part 4.2 of the Scale of Costs is multiplied by 67%; and

(c) rule 4.12 (Costs - transitional) of the scale of costs does not apply.

11. Regulation 5 provides:

Costs in criminal matters - agreement by parties

(1) This section applies if the court orders, under section 4(1)(b), that the amount of costs to be paid is the amount agreed by the parties.

(2) If the party entitled to costs and the party liable for costs agree that the costs be set at a certain amount (the agreed amount), either party may file a written agreement to the costs being set at the agreed amount.

(3) The agreement must be signed by the parties or their solicitors.

(4) On the filing of the agreement, the agreed amount is taken to be the amount of costs to be paid.

(5) If the parties cannot agree on the amount, the court may order that the registrar assess costs in accordance with the Scale of Costs as applied under section 4(3)(b) and (c).

12. The references to sections and subsections are obviously references to the various paragraphs of reg 4.

PART 2.17 AND THE SCALE OF COSTS

13. Costs are generally dealt with in Part 2.17 of the Rules which relates to costs in civil proceedings. It contains numerous references to the "prescribed scale of costs". Rule 1700 provides that this term means the "scale of costs in schedule 4" (the "Scale of costs"). As we have observed, there is no provision in the Rules concerning costs in criminal proceedings. The informant points out, that previously, there were statutory and regulatory provisions concerning that matter, but they do not now appear in any relevant legislation, regulations or rules, other than in the specific provisions to which we have referred.

14. In Part 2.17, rule 1721 provides that costs are in the discretion of the court. The Part contains other provisions dealing with costs. In particular Division 2.17.3 deals with the award of costs on a party and party basis, a solicitor and client basis, an indemnity basis and "any other basis (the court) considers appropriate". However Part 2.17 is not picked up by s 244 of the Magistrates Court Act. That section picks up only the scale of costs.

15. Schedule 4, headed "Scale of costs" is comprised of two parts, Part 4.1, headed "Scale of costs - general" and Part 4.2, headed "Scale of costs - items". In Part 4.1 para 4.1 provides that:

In addition to an amount that is to be allowed under an item in Part 4.2, the amount that is to be allowed for a solicitor's care and conduct of a proceeding is the amount the registrar considers reasonable having regard to the circumstances of the proceeding ... .

(1) For a matter for which a cost is provided for in Part 4.2, the registrar may allow an additional amount, reduce the amount to be allowed, or change the method of calculating costs, as the registrar considers appropriate.

(2) For a matter for which a cost is not provided for in Part 4.2, the amount to be allowed is the cost the registrar considers reasonable.

(3) If the nature and importance, or the difficulty or urgency, of a proceeding and the justice of the case justify it, the registrar may allow an increase of not more than 30% of the solicitor's costs allowed on the assessment of the costs of the proceeding.

17. Part 4.2 identifies item charges for steps commonly taken in litigation, grouped under the headings "Instructions", "Drawing", "Engrossing", "Copies", "Perusal", "Attendances", "Letters", "Witness expenses" and "Disbursements". For example, under the heading "Instructions", the first item is "to sue or defend, to appeal or oppose an appeal". An amount or "charge" is attributed to each item.

18. In general, where the word "registrar" is used in the Rules, it denotes either the Registrar of the Supreme Court or the Registrar of the Magistrates Court, whichever is appropriate. See r 5 of the Rules. However reg 4(3) of the Magistrates Court Regulation provides that in working out costs under reg 4(2), the reference in the rules to the "registrar" means the "court, or the parties, as the case may be". The reference to the "court" is to the Magistrates Court. Where the Court orders a party to pay the amount of costs to be agreed by the parties, and no agreement is reached, reg 5(5) of the Magistrates Court Regulation authorizes the Court to order the Registrar to assess costs.

19. The assessment by the Court contemplated in reg 4 of the Magistrates Court Regulation is to be in accordance with the Scale of Costs, subject only to reg 4(3). The reference to the Scale of costs is clearly to the whole of Schedule 4. Apart from providing that a reference to the registrar is to be treated as a reference to the court or the parties, reg 4(3) limits the application of the Scale of Costs in two ways - by allowing only 67 percent of items in the Scale of Costs and by excluding the operation of rule 4.12, which rule is not presently relevant.

20. The assessment by the Registrar contemplated in reg 5 of the Magistrates Court Regulations is to be performed "in accordance with the scale of costs as applied under section 4(b) and (c)". In other words the Registrar is to perform the function which the Court would otherwise have performed pursuant to regs 4(2) and 4(3).

21. In summary, reg 4 seems to contemplate that the Court will assess costs at the time of determining the entitlement to an order for such costs. Regulation 5 contemplates assessment by the Registrar where there has been an order to pay costs as agreed and a subsequent failure to agree.

22. In the present case the magistrate ordered as follows:

Subject to order 2, the informant pay the defendant's costs of the proceedings in an amount agreed by the parties pursuant to s 4(1)(b) of the Magistrates Court Regulation 2009 or, in default of the filing of an agreement under s 5 of that regulation within 14 days of the date of this order, in an amount assessed by the registrar in accordance with the scale of costs as applied under s 4.3(b) and (c) of the Regulations.

24. Mr Baker submits that where costs are awarded pursuant to s 244, the Scale of Costs may be applied in a way which permits the award of costs on an indemnity basis, and that the discretions conferred by Part 4.1 provides an appropriate basis for so doing.

25. It may be that the discretions conferred by paras 4.1, 4.2 and other paragraphs of Part 4.1 provide flexibility in calculating costs, which flexibility may be sufficient to permit an award of an amount in excess of that which would be allowed on a party and party basis. However use of the terms "party and party", "solicitor and client" and "indemnity" are simply irrelevant in considering the calculation of costs as prescribed by s 244 and regs 4 and 5. The costs are to be calculated by reference to the scale of costs. That process may involve the exercise of one or more of the discretions conferred by Part 4.1, as well as the identification of item charges pursuant to Part 4.2. However we are not presently concerned with the process of calculation or the exercise of any such discretions. We are concerned only with the magistrate's order.

26. In our view, the magistrate was correct in ordering that costs be assessed in accordance with the scale of costs as applied under regs 4(3)(b) and (c). That order applied the item charges contained in Part 4 and enlivened the discretions conferred by Part 4.1. The actual calculation of costs, pursuant to that order, is a matter for the Registrar.

27. The magistrate also indicated that, in any event, he would have exercised any discretion to award costs on an indemnity basis by declining to do so. We see no appellable error in his Honour's reasons for forming that view. However it is not necessary that we consider the question.

I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justice Burns and Justice Dowsett.

IN THE SUPREME COURT OF THE ) No. SC 207 of 2012

AND: MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. I agree with the conclusion of their Honours Burns and Dowsett JJ and with the orders they propose.
2. I wish to say for myself that, assuming (as the parties and the magistrate did) that

s 244 of the Magistrates Court Act 1930 (ACT) provides a power to award costs, rather than provides the method for the calculation of the costs once awarded, reg 4 of the Magistrates Court Regulation 2009 (ACT) provides the method and the scale for the calculation of those costs:

1. The first step is that the parties are to attempt to agree as to the amount of the costs (reg 4(1)(b) and reg 5(1)-(4)). 2. The second step is that, if the parties cannot agree on the amount of the costs, the Court is to order that the Registrar assess the costs (reg 5(5)).

1. The last step is that, whether the amount of the costs is agreed by the parties or is assessed by the Registrar, the amount of the costs is to be calculated in accordance with the scale of costs provided for by reg 4(3)(b) and (c) (reg 4(2)).

I certify that the preceding two (2) paragraphs, numbered twenty-nine and thirty (29-30), are a true copy of the Reasons for Judgment herein of his Honour Acting Justice Nield.

Solicitor for the Plaintiff: Ben Aulich & Associates

Counsel for the First Defendant: The first defendant did not appear

Solicitor for the Second Defendant: Australian Government Solicitor