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[2016] WASC 120
General information, not legal advice.
Supreme Court of WA
2016-04-22
Fiannaca J
Original judgment source is linked above.
1 In 2014 the appellant received a parking infringement notice because his car was parked without displaying a parking ticket in an area where a ticket was required. The notice required him to pay a penalty of $60. He declined to pay. As a result, the relevant local government authority (the respondent) charged him with the parking offence, and he was summonsed to attend court. He was charged because he was the owner of the vehicle and, under the relevant local law, was deemed to have committed the offence unless he proved the contrary. He fought the charge at a hearing in the Magistrates Court, challenging the constitutional validity of the deeming provision of the local law, and arguing the evidence did not prove he had parked the vehicle. He did not give evidence. He was found guilty on the basis of the deeming provision. He was fined $60, the penalty he could have paid in satisfaction of the infringement notice. However, the respondent had incurred substantial legal costs in prosecuting the appellant. The magistrate ordered the appellant to pay those costs in the sum of $1,478.70.
2 This appeal is against the costs order. Two questions arise on the appeal. The first is whether the learned magistrate gave proper consideration to the question of costs, in particular whether he considered the principle of proportionality. The second question, which is in the alternative, is whether he gave adequate reasons for making the order. If he failed on either basis, the question remains whether there has been a substantial miscarriage of justice.
3 I have concluded that the magistrate erred by failing to give adequate reasons for the costs order. However, I am satisfied that there has not been a substantial miscarriage of justice, because the costs were not disproportionate, having regard to the circumstances of this case. Consequently, the appeal must be dismissed.
4 My reasons follow. While the basic facts and ultimate issues can be stated shortly, there are a number of preliminary matters that need to be addressed because of the course the matter took, both before and during the appeal hearing. Further, both in the Magistrates Court and on appeal, the appellant was self-represented. It has been necessary, therefore, to set out the background to the appeal, including the facts of the offence and previous court proceedings, in detail, so that the basis on which I have proceeded is apparent.
5 The appellant was convicted of the parking offence on 2 September 2014 in the Joondalup Magistrates Court. The charge was pursuant to cl 2.4(1) and cl 9.1(1) of the City of Joondalup Parking Local Law 2013 (the Local Law). It alleged that on 21 February 2014, within the City of Joondalup, he:
[P]arked a vehicle, namely a Holden sedan [registered in his name], in a parking area [along Reid Promenade] where a permissive parking sign indicated that a fee was payable for parking, without purchasing a ticket for a period of parking from the ticket machine equipped for issuing a ticket for that area and placing that ticket inside the vehicle in a position where the ticket was clearly visible and all details could be read by an authorised person from outside and from the front of the vehicle at all times while the vehicle remained parked in that parking area.
6 At the time, the maximum penalty for that offence was a fine of $1,000. As stated above, the appellant was fined $60 and ordered to pay the respondent's costs of $1,478.70. The respondent was represented in the prosecution by a legal practitioner from a private law firm.
7 The appellant appealed against his conviction and the costs order. The appeal is pursuant to s 7 Criminal Appeals Act 2004 (WA). Leave is required on each ground of appeal, and must not be given unless the ground has a reasonable prospect of succeeding: s 9.
8 A hearing was held before Corboy J to determine whether the appellant should be given leave to appeal on any of his proposed grounds of appeal. The first proposed ground of appeal alleged that the costs order made by the magistrate was 'manifestly excessive'. Following the leave hearing, the parties were invited to provide further submissions on whether the magistrate had erred, arguably, in awarding costs without receiving further evidence on the reasonableness of the amount claimed; that is, whether the magistrate had erred by failing to adequately consider the question of costs by reference to the actual conduct of the prosecution. That was not a matter that had been raised by the appellant.
9 After receiving further submissions, Corboy J delivered his decision on 16 September 2015: Basham v City of Joondalup [2015] WASC 345. He refused leave on the proposed grounds of appeal that challenged the conviction, but granted leave on grounds relating to the costs order. The engrossed order states: 'Leave granted in respect of ground of appeal 1.'
10 The original proposed ground 1 was in the following terms:
The awarding of costs to the sum of $1478 is manifestly excessive to the cost of the fine. The costs sought are disproportionate to the criminality. Hobson Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386.
11 However, in his reasons, his Honour expressed the grant of leave in the following terms:
I have concluded that grounds of appeal to the effect that the magistrate erred by failing to adequately consider the question of costs, further or alternatively, failed to give adequate reasons for the order that he made, would have a real prospect of success ... [4].
I have found in the next section of these reasons that, arguably, the magistrate erred in the manner in which he determined the respondent's application for costs. Accordingly, I have concluded that the appellant should be permitted to contend in the appeal that proportionality between the fine imposed and the costs of the prosecution is a relevant factor in determining the amount of costs; that the magistrate erred by not considering that factor and that any order that might be made in the appeal in respect of the costs of the prosecution should reflect, among other things, proportionality between the penalty and the costs allowed [25].
As has already been indicated, I consider that there is a real prospect that the appellant could succeed on grounds of appeal that alleged that the magistrate erred by failing to adequately consider the question of costs, further or alternatively, failed to give adequate reasons for the order that he made [34].
12 Having regard to his Honour's conclusions, the reference to 'ground of appeal 1' in the engrossed order must be taken to be a reference to the ground of appeal relating to the costs order, as amended by his Honour in [4] and [34] of his reasons. That is, ground 1 is to be taken to encompass two grounds to the effect that:
13 It follows that, in my opinion, leave was not granted by Corboy J on ground 1 in its original terms. As will appear later, his Honour rejected the appellant's argument, based on Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (Hobsons Bay City Council), that the magistrate should have limited costs to a sum consistent with costs that would be ordered in a police prosecution. However, as appears above, his Honour concluded that the appellant should be permitted to contend in the appeal that proportionality between the fine imposed and the costs of the prosecution is a relevant factor in determining the amount of costs (relying on Hobsons Bay City Council); that the magistrate erred by not considering that factor; and that any order that might be made in the appeal in respect of the costs of the prosecution should reflect, among other things, proportionality between the penalty and the costs allowed: Basham v City of Joondalup [25].
14 I understand the position to be, therefore, that the appellant has leave to appeal against the costs order on the grounds formulated by Corboy J, that the alleged lack of consideration of proportionality is to be regarded as a particular of the first ground, and any argument about proportionality will otherwise be relevant to any order this court may make as to costs of the prosecution in the event that the appeal succeeds.
15 On 16 September 2015 Corboy J made orders that the appellant file and serve any amended notice of appeal and any further written submissions in the appeal by 6 October 2015 and that the respondent file and serve any further written submissions in the appeal by 15 October 2015. The appeal was listed for hearing on 19 October 2015.
16 On 4 October 2015, the appellant forwarded 'amended submissions' to the court, but he did not file an amended notice of appeal. At the appeal hearing on 19 October 2015, no issue was taken with the absence of an amended notice. The grounds on which the appeal proceeded were taken to be those formulated by Corboy J, as outlined in [12] above, which may be regarded as an amendment by the court of ground 1 in the original notice of appeal, pursuant to s 40(1)(k) of the Criminal Appeals Act.
17 The appellant's 'amended submissions' sought to run again arguments he had made on the leave application challenging the constitutional validity of the Local Law and the powers of the magistrate to fine him and order him to pay costs. Those arguments were rejected by Corboy J in Basham v City of Joondalup [36] ‑ [40] and [47] ‑ [52]. They have no relevance to the amended grounds of appeal in respect of which the appellant has leave. Consequently, he was not permitted to pursue those arguments at the hearing. To the extent that his written and oral submissions arguably addressed the issues raised by the amended grounds of appeal, there was one aspect that was also rejected by Corboy J, namely the proposition that the respondent could have had the police prosecute the charge. His Honour dealt with that matter at [21] ‑ [23]; a breach of a local law concerning parking cannot be prosecuted by a police officer (see below at [46] - [55] and [119] of these reasons).
18 The respondent did not file further written submissions before the appeal hearing, being content to rely on previous written submissions and oral submissions to be made at the hearing. Those submissions included reliance on s 14(2) of the Criminal Appeals Act, that, even if one or both of the grounds of appeal should be decided in favour of the appellant, the appeal should be dismissed on the basis that no substantial miscarriage of justice occurred, because the costs order was appropriate in all the circumstances.
19 After hearing submissions on 19 October 2015, I gave leave to the respondent to file and serve an affidavit in support of the submission that there has been no substantial miscarriage of justice, and to the appellant to file an affidavit in response. The affidavits would be relevant, in any event, to the exercise of my discretion in making a new costs order if the appeal was successful. Leave was also granted to the parties to apply to list the matter for further hearing within 21 days after service of the respondent's affidavit or within 14 days after service of the appellant's affidavit in response, whichever was the later.
20 An affidavit of Timothy Luke Beckett, sworn 28 October 2015 (Mr Beckett's affidavit), was subsequently filed on 29 October 2015 on behalf of the respondent. It set out in detail the work carried out on behalf of the respondent by its lawyers in conducting the prosecution, and the manner in which the costs claimed were arrived at. I have admitted the evidence under s 40(1)(e) of the Criminal Appeals Act.
21 On 12 November 2015, the appellant filed an affidavit sworn that day, purporting to be in response to Mr Beckett's affidavit. Its contents are in the nature of submissions, mostly repeating submissions the appellant had already made, and do not attest to any factual matters. There is, therefore, no evidence in that affidavit to admit under s 40(1)(e) of the Criminal Appeals Act.
22 No application was made to list the matter for further hearing.
23 The resolution of the issues on this appeal requires a consideration of:
(a) the circumstances in which the appellant came to be prosecuted at trial; and
(b) the conduct of the hearing in the Magistrates Court.
24 The facts of the offence and the appellant's conduct subsequent to being issued with an infringement notice, as set out below, are derived from the evidence of the sole witness called by the prosecution at the trial hearing (the parking officer who issued the infringement notice) and the exhibits produced through that witness. The appellant did not challenge the evidence except in one respect, which I will refer to later. The evidence established the following facts.
25 On Friday, 21 February 2014, at approximately 10.00 am, a Holden sedan registered number 1DMF600 was seen by a parking officer employed by the City of Joondalup to be parked in a parking bay on Reid Promenade in Joondalup. It was in an area where a parking sign indicated that, between 8.00 am and 5.30 pm from Monday to Friday, parking was permitted for one hour and a ticket was required to be purchased. There was no ticket displayed on the front dashboard, nor anywhere else that was visible within the vehicle, the parking officer having walked around the vehicle and looked inside. There was also no sign that the vehicle had broken down. The parking officer took photographs of the vehicle and the parking sign and issued a parking infringement notice (exhibit F in the trial), which she placed under a windscreen wiper.
26 The infringement notice (no. P242180) was addressed 'To the owner of the vehicle' and stipulated that it was issued under the 'City of Joondalup Parking Local Law 2013' on 21 February 2014 at 10.15 am. It stated that the offence was under 2.4(1), '[parking] contrary to requirements where a ticket is required to be displayed', and stipulated the penalty to be $60 and due by 21 March 2014. It identified the vehicle by its registration number and the description 'Holden sedan'.
27 On the reverse of the infringement notice was information about the owner's options for dealing with the matter, including information about s 9.13 Local Government Act 1995 (WA) (LGA). In accordance with the provisions of that section, the notice informed the owner that he was required to identify the person who was the driver or person in charge of the vehicle at the time when the offence was alleged to have been committed. He was also informed that, in the absence of proof to the contrary, the owner would be deemed to have committed the offence unless, within 28 days after being served with the notice, he either:
(a) informed the CEO or an authorised employee as to the identity and address of the person who was the driver or person in charge of the vehicle at the time the offence was alleged to have been committed; or
(b) satisfied the CEO that the vehicle had been stolen or unlawfully taken, or was being unlawfully used, at the time the offence was alleged to have been committed.
28 The parking officer did not see a driver who appeared to be associated with the vehicle.
29 The City of Joondalup subsequently received a letter from the appellant, dated 14 March 2014 (exhibit F), in which he stated he had received the infringement notice, identifying it by its number, and claimed that he was not the driver of the vehicle and did not know who was. By admitting the receipt of the infringement notice, he impliedly admitted being the owner of the vehicle. He indicated his expectation that his name would be removed from the infringement notice; the infringement notice in fact did not identify him by name, being addressed to 'the owner of the vehicle'. He then indicated that, if that did not occur, he was requesting to have the matter 'determined by a court of competent jurisdiction'. The balance of the letter purported to assert propositions about the law and his rights based on the Commonwealth Constitution. Their only relevance in this appeal is that they affect a claim by the respondent about the work that was required to be done by its legal representatives.
30 By a letter to the appellant dated 24 March 2014 (exhibit H), the City of Joondalup acknowledged receipt of his letter and informed him that if he was not able to provide the name and address of the driver, the onus remained on him, and he was required to pay the penalty of $60 within 28 days.
31 The appellant wrote to the City of Joondalup again in respect of the infringement notice on 27 March, the year being incorrectly typed as 2013 (exhibit J). In intemperate language he again claimed he was not the driver and said he could not remember who was, and asserted erroneous propositions of law about the onus of proof in the circumstances of the case.
32 The City of Joondalup then commenced the prosecution by a prosecution notice lodged on 19 May 2014 in the Magistrates Court at Joondalup. The offence was particularised as set out in [5] above. The prosecutor was identified as 'City of Joondalup' and the official title of the person issuing the notice was given as 'Employee of the City of Joondalup'.
33 The matter was listed for mention on 6 June 2014. The appellant notified the court in writing that he was pleading not guilty to the charge. He did not appear on 6 June 2014. The endorsed plea of not guilty was recorded and the matter was adjourned to 2 September 2014 for hearing.
34 According to the transcript of 2 September 2014, the trial commenced at 10.47 am that day. The last time given in the transcript was 11.07 am. The learned magistrate commenced delivering his reasons at that time. The reasons occupied slightly more than three pages of transcript. There then followed exchanges between his Honour, the prosecutor and the appellant that are recorded in a further two pages of transcript. As Corboy J concluded in Basham v City of Joondalup, it is very likely, therefore, that the trial occupied less than 45 minutes of hearing time. On the appeal, counsel for the respondent accepted that 45 minutes seemed to be a fair estimation (appeal ts 49).[1]
35 As was stated earlier, the respondent called one witness, the parking officer. The appellant cross-examined her briefly, confirming with her that the photographs she took of his vehicle did not show him parking the vehicle and did not have a date and time stamp. He then queried with the magistrate whether the photographs were admissible, given the absence of a date and time stamp. His Honour reminded the appellant that he had not objected to their tender and explained that they showed in visual form what the witness had described in evidence. The appellant then queried with the witness whether she remembered if something shown in one of the photographs was a ticket. She answered that her notes, recorded at the time, indicated there was no valid ticket displayed on the dashboard.
36 The appellant elected not to give evidence, stating:
[E]verything has been submitted. I still stand here saying I never parked, so I don't know if there's any reason for me to sit there and say I didn't park there ... there's no evidence to give (trial ts 12).
37 The prosecutor (counsel appearing for the City of Joondalup) then made closing submissions in which he summarised the evidence and the effect of the relevant legislative provisions and documentary exhibits and submitted that, in the circumstances established by the evidence, the deeming provision in s 9.13 LGA applied and, as the appellant had not adduced any evidence, there was no proof to the contrary.
38 The appellant then made closing submissions in which he purported to rely on a Constitutional argument to challenge the Local Law and the deeming provision in the LGA, submitting erroneously that the prosecution had to present evidence that he was actually the driver in order to prove that fact. He then purported to assert from the bar table that he was not the driver of the vehicle and began to explain why the driver may have been some other person, before the magistrate prevented him from continuing, as he had elected not to give evidence and was now effectively giving evidence from the bar table.
39 The magistrate then convicted the appellant on the basis that he was deemed to have been the driver, pursuant to s 9.13 LGA. His Honour gave detailed reasons.
40 After the appellant was convicted of the offence, the prosecutor made the following submissions:
[T]he maximum penalty for the offence is $5000. The modified penalty is $60. In relation to sentencing, this is not a first offence. The accused was also convicted in May 2013 of a similar offence under City of Joondalup Parking Local Law. On that occasion Roberts M imposed a penalty of $60 and ordered the accused to pay costs in the amount of $1478.70 at trial. In the current case our application for costs will be along the same lines.
That's approximately four hours at the accused's costs scale. There has been two appearances, getting up for trial and having witnesses attend today. So we will seek costs again in the amount of $1478.70 and in relation to sentence, typically a modified penalty is imposed for parking, but we do note that it's a second offence and that that might have an aggravating - well, not an aggravating factor but that might not attract the mitigation that might be applicable to a first offence (trial ts 21).
41 I note that the maximum penalty referred to by the prosecutor was incorrect. As counsel for the respondent subsequently informed this court, the maximum penalty at the relevant time was a fine of $1,000. The error is of no consequence to the penalty that was imposed, having regard to the circumstances of the offence. However, on the appellant's argument, it is relevant to the consideration of proportionality in respect of costs. I will deal with that argument in context later.
42 After the prosecutor's submissions, the appellant was invited to make submissions about the penalty and costs. He pointed out that the previous offence was for 'parking too long' in a restricted time zone, not for failing to purchase or display a ticket. In relation to the claim for costs, he said that he believed the council had a choice 'to either use the Department of Police Prosecutions or their own private lawyer' (trial ts 21). He said he found it 'extremely unfair, when they do have the choice to use Department of Police Prosecutions, to hit me with the costs' (trial ts 21). He said that, as a single parent and a university student, he was 'struggling to pay the last one' (trial ts 22). Otherwise, the appellant simply maintained his innocence, but said he was prepared to pay the $60 fine.
43 The magistrate told the appellant that he was not going to be re‑punished for the previous offence, and that the only reason for the mention of the prior record was to decide whether there were reasons to impose a lesser penalty. His Honour then said:
[A]lthough I don't know your age, you appear before the court [an] articulate and mature individual, and there is no reason in the courts for you (sic) [should read 'me'] to impose a penalty greater than the modified penalty, particularly in view of the costs which are quite significant. You will be fined $60, and ordered to pay costs [of] $1,478.70 (trial ts 22).
44 The magistrate gave no further reasons for the costs order.
45 Given that (a) the costs the appellant was ordered to pay consisted substantially of the respondent's costs of having legal representation, and (b) the appellant's submission challenges the appropriateness of that representation, it is necessary to examine the legislative framework governing who can appear in prosecution proceedings for the respondent, before dealing with the power to order costs.
46 An offence under cl 2.4(1) and cl 9.1(1) of the Local Law is a simple offence: s 67(2) Interpretation Act 1984 (WA). The jurisdiction to hear and determine a charge of a simple offence is within the criminal jurisdiction of the Magistrates Court, which is a court of summary jurisdiction: s 11(1), (2)(a) and (4) Magistrates Court Act 2004 (WA). The procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA) (CPA): s 67(3) Interpretation Act. The procedure for prosecutions in courts of summary jurisdiction is set out in pt 3 of the CPA. The prosecution of the charge in the present case was properly commenced in the Magistrates Court: s 22(2) CPA. By s 20(2) CPA, where another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.
47 Section 9.24(2) LGA provides that the prosecution for an offence against a local law may be commenced by:
(a) a person who is acting in the course of his or her duties as an employee of the local government or regional local government that made the local law; or
(b) a person who is authorised to do so by the local government or regional local government that made the local law.
48 Section 9.29 deals with representation of a local government in court. The section provides that in proceedings (which is defined to include proceedings in the Magistrates Court) a person who is the CEO or an employee of the local government appointed in writing signed by the CEO to represent the local government generally, or in a particular case, may represent the local government in all respects as though the person were the local government.
49 However, a party's right to representation in relation to criminal proceedings is also specifically provided for in s 172 CPA, which provides, relevantly for present purposes:
(1) A party to a case is personally entitled to appear before the court in order to present and conduct the party's case and to call, examine, cross‑examine and re‑examine witnesses.
...
(3) Unless this Act or another written law expressly provides otherwise, any entitlement of a party under this Act may be performed -
(a) on a prosecutor's behalf in a court of summary jurisdiction -
(ii) if the prosecutor is acting for or on behalf of a public authority, by an officer or employee of the public authority acting in the course of duty,
(b) on any party's behalf in any court -
(i) by a legal practitioner[.]
50 Section 3 of the CPA defines a number of terms relevant to the construction of s 172. 'Party', in relation to a charge, means the prosecutor or the accused. For the purposes of a prosecution in a court of summary jurisdiction, 'prosecutor' means 'the person who commenced the prosecution or a person who in court represents that person'. 'Public authority' includes 'a local government or a regional local government': s 3 CPA.
51 There is nothing in the CPA that excludes the application of either pars (a) or (b) of s 172(3) CPA. Nor, in my opinion, is there anything in the LGA that excludes the application of those paragraphs.
52 Section 9.29 LGA empowers the CEO and a duly appointed employee to represent the local government as if that person were the local government. It applies in respect of both civil and criminal proceedings in the Magistrates Court. In the context of criminal proceedings, it means that the right of the local government to appear and conduct its case in person, as a party, pursuant to s 172(1) CPA, can be exercised by the CEO or a duly appointed employee. To that extent, s 9.29 LGA would appear to provide the only means by which a 'personal' appearance by the local government can be made for the purposes of s 172(1) CPA.
53 However, the terms of s 9.29 do not expressly provide that the rights of the local government as a party under s 172(1) cannot be exercised on its behalf by a legal practitioner; nor do they expressly provide that an employee of the local government (other than one to whom s 9.29 applies) cannot appear and prosecute a case on behalf of the prosecutor, as provided for in s 172(3)(a), where the prosecutor is a person who has commenced a prosecution under the Local Law pursuant to s 9.24(2)(a) LGA (see above).
54 Section 9.29 LGA is concerned with empowering a person to be a representative of local government in court proceedings. Section 172 CPA is concerned with identifying who can perform the rights the local government has as a party in criminal proceedings.
55 The combination of the provisions of the LGA and the CPA results in a scheme whereby a prosecution case for a charge under a local law may be conducted in court by:
56 The power to award costs is statutory: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 182 ‑ 183 (Mason CJ & Deane J), 193 (Dawson J); Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182 [10].
57 The power to order costs in summary criminal proceedings in this State is found in s 67 of the CPA. Pursuant to s 67(1), a successful party to a prosecution is entitled to the party's costs, subject to the Official Prosecutions (Accused's Costs) Act 1973 (WA) and the other provisions of s 67. As stated earlier, s 3 of the CPA defines 'party' to mean the prosecutor or the accused.
58 Section 67(2) provides that, if a court convicts an accused of a charge, it may order the accused to pay all or a part of the prosecutor's costs. Section 67(3) provides that the amount of costs ordered under s 67(2) may be determined in accordance with the relevant determination made under s 275 of the Legal Profession Act 2008 (WA) for the purposes of the Official Prosecutions (Accused's Costs) Act and with s 280 of the Legal Profession Act.
59 The relevant costs determination made under s 275 of the Legal Profession Act is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA) (the Determination). For present purposes, the Determination specifies the hourly rates that are to apply to the remuneration of legal practitioners. It also specifies a scale of costs for particular proceedings within a prosecution in the Magistrates Court. The maximum hourly rate for a senior practitioner (defined as being a practitioner who has been admitted for five years or more) is $374. The maximum amount allowed for a half‑day trial, inclusive of preparation and counsel fee, is $6,688.
60 As the appellant has suggested in his submissions that the respondent acted unreasonably in incurring legal costs, I will refer to s 67(4) CPA (which was mentioned by Corboy J in Basham v City of Joondalup), if only to identify the specific provision in the CPA that deals with that issue and to indicate that it has no application in this case. Section 67(4) provides that a court may reduce the costs that it would otherwise have awarded, or may refuse to award costs, in certain circumstances set out in pars (a) and (b). The circumstances concern the conduct of the party seeking costs. In my opinion, they have no relevance in this case.
61 The terms of s 67(4)(a) would appear to be apposite where an accused is seeking costs after acquittal, and not where the prosecutor is seeking costs. It refers to 'any act or omission of or caused by the party (other than an act or omission that is the subject of a charge) [which] was unreasonable in the circumstances and contributed to the institution or continuation of the case'. This reflects the language used by Mason CJ in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 544 to identify circumstances which might justify the refusal of an award of costs to a defendant in summary proceedings who has been acquitted of an offence. In any event, there is no conduct of the respondent that would meet that description.
62 Section 67(4)(b) refers to 'any act or omission of or caused by the party during or in the conduct of the case [which] was calculated to prolong the case unnecessarily or cause unnecessary expense'. There is no evidence to support a finding that the respondent in this case did anything that was calculated (that is, intended or planned, or had a tendency) to prolong the case or cause unnecessary expense. The appellant's argument does not seek to attribute any motive to the respondent; rather, it challenges, within the context of the argument concerning proportionality, the reasonableness of the respondent using private legal practitioners.
63 A question arises whether s 67(4) was intended to be exclusive as to the circumstances in which the unreasonableness of the conduct of a party seeking costs can be taken into account in determining costs. It is not necessary to decide that question for the purposes of this appeal, because I consider that the appellant's argument challenging the respondent's use of private legal practitioners is without merit, as I will explain later. The incorporation of that challenge by the appellant in the context of the argument concerning proportionality is inapt, in any event. The consideration of proportionality requires an objective assessment of the criminality of the offender's conduct, which one would expect to be reflected in the penalty imposed, and of the relationship that the quantum of the costs sought bears to that criminality. The question is whether the quantum is reasonable by that objective standard, rather than whether the prosecuting authority's choice to have legal representation was reasonable.
64 I note, finally, that, while proportionality may be a relevant factor in the court's exercise of discretion under s 67(4)(b) (having regard, for instance, to the reference to unnecessary expense), this does not preclude proportionality being a relevant factor more generally in the making of a costs order under s 67(2). Section 67(4) is concerned with a reduction of costs that the court 'would otherwise have awarded'. Corboy J, in granting leave, clearly had in mind that proportionality may be a relevant consideration at the stage of determining the appropriate quantum of costs that 'otherwise' would be awarded, that is, before the matters in s 67(4) arise.
65 Section 67(2) CPA confers a discretionary power. What is the extent of that discretion?
66 In the leave application, Corboy J said, relying on City of Armadale v Merrick [2014] WASCA 125 (S) and Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80:
There is no general rule that costs follow the event in criminal matters. Rather, a magistrate has a general and unconstrained discretion with respect to costs, but that discretion must be exercised judicially (Basham v City of Joondalup [30]).
67 His Honour also referred to the rationale provided by Mason CJ in Latoudis v Casey for rejecting the proposition that in summary proceedings there should be a general rule that costs follow the event.
68 In City of Armadale v Merrick, the propositions referred to above (as stated by Corboy J) were said to have been accepted by the parties. The Court of Appeal also relied on Wilson v McDonald. In that case, Martin CJ referred to Latoudis v Casey for the proposition that 'in relation to the costs of summary criminal proceedings before magistrates ... there [is] no general rule to the effect that costs ordinarily follow the event': Wilson v McDonald [9].
69 However, both in City of Armadale v Merrick and Wilson v McDonald, the court was concerned with the awarding of costs on appeal, having regard to the provisions of the Criminal Appeals Act, not the correctness of a costs order made in the Magistrates Court following a summary prosecution. Section 14(1)(h) Criminal Appeals Act provides that the Supreme Court 'may ... make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction'. A construction of s 14(1)(h) to the effect that it provides a 'general and unconstrained discretion' (subject to it being exercised judicially) can be readily understood in light of the language used, although there may be a question as to whether, to the extent that it concerns 'costs of the proceedings in the court of summary jurisdiction', the exercise of discretion under s 14(1)(h) is affected by s 67(1) CPA, given that the provisions form part of an overlapping statutory scheme: see Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [50] (Buss JA); Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726.
70 Latoudis v Casey concerned an appeal against a magistrate's refusal of a defendant's application for costs after a charge had been dismissed. The context in which the High Court discussed the scope of the magistrate's discretion to order costs was a statutory provision in Victoria which provided that the court 'may order the informant or the complainant to pay to the defendant such costs as the Court thinks just and reasonable' where a charge was dismissed: s 97(b) Magistrates (Summary Proceedings) Act 1975 (Vic), which was subsequently replaced by s 131(b) Magistrates Court Act 1989 (Vic). There was another provision in both statutes, in similar terms, empowering the court to order the defendant to pay the prosecutor's costs in the case of a conviction: s 97(a) and s 131(a) respectively. Those provisions were in similar terms to s 151 of the now repealed Justices Act 1902 (WA), which provided:
In all cases of summary convictions and orders, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.
71 Again, a construction of such a provision to the effect that it provides a 'general and unconstrained discretion' (subject to it being exercised judicially) can be readily understood in light of the language used. However, the statutory context under consideration in the present case is different.
72 Section 151 of the Justices Act was repealed by s 51(1) of the Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004) (the amending Act) and replaced with a new s 151, the title of the statute also changing to Criminal Procedure (Summary) Act 1902 (see s 22 of the amending Act). The new s 151 conferred on magistrates in summary prosecutions a discretion in respect of costs that was in similar terms to s 67 CPA. In particular, s 151(2) was in the same terms as s 67(1) CPA. The parts of the CPA which deal with prosecutions in courts of summary jurisdiction replaced the Criminal Procedure (Summary) Act.
73 Unlike the original s 151 of the Justices Act, s 67 CPA does not confer a general and unconstrained discretion as to costs (see Taylor v WA Police [2007] WASC 158 [35] ‑ [41] (Simmonds J)). Subsection (1) provides that a successful party is entitled to their costs. Giving the language of the provision its natural and ordinary meaning, the effect of the subsection is that, in summary criminal proceedings, costs will ordinarily follow the event. However, subsection (1) is made 'subject to ... this section'. It is, therefore, qualified by subsections (2) to (4).
74 Section 67(2), which deals specifically with a prosecutor's costs where an accused is convicted of a charge, provides that 'the court may order the accused to pay all or part' of those costs. In light of the views expressed in City of Armadale v Merrick and Wilson v McDonald, and by Corboy J in the leave application at [30], a question arises whether the discretion conferred by s 67(2) is 'general and unconstrained', including a discretion to refuse to order payment of the prosecutor's costs, or whether the discretion is confined to determining the amount of the costs.
75 If the first‑mentioned construction were adopted, it would render s 67(1) ineffective insofar as it was intended to apply to a prosecutor. It would be meaningless to speak of a party's entitlement to costs, if the court has a general discretion whether or not to award costs to that party. Yet, if subsection (1) was not intended to include a prosecutor, one would have expected it to refer only to 'a successful accused'. As stated earlier, 'party' is defined in the CPA to mean 'a prosecutor or an accused'.
76 Each of the provisions of s 67 must be read in the context of the other provisions of that section: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 ‑ 382 [69] ‑ [71]; Edmunds v Starling [12]. Moreover, each provision must be given effect, so that 'no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent': The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414 (Griffith CJ), cited in Project Blue Sky v Australian Broadcasting Authority (382) [71]. As was stated in Project Blue Sky v Australian Broadcasting Authority, '[w]here conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions' (382) [70]. A construction should be adopted 'that produces the greatest harmony and the least inconsistency': Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135, 161 (Cooper CJ), cited in Project Blue Sky v Australian Broadcasting Authority (382) [70]; Truman v Truman [2008] FamCAFC 4; (2008) 216 FLR 365, 394.
77 The second reading speeches and parliamentary debates in respect of the bills that resulted in s 151 of the Criminal Procedure (Summary) Act and s 67 of the CPA did not deal with the intended effect of the provisions now contained in s 67(1) and (2): see Hansard 4 December 2003 p14292b-14294a; 1 April 2004 p1575b‑1584a; 26 August 2004 p5722b‑5726a. The explanatory memoranda for the Courts Legislation Amendment and Repeal Bill 2003, which introduced the new s 151, explained that the section was intended to provide consistency in the award of costs by the use of similar scales, and greater certainty and fairness in the decision to award costs and the process to calculate those costs. It did not address the issue of construction I am now considering.
78 In my opinion, a construction of s 67(2) that confines the discretion to the determination of the amount of the costs to be paid, which is open on the language used, produces the greatest harmony between the provisions and gives effect to that aspect of s 67(1) which confers an entitlement to costs on a successful prosecutor. That entitlement would then be qualified by the discretion under s 67(2) to order payment of only part of the costs, the discretion under s 67(3) to determine the costs in accordance with the relevant determination referred to therein, and the discretion under s 67(4) to reduce the costs the court would otherwise have awarded, or refuse to award costs, in certain circumstances.
79 Accordingly, while it is undoubtedly correct that there is no general rule that costs follow the event in criminal matters, s 67 CPA is a specific provision that gives effect to the presumption in favour of the successful party. Further, in my respectful opinion, for the reasons I have outlined, Latoudis v Casey, Wilson v McDonald and City of Armadale v Merrick can be distinguished, insofar as they speak of a 'general and unconstrained' discretion.
80 Nevertheless, the discretion under s 67(2) is broad. Its terms do not delimit the factors that may be taken into account in determining how much of the prosecutor's costs an accused should be ordered to pay. In particular, they do not confine the exercise of discretion to order payment of only part of the prosecutor's costs to circumstances where the conditions in s 67(4)(a) or (b) are met. Generally, it is not appropriate to read into a provision that grants powers to a court a condition or limitation which is not found in the words used: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 81 [21] (Gaudron & and Gummow JJ). I note also that the wording of s 67(4) does not purport to limit the discretion in s 67(2); s 67(4) is concerned with the reduction or refusal of costs that the court 'would otherwise have awarded', if certain circumstances exist. If the circumstances do not exist, the costs that would otherwise be awarded will be determined having regard to s 67(1) ‑ (3).
81 Of course, the principle that the discretion in relation to costs must be exercised judicially is of general application and applies to s 67(2). It requires that the discretion not be exercised 'arbitrarily, capriciously or so as to frustrate the legislative intent': Oshlack v Richmond River Council (81) [22] (Gaudron & Gummow JJ). It must be exercised 'in accordance with established principle and factors directly connected with the litigation': Oshlack v Richmond River Council (96) [65] (McHugh J).
82 The appellant does not argue that the magistrate should have refused to make a costs order. The focus of this appeal is whether the magistrate exercised the discretion judicially in arriving at the amount of costs, in particular whether he had regard to proportionality. It is necessary to consider the basis on which proportionality was relevant in determining the amount of costs.
83 The relevance of proportionality in the making of a costs order against an accused convicted in summary proceedings has been considered in a number of single judge appeals in this State.
84 In Flatow v Mullins (Unreported, WASC, Library No 5207, 1 February 1984), the respondent was convicted, on his plea of guilty, of permitting a dog to attack a person, an offence under the Dog Act 1976 (WA). The maximum penalty was a fine of $100. The complainant sought $81 in costs. The magistrate awarded those costs, but imposed what he described as a 'nominal' fine of $5, having regard to the totality of the financial burden that would be suffered by the respondent. The prosecutor appealed against the inadequacy of the fine, the first ground being that the magistrate erred in law by taking into account the costs payable by the defendant when imposing a fine or, alternatively, by misdirecting himself as to the weight to be attached to the costs in the exercise of his sentencing discretion. Dismissing the appeal, Smith J said:
It is, of course, axiomatic that the amount of a fine should be determined in relation to the gravity of the offence. But it is equally clear on the authorities that a sentencer should always have regard to the totality of the financial burden suffered by the offender as the result of the offence: see Thomas Principles of Sentencing 2nd Edition at p 340. Where the combined total of an appropriate fine and an order to make payment towards the costs of the prosecution constitutes a penalty which is totally out of proportion to the offence it is appropriate to scale down either the fine or the amount of the order to pay prosecution costs.
85 His Honour's reference in that case to the totality of the financial burden that would be suffered by the offender could be regarded as an instance of taking into account the offender's personal circumstances in the sentencing process. Indeed, his Honour noted that '[o]ne of the first principles to be observed when imposing a sentence ... is that [it] must always be linked with the particular offender as well as the offence'. As a costs order may affect the offender's personal financial circumstances, the extent of the order may be relevant to his capacity to pay a fine. Conversely, the impact of a substantial fine on an offender's capacity to meet a costs order might be thought to be a relevant consideration in deciding the quantum of those costs.
86 However, the characterisation of the burden by Smith J as a 'penalty', following the propositions in Thomas DA, Principles of Sentencing (2nd ed), and including costs in the consideration of whether the penalty imposed on the offender is proportionate to his offending, would appear to be contrary to the principle that had been recognised earlier that costs in both criminal and civil proceedings are not awarded by way of punishment of the unsuccessful party, but are compensatory, in the sense that they are awarded to indemnify the successful party against the expense to which that party has been put by reason of the legal proceedings: see Latoudis v Casey (543) (Mason CJ); (562 ‑ 563) (Toohey J); (566 ‑ 567) (McHugh J); see also Armstrong v Boulton [1990] VicRp 20; [1990] VR 215, 221. Although in Latoudis v Casey the principle was considered in the context of a case involving a successful defendant who was seeking costs, the reasoning of the majority did not make a distinction between a successful defendant and a successful complainant in that regard.
87 In my opinion, the consequence of recognising that the purpose of a costs order is to compensate the successful party for the costs incurred, and not to punish the unsuccessful party, is as stated by Denham AsJ in Agar v McCabe [2015] VSC 654 [32], namely that a costs order is distinct from any punishment and the application of the principle that the punishment should 'fit the crime'.
88 In Thomas v Schwager (1997) 98 A Crim R 486, Parker J alluded to the question of whether the principle reflected in Flatow v Mullins was affected by the views expressed in Latoudis v Casey and the cases relied upon by the majority of the High Court in that case. His Honour had been invited by both parties to consider the decision in Flatow v Mullins 'and the sentencing principle which it reflects' (375). His Honour noted that both parties before him had accepted that the principle holds good and was not affected by the views expressed in Latoudis v Casey and the cases relied on by the majority. His Honour said that he came to consider the position of the respondent in the case before him 'on that basis'. The appeal had been brought by the complainant against the failure of the magistrate to impose a particular penalty (the details of which are not relevant for present purposes) and his failure to order costs in respect of the professional services of the Director of Public Prosecutions. Parker J allowed the appeal in both respects, but, having imposed the penalty, he 'scaled down' the costs he was prepared to order from $2,750 to $1,000, stating:
It seems to me that the burden now suffered by the respondent as a result of these offences would fairly be regarded as totally out of proportion to the offence if, in addition to those amounts, an order were now to be made that the respondent also meet professional costs of $2,750. Rather than scale down the amount of the penalties imposed, a course which would be undesirable because it could detract from the deterrent effect of the penalties, I am led to scale down the amount of costs which the respondent should be ordered to pay (495).
89 While it is apparent that Parker J applied the approach he did on the basis that both parties accepted that the principle reflected in Flatow v Mullins 'held good', it is noteworthy that his Honour dealt with the issue of proportionality by reference to 'the burden' that would be suffered by the respondent 'as a result of [the] offences' if he was required to pay all of the costs claimed, rather than regarding the costs as a penalty.
90 In Koenig v Fraser [2000] WASCA 262, Scott J, referring to Thomas v Schwager and Flatow v Mullins, relied on the concept of proportionality in holding that a magistrate had not erred when she declined to award the complainant professional legal costs, confining the costs order to the costs associated with issuing the complaint. She had imposed a fine of $500 on the defendant in that case after he pleaded guilty to a charge for an offence under the Electricity (Licensing) Regulations 1991 (WA). Scott J said:
The question of costs must always be considered in context. The learned Magistrate had determined to impose a fine and the application for costs fell for consideration in the overall context of the particular case bearing in mind the fiscal impact in its totality on the respondent. Her Worship was mindful of these considerations.
To have ordered the payment of costs sought by the applicant, would have resulted in a global financial burden on the respondent which was outside, and in this case, well outside, the appropriate imposition of fine and costs ... [10] ‑ [11].
91 In Johnson v Ayling [2013] WASC 312, the appellant referred to the global financial burden of the fine and costs in that case in his appeal against sentence. He had been fined $2,000 (globally) after being convicted of three offences of common assault, and had been ordered to pay costs of $5,000. The magistrate had stated that he was reducing the costs to take into account proportionality. In dismissing the appeal, Simmonds J accepted that proportionality was a relevant factor, relying on Koenig v Fraser and Thomas v Schwager, but concluded that he was not satisfied the appellant had shown that 'the global fine and overall financial burden the magistrate imposed were outside the range of a sound exercise of sentencing discretion' [241]. His Honour appears to have regarded the 'overall financial burden' as part of the sentence. I note that his Honour did not consider specifically the indemnity principle discussed in Latoudis v Casey as underpinning a costs order. Nevertheless, Johnson v Ayling illustrates the continuing application of the proportionality principle in determining costs in summary prosecutions in this State, both by magistrates and on appeal.
92 The appellant has relied, more particularly, on Hobsons Bay City Council in support of the proportionality principle and his argument that the costs he was ordered to pay were disproportionate to the offence. The facts and findings in that case are set out in Basham v City of Joondalup [19] ‑ [20].
93 Hobsons Bay City Council also involved prosecutions for parking offences. As was pointed out by Osborn J, breaches in respect of such offences under the relevant legislation in that case could be prosecuted either by a police officer, an authorised council officer or certain other authorised persons: Hobsons Bay City Council [28]. Having fined the defendant $600 in one instance and $250 in another, the magistrate in that case had refused to award costs in the amount sought, concluding that the total was disproportionate to the criminality of the respondent's conduct. The costs that were allowed were for filing and service fees and for the cost of a courtesy letter. The magistrate disallowed the component of the costs sought in each case which consisted of legal fees charged by the legal practitioners who had appeared for the Council to prosecute, totalling $1,470 in one case and $170.50 in the other. The cases had proceeded ex parte. The magistrate had regard to the fact that police could prosecute such offences and considered it a matter of bad luck for the defendant that he was prosecuted by a council, rather than by the police. He thought it was unfair to award the costs sought in those circumstances, because 'as a matter of principle' the defendant should not incur 'the additional liability of substantial costs based on who prosecutes': Hobsons Bay City Council [6].
94 For present purposes, it is sufficient to note that, on appeal, Osborn J concluded that the magistrate had relied on notions of consistency and proportionality [9]. He considered that it was open to the magistrate to take into account consistency with cases that were prosecuted by police as a relevant consideration [26], [29]. Secondly, he was of the view that the 'related issue' of proportionality between the costs sought and the criminality of the defendant's conduct was a relevant factor, notwithstanding that the purpose of an award of costs was not to punish the unsuccessful party but to indemnify the successful party [30], [34] ‑ [35]. His Honour accepted that the view put on behalf of the Council, that proportionality might have justified a reduction of the costs awarded, but not what was effectively a complete denial of professional costs, was a view that 'might be accepted', but it was not the only view open to the magistrate [37]. Osborn J concluded that it had not been demonstrated that the magistrate had made an error in the exercise of his discretion.
95 As I noted earlier, in Thomas v Schwager Parker J raised the question of whether Latoudis v Casey affected the application of the proportionality principle in relation to costs, but proceeded on the basis that both parties accepted it did not. In Hobsons Bay City Council, Osborn J noted that the appellant relied on Latoudis v Casey [20]. His Honour did not elucidate the manner in which that case might affect the proportionality principle, but distinguished the case on the basis that it concerned a successful defendant, who 'is ordinarily entitled to his or her costs' [20].
96 It is true that the majority in Latoudis v Casey concluded that in ordinary circumstances an order for costs should be made in favour of a successful defendant, but if entitlement in the ordinary case were to be regarded as a basis for a different approach to whether proportionality is relevant to an order for costs, the present case can be distinguished from Hobsons Bay City Council, because of the prosecutor's entitlement to costs under s 67(1) CPA. However, Osborn J accepted the proposition in Latoudis v Casey that is relevant for present purposes, namely that the purpose of a costs order is to compensate the successful party, not to punish the unsuccessful party. His Honour nevertheless considered that proportionality was a relevant factor. He articulated two reasons.
97 First, he considered that the idea of achieving 'proportionality of procedural costs to the dispute in issue', which is an obligation in some jurisdictions in civil case management, was relevant to summary prosecutions in the Magistrates Court [30]. Secondly, he relied on the fact that proportionality is 'a touchstone of just outcomes of the criminal justice system' [31], concluding that the magistrate was 'entitled to compare total outcomes in terms of fines plus costs, with other outcomes of the summary prosecution system not only as informing a view as to consistency, but also as informing a conclusion as to the proportionality of the costs sought to the criminality of the conduct in issue' [34].
98 It seems to me that the first rationale relied on by Osborn J involves the proposition that the costs of proceedings should bear a reasonable relationship to the nature of the proceedings, in particular the nature and circumstances of the offence, the issues to be resolved and what is required for their resolution. In my opinion, no exception could be taken to that proposition. Secondly, although the current provisions do not specify that the costs be such as the court considers to be 'just and reasonable', which were words used in previous statutory provisions, the notion that the costs order should be fair and part of a 'just outcome' is, in my opinion, an incident of the need for the discretion to be exercised judicially.
99 However, in my respectful opinion, the notion that the assessment of proportionality in this context can be informed by a comparison with other cases (in respect of 'total outcomes in terms of fines plus costs') presents problems. It is difficult to see how such a comparison could take into account the vicissitudes of individual cases which may affect the issues to be resolved, the amount of work that may be required to deal with those issues, and the duration of the hearing. This is particularly so in the busy jurisdiction of a summary court. The vagaries may be dependent on the approach taken by the accused to the proceedings. Any comparison could only ever be on a broad brush basis, and allowance would need to be made for departures from the norm, if a norm could be identified. In any event, the sort of comparison referred to by Osborn J in Hobsons Bay City Council, where charges under the relevant legislation could be prosecuted by the police, would not have been appropriate in the present case.
100 I draw the following conclusions from the above analysis:
(a) the burden on the offender of the combination of any financial penalty and costs, relative to the nature of the offence and the criminality of the offending conduct, which is an aspect of taking into account the offender's personal circumstances; and
(b) the objective in litigation that costs should bear a reasonable relationship to the nature of the proceedings and the issues to be resolved, which will require consideration of factors directly connected with the litigation;
101 In relation to 3(a), I note that, on the authorities, the issue is not one of 'proportionality between the fine imposed and the costs of the prosecution', which is the argument initially made by the appellant, but one of proportionality between the costs, or the total burden of fine and costs, on the one hand, and the offence, or the criminality of the offender's conduct, on the other. The penalty imposed would ordinarily be a reflection of the criminality, but if the fine has been reduced because of the amount of costs to be paid, as occurred in Flatow v Mullins and, it would appear, in the present case, it is incorporated in the weighing of the 'total financial burden' against the criminality of the offending, rather than weighed against the costs.
102 A question has arisen on the appeal as to whether costs, or the combination of a fine and costs, will necessarily be disproportionate in the relevant sense if the quantum exceeds the maximum penalty for the offence, when it is a fine. I have not identified any case that establishes a principle that costs, or the combination of a fine and costs, can never exceed the maximum penalty for an offence. It is implicit in the authorities referred to above that the maximum penalty is relevant to the question of proportionality. However, in my opinion, they do not exclude the possibility that an award of costs in excess of the maximum penalty may be appropriate in a particular case.
103 In Flatow v Mullins, for instance, the fact that the fine and costs 'approximated' the maximum penalty was considered by Smith J to militate against the argument that the fine was so inadequate as to demonstrate error. His Honour said:
[T]here was nothing to suggest that this was other than an isolated offence and the respondent was a first offender. In these circumstances, to my mind, it cannot be said that orders having the effect of imposing a financial burden which approximates the maximum penalty for the offence demonstrate an error in the exercise of the sentencing discretion.
104 His Honour did not suggest, however, that a financial burden that exceeded the maximum penalty would have been erroneous. It must be noted also that, in that case, the offender pleaded guilty by endorsement on the summons.
105 It may be that in some cases an award of costs that exceeds the maximum penalty would be regarded as disproportionate, but that is likely to reflect the relationship the total financial burden bears to the criminality of the offence, and the relationship the costs bear to the nature of the proceedings and the issues to be resolved.
106 There are at least two reasons, in my view, why it cannot be the case that the award of costs, in combination with any fine that is imposed, must be constrained by the maximum penalty. First, it would be contrary to the principle that the purpose of costs is to compensate the successful party, not to punish the unsuccessful party. Secondly, if the quantum of costs were to be so constrained, then, potentially, the greater the fine, the smaller the award of costs to which a successful prosecutor would be entitled, especially if the fine approached the maximum penalty. In general terms, that would appear to be inconsistent with the approach to proportionality I outlined at [100] above.
107 In short, while the maximum penalty is relevant to the question of proportionality, in my opinion it does not delimit the costs that can be awarded, if they are fair and reasonable having regard to other relevant factors.
108 Before turning to the merits of the grounds of appeal, it is necessary to consider the principles governing a magistrate's duty to give reasons, which is raised by the second ground.
109 There is no statutory provision requiring a magistrate to give reasons for a costs order. The only statutory provision concerning a magistrate's obligation to give reasons is s 31 Magistrates Act. That provision concerns reasons for a judgment, which is not defined, but in context appears to be a reference to the court's decision on the charge or cause with which it is dealing.
110 However, the duty to give reasons has been regarded as a necessary incident of the judicial process, to ensure that justice is seen to be done and to enable an appellate court to consider and determine whether or not the decision at first instance is erroneous, when there is a right of appeal: Nevermann v The Queen (1989) 43 A Crim R 347, 349 ‑ 350 (Malcolm CJ); Pettit v Dunkley [1971] 1 NSWLR 376, 387 ‑ 388 (Moffitt P); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 278 ‑ 279 (McHugh JA). These authorities establish that a failure to give reasons when they are required may constitute an error of law.
111 It has been recognised that these principles apply to a magistrate who makes a costs order in summary proceedings: Taylor v WA Police [51] (Simmonds J); Moloney v Collins [2011] NSWSC 628; Farlie v Magistrate Ross Sterland [2004] NSWSC 1001. The obligation to give reasons is consistent with the existence of a right of appeal against a costs order made by a magistrate. Moreover, as was noted above at [81], the discretion must be exercised judicially, not arbitrarily. As was noted by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision (279)[A].
112 However, as was acknowledged by Corboy J on the leave application, it is well established that the reasons given by a magistrate may be shortly stated, without being developed in any detail: see Nevermann (350); Taylor v WA Police [51]. What is required is that the essential ground or grounds upon which the decision rests should be articulated: Soulemezis v Dudley (Holdings) Pty Ltd (280)[D] (McHugh JA, referring to the general obligation on a judicial officer to give reasons). I respectfully agree with Corboy J (Basham v City of Joondalup [32] ‑ [33]) that, consistently with the authorities, the following principles govern the approach to be taken in the present case:
113 I turn then to a consideration of the grounds of appeal in light of the statutory framework and my conclusions concerning the legal principles.
114 The two alternative grounds of appeal are connected. The absence of any reasons from the magistrate in respect of the costs he ordered is relied on by the appellant as indicative of the magistrate's failure to properly consider the question of costs, in particular the issue of proportionality. On the other hand, the respondent argues that the circumstances of the case were such that the magistrate was required neither to make any further inquiry in respect of the costs sought on behalf of the respondent, nor to articulate reasons for making an order for the amount sought.
Ground 1 - Did the magistrate fail to give proper consideration to the question of costs?
115 The essence of the appellant's argument in respect of ground 1 is that the magistrate did not exercise his discretion, 'but continued to award the standard $1,478 costs that [have] been previously awarded several times'. He relies on two particulars which he submits demonstrate the failure to properly consider the question of costs:
116 There are two aspects to the second particular:
(a) The magistrate simply relied on the fact that the same sum had been allowed in previous cases and did not consider whether the amount claimed was reasonable as a reflection of the legal professional work that was necessary in this case; and
(b) The magistrate failed to consider whether the costs were proportionate to the offence and the fine imposed.
117 As the appellant is self‑represented, I will regard the second aspect as raising also the issue of whether the magistrate considered the total burden of fine and costs, on the one hand, and the offence, or the criminality of the offender's conduct, on the other.
118 The appellant's argument in support of the first particular relies on Hobsons Bay City Council as a precedent for the proposition that a magistrate should have regard to the costs that are awarded in prosecutions conducted by police prosecutors in determining the quantum of costs in a prosecution for a parking offence. He submits further that, if the approach by the courts to costs for parking offences is going to be different to the approach taken in respect of offences prosecuted by the police, especially more serious offences, then 'the information should be clearly noted' and the accused should be informed. In oral submissions, the appellant suggested that the prospect of a liability to pay significant costs should be notified on the infringement notice. He also submitted that the prosecution could have been conducted by the office of the Director of Public Prosecutions for Western Australia (DPP), and that the magistrate should have had regard to the fact that the DPP would not have sought costs. Each of these arguments should be rejected.
119 The first of them was rejected by Corboy J on the leave application, because the scheme for prosecuting an offence created by a local law under the LGA is different to that considered by Osborn J in Hobsons Bay City Council. As was outlined above at [46] ‑ [55], the combined effect of the provisions of the LGA and CPA is that such a prosecution may be conducted by the CEO, an employee of the local government or a legal practitioner. A parking offence under the Local Law in this case could not be prosecuted by a police officer. Therefore, unlike in Hobsons Bay City Council, there is no question of maintaining consistency with the costs that might be awarded if the offence was prosecuted by a police officer.
120 As to the argument concerning the DPP, while the Director may have authority under s 11 of the Director of Public Prosecutions Act 1991 (WA) to prosecute any offence, despite any other written law, there is no evidence before the court to suggest that the Director would prosecute an offence under the Local Law. In the absence of evidence to the contrary, I would take judicial notice that the DPP does not prosecute parking offences.
121 It is not necessary to consider the merits of the appellant's submission that an accused should be put on notice of the potential costs of a hearing. It could have no bearing on the outcome of this appeal, because the appellant was aware from the previous proceedings in which he was prosecuted by the respondent for a parking offence that he could be ordered to pay costs of the same magnitude as were ordered in the present case, if he was convicted after a trial. The magistrate on that occasion responded in the following terms to a submission from the appellant that the costs of $1,478.70 sought by the prosecutor would cause him and his family hardship:
Well you should be aware that if you plead not guilty and lawyers are involved, and if you lose the case - and it really has no merit - you may have to pay costs. And in fact what Mr Beckett is seeking is way below [what] would otherwise [be deemed] appropriate. For half a day hearing, you're looking at over $3,000. It's heavily discounted at the moment.
...
What I'm going to do is: I will leave the penalty at the infringement amount of $60, but I will award costs of 1,478.70. It should really have been a lot more (28/5/13, Joondalup Magistrates Court, Magistrate C Roberts, ts 30 ‑ 31: Mr Beckett's affidavit, attachment TB4).
122 The essence of the appellant's submission in respect of consistency was put by him to the magistrate in the present case: see [42] above. The appellant's reference to the 'Department of Police Prosecutions' might be regarded as conflating the police and the DPP, but he made the point that the respondent had a choice as to who it would use to prosecute, and it was unfair that he should be made to bear the costs of private lawyers in those circumstances. For the reasons I have given, that argument was misconceived. It is not obvious that the magistrate failed to consider the argument, rather than simply give it no weight because it was misconceived. However, a failure to consider the question of consistency raised by the appellant in this case would not establish a failure to adequately consider the question of costs.
123 As was acknowledged by Corboy J on the leave application, given the practical circumstances under which a busy court such as the Magistrates Court is required to conduct its business, an approach that involves a broader brush than would be applied on a taxation is acceptable [32]. However, his Honour considered that 'it is not an unnecessary burden to expect magistrates to make such inquiries as are necessary to fix the costs of a prosecution according to the applicable scale and the factors that may be relevant to ensuring that any costs that may be awarded are reasonable' [33]. I respectfully agree. The proposition is consistent with the principles discussed above under 'Discretion': [79] ‑ [81].
124 His Honour also noted, referring to Brookvista Pty Ltd v Meloni [2009] WASCA 180, that the court's approach in fixing the amount of costs should be 'logical, fair and reasonable', and that it is necessary for the court to have sufficient information to ensure the award of costs satisfies that standard and takes into account all other relevant matters, so as to do justice between the parties [33]. I respectfully agree that the views expressed by Newnes JA in Brookvista Pty Ltd v Meloni, as summarised by Corboy J in Basham v City of Joondalup, may be applied to the awarding of costs in summary criminal proceedings. Again, they are consistent with the general principles discussed above under 'Discretion'.
125 However, I also accept the respondent's submission that there will be circumstances in which sufficient information will have been put before the court by the parties in their submissions, in which case further inquiries by the magistrate will not be necessary.
126 In relation to the present case, Corboy J said:
It is not clear whether the magistrate gave consideration to the costs that ought to be awarded having regard to the circumstances of the prosecution that he tried or whether he merely adopted the amount that had been ordered in the previous proceedings (Basham v City of Joondalup [35]).
127 The appellant's submission is that the magistrate simply adopted the amount stated by the prosecutor because that had been ordered previously.
(1) The prosecutor provided a brief explanation for the costs sought: see [40] above;
(2) The magistrate would have had an understanding from previous cases that four hours of legal work, as particularised briefly by the prosecutor, would be a conservative estimate for a prosecution of the kind in the present case;
(3) The total costs sought were less than 25% of the amount allowable for a half‑day hearing and corresponded with less than four hours work on the Costs Scale.
129 In my view, it is not reasonable to conclude that the magistrate merely adopted the amount that had been ordered in the previous proceedings, given that some information was provided to him about the calculation of the costs in the present case. There is no reason to assume he would ignore the information that was specific to this case. That information included the number of hours for which costs were being claimed and the fact that the sum sought was intended to cover two appearances, getting up for trial and having witnesses attend on the hearing day: [40] above.
130 Further, I am not satisfied that the magistrate erred in not making further inquiries with the prosecutor. His Honour was a very experienced magistrate. I agree with the respondent's submission that, in the circumstances of a summary prosecution of a kind with which an experienced magistrate would have been familiar, the information provided by the prosecutor was sufficient to indicate the extent of work for which the costs were being claimed. Having presided over the trial, the magistrate was well‑placed to assess the reasonableness of the costs claimed in light of the issues, the evidence that was adduced, and the submissions that were made. The fact he made no further inquiry is consistent with the magistrate being satisfied with the information he was provided.
131 Ground 1 alleges specific error. For the second particular to succeed, the appellant must demonstrate that the magistrate failed to consider the reasonableness of the costs sought by reference to the circumstances of this case. There is nothing in what was said immediately before or at the time he made the order to suggest the magistrate did not turn his mind to the question of whether the costs were reasonable, in the sense that they were a reasonable reflection of the legal professional work that was necessary in this case. In my opinion, specific error has not been established in that regard.
132 The other aspect of the second particular is that the magistrate failed to consider proportionality.
133 The appellant's argument was to the effect that the failure is evident from the following:
(a) The costs were significantly more than costs awarded in cases involving 'more serious offences'.
(b) The magistrate proceeded, wrongly, on the basis that the maximum penalty was $5,000, rather than $1,000, so that any consideration of proportionality was flawed.
(c) The costs exceeded the maximum penalty for the offence.
134 The first aspect of the argument simply incorporates the particular concerning 'consistency' with police prosecutions, which I have dealt with above. The argument is misconceived.
135 As for (b), in the absence of reasons from the magistrate, it is not possible to ascertain whether the prosecutor's reference to the maximum penalty had any bearing on the magistrate's decision. This is relevant to ground 2. In the context of ground 1, I do not consider that one can conclude a specific error was made.
136 As for (c), the respondent submits that one cannot conclude the magistrate did not give proper consideration to the question of costs simply because the total of the fine and costs exceeds the maximum penalty. For the reasons I outlined above in considering the legal principles concerning proportionality, I agree.
137 In determining the fine to be imposed, the magistrate mentioned that the costs were quite significant. He appears to have imposed the modified penalty because of the substantial costs. It is implicit in that approach that his Honour did have regard to proportionality. I am not satisfied that he failed to take proportionality into account.
138 However, the difficulty in dealing with both aspects of the second particular of ground 1 is that the magistrate did not give reasons for awarding the costs he did.
Ground 2 - Does the failure to give reasons amount to error?
139 The absence of reasons does not establish, positively, that the magistrate failed to have regard to the circumstances of this case in making the costs order. However, because of the absence of reasons, it is not possible to determine on what basis he considered the costs to be fair and reasonable.
140 The position may be contrasted with what occurred on the previous occasion the appellant was prosecuted: see [121] above. On that occasion the magistrate explained (at least by implication) why he considered the costs were reasonable. He referred to the fact that he considered the appellant's case had no merit and the fact that the costs that were sought by the prosecutor were 'heavily discounted' and well below what would ordinarily be appropriate for a half day hearing.
141 Proportionality did loom as a matter that required some explanation in this case, given that the costs exceeded the maximum penalty. While, in my opinion, the maximum penalty did not delimit the quantum of costs that could be awarded, it was a relevant consideration. Because of the absence of reasons, it is not possible to ascertain whether the magistrate had regard to the incorrect maximum penalty stated by the prosecutor as a relevant consideration. More generally, there is no explanation why he considered the total sum of the fine and costs to be proportionate in terms of either the burden on the appellant or the relationship it bore to the nature of the proceedings and the issues that had to be resolved.
142 In short, the learned magistrate's process of reasoning has not been disclosed.
143 I do not accept the respondent's submission that the magistrate's experience, his familiarity with prosecutions of this kind, and the exigencies of proceedings in a summary court absolved the magistrate from the need to give reasons. The information presented to the magistrate was not such that the judicial exercise of discretion would inevitably result in the award of the costs claimed. It was necessary for the magistrate to give some explanation as to why the costs were fair and reasonable. In the absence of any explanation this court is placed in the position of not being able to ascertain whether the decision involved any specific error. In such circumstances, the magistrate's failure to provide any reasons amounts to an error of law.
Has there been a substantial miscarriage of justice?
145 It is necessary then to consider whether, despite the error, there has been no substantial miscarriage of justice. There would be no substantial miscarriage of justice if the costs order was within the sound exercise of discretion by the magistrate, the costs being fair and reasonable, having regard to the circumstances of the case.
146 The question needs to be considered within the framework of legal principles I have outlined above. In particular, I have regard to the following:
147 A detailed account of the work done and the costs incurred by the respondent was provided in Mr Beckett's affidavit. There is a preliminary question whether it is appropriate to have regard to that affidavit in determining whether there was no substantial miscarriage of justice, or whether I must determine that issue on the information before the learned magistrate.
Can the court have regard to the affidavit in considering the proviso?
148 Section 39(1) of the Criminal Appeals Act provides that an appeal court (which includes this court) must decide an appeal on the evidence and material that were before the lower court. Section 39(3) provides that subsection (1) does not affect the power of an appeal court in s 40 to admit evidence. Under s 40(1)(e), an appeal court may 'admit any other evidence'.
149 The authorities on the application of s 40(1)(e) concern evidence sought to be relied on by a convicted appellant in challenging either their conviction or their sentence: see for instance de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, 329 - 333 [148] ‑ [159] (Pullin JA); Urbano v The State of Western Australia [2006] WASCA 147 [8] (McLure JA), [48] ‑ [51] (Pullin JA).
150 In de la Espriella-Velasco v The Queen, Pullin JA, referring to the points that emerge from the decision of the High Court in CDJ v VAJ (No 2) [1998] HCA 76; (1998) 197 CLR 172 [52] ‑ [102], identified that 'the discretion to receive further evidence is unconfined by anything within s 40 and so the discretion is confined only by the subject matter of the legislation and by the requirement that it be exercised judicially and consistent with the judicial process' (330), [150](a). His Honour also identified that '[t]he power to admit further evidence exists to serve the demands of justice' (330), [150](b). However, it is 'highly unlikely that Parliament ... intended that s 40 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellant jurisdictions' (330) [150](d).
151 The admissibility and effect of evidence sought to be admitted under s 40(1)(e), in the cases to which I have referred, has been determined according to the principles concerning the admissibility and effect of 'fresh' evidence, on the one hand, and 'new' evidence, on the other. The evidence in the present case is new evidence, in that it was available at the time of the decision made by the magistrate.
152 The cases establish that, in an appeal against conviction, the overriding consideration will be whether the new evidence demonstrates that there has been a miscarriage of justice, and in an appeal against sentence, the question will be whether such evidence demonstrates that the sentence under challenge should not have been imposed: de la Espriella-Velasco v The Queen (332) [157]; Urbano v The State of Western Australia [9] (McLure JA). In de la Espriella‑Velasco v The Queen, Pullin JA pointed out that in a conviction appeal, an application should be made under s 40 for leave to lead further evidence if it is intended to support a ground of appeal alleging that there has been a miscarriage of justice [159].
153 It is difficult to translate those principles to circumstances in which a respondent seeks to rely on new evidence to demonstrate, on an appeal against costs, that there has been no substantial miscarriage of justice. I have not been able to find any authority in which new evidence has been sought to be relied on in such an appeal, let alone by a respondent in the context of a proviso argument. As I noted above, in de la Espriella-Velasco v The Queen, Pullin JA identified that the power to admit further evidence exists to serve the demands of justice (330) [150]. In my opinion, there is no reason why that principle should not apply generally, whether in support of a ground of appeal or the proviso, provided the discretion to admit further evidence is exercised judicially and consistent with the judicial process, and does not obliterate, in practical terms, the distinction between original and appellate jurisdictions.
154 In this case, the appellant's submissions on whether there has been a substantial miscarriage of justice raised matters that were not put to the magistrate, namely:
155 Mr Beckett's affidavit, at least in part, addresses those matters. As to the second matter, the transcript from the previous prosecution of the appellant, which was attached to Mr Beckett's affidavit, is relevant and will be discussed below.
156 In those circumstances, it is in the interests of justice, in my opinion, to admit the evidence in Mr Beckett's affidavit for the purposes of determining whether there has been no substantial miscarriage of justice, notwithstanding the prima facie requirement under s 39(1) of the Criminal Appeals Act that the court must decide an appeal on the evidence and material that were before the lower court. The question of whether, notwithstanding the success of a ground of appeal, there has been no substantial miscarriage of justice, will only arise in the appellate jurisdiction. In my opinion, to admit the evidence in this context would not obliterate the distinction between original and appellate jurisdictions. In accordance with the requirements of justice, the appellant has had an opportunity to submit evidence in response.
Outcome not affected if affidavit disregarded in considering the proviso
157 If I am wrong in my analysis of the law, and in receiving into evidence Mr Beckett's affidavit in the context of considering the proviso, it would not affect the outcome in the circumstances of this case. The reason is that there would be no practical difference between taking the evidence into account in deciding whether there was no substantial miscarriage of justice, and taking it into account in exercising afresh the discretion conferred on the learned magistrate to order costs. The parties agreed that, if the appeal was allowed, I should substitute an appropriate costs order: s 14(1)(d) Criminal Appeals Act. The magistrate who presided has since retired, so it would not be appropriate to order that the question of costs be dealt with again in the court below under s 14(1)(e) Criminal Appeals Act.
158 As I have understood the respondent's position on the appeal, if the appeal were allowed and I was required to decide what costs should be ordered in respect of the proceedings in the Magistrates Court, the respondent would seek the same sum that was ordered by the magistrate, namely $1,478.70. If I did not take the affidavit into account in considering the proviso, and I was not persuaded on the information before the magistrate that there was no substantial miscarriage of justice, I would be entitled to receive further information to decide what would be fair and reasonable costs in respect of the prosecution. Whether in considering the proviso or exercising my discretion afresh, the question will be whether I am satisfied that the costs were/are fair and reasonable, having regard to the need for proportionality. The considerations will be the same.
159 I will proceed to consider the proviso by taking into account Mr Beckett's affidavit on that basis.
The fact that the respondent uses lawyers rather than council employees
160 As I explained earlier, the respondent is entitled to engage a legal practitioner to prosecute for it in summary proceedings. However, whether costs so incurred are reasonable or proportionate, in the relevant sense, must be assessed having regard to the context of any particular case.
161 Although the appellant's arguments about who could prosecute offences brought by the respondent were misconceived, it is relevant to ask whether a prosecution of this kind could have been conducted by a representative of the respondent, other than a legal practitioner.
162 Counsel for the respondent acknowledged that some, but not all, local governments employ either in-house officers who have some background in law enforcement or other legal proceedings, or rangers who have undergone some legal training, although not formally qualified, to conduct prosecutions of the kind in this case. However, the respondent has always used legal representatives in parking matters on the basis that complex issues can arise.
163 Counsel submitted that such matters might include the interpretation and application of provisions of the LGA such as the deeming provisions of s 9.13, which is what arose in this case. They might also include proving matters such as whether a parking area is within a particular district, and ensuring documentary and oral evidence complies with the rules of evidence. On occasions issues of law will arise for consideration, such as whether a mistake, which is claimed to have led to an alleged offence, constitutes a mistake of fact or a mistake of law. Such matters, it was submitted, require the application of legal expertise. Accordingly, the City of Joondalup has routinely used solicitors to deal with hearings of this kind. It was submitted that, apart from the benefit to the respondent, the court also benefits from having assistance on matters of law.
164 Of course, the fact that the respondent may routinely use solicitors and perceives benefits to itself and the court could not determine whether the costs incurred are, on an objective assessment, fair and reasonable. However, in my opinion, the justification set out above relies on a realistic assessment of potential issues and what is necessary for such prosecutions to be conducted properly, providing the best assistance to the court.
165 The appellant's argument in response is that there was nothing complex about this matter that a ranger could not have dealt with. The difficulty with that proposition is that the appellant sought to add complexity to the matter by raising questions of law, including what might be described as pseudo‑legal issues under the Australian Constitution, in his letters to the respondent. He sought to pursue those arguments at the hearing before the magistrate, although no response was sought from the prosecutor and the arguments were ignored by the magistrate, except for a brief explanation of the deeming provision when the appellant sought an explanation after the magistrate had given his decision on the charge. The latter exchange should have illustrated to the appellant why it was not unreasonable for the respondent to have a lawyer prosecute in this case.
166 In my opinion, it was appropriate in this case for the respondent to use the services of a legal practitioner, which it was entitled to do under the CPA.
167 Mr Beckett appeared for the respondent in the Magistrates Court. He is a lawyer employed by the legal firm who acted on behalf of the respondent. He is, and was at all relevant times, a senior practitioner for the purposes of the Determination (that is, admitted for five years or more). In his affidavit he states that 5.6 hours of professional fees were charged in relation to the proceedings in the Magistrates Court. This resulted in total legal costs of $2,433.96 plus GST. The costs included disbursements, being a court filing fee of $91.90 and printing and copying costs of $45.50.
168 The respondent sought only $1,478.70. Although the magistrate was informed this was on the basis of four hours work and calculated in accordance the relevant costs scale, the number of hours was in fact rounded up. The figure of $1,478.9 was actually calculated on the basis of approximately 3.7 hours of work at $374 per hour (in accordance with the Determination) plus $91.90 for the court filing fee.
169 The actual work performed was said to have been divided into four separate categories, being (a) reviewing evidence and instructions, and preparing, serving and filing prosecution documents - 0.7 hours; (b) appearing at the first mention date - 0.8 hours; (c) preparing for trial - 2.1 hours; and (d) appearing for the trial date - 1.7 hours. This adds up to 5.3 hours. The 5.6 hours referred to earlier included a further 0.3 hours for subsequent advice, which could not be claimed under the costs scale.
170 Mr Beckett deposed that the reviewing of evidence and preparing prosecution documents involved:
171 Even though the appellant did not attend the first mention hearing at the Magistrates Court on 6 June 2014, having submitted an endorsed plea of not guilty, Mr Beckett did appear for the respondent on this matter, as well as on several other prosecutions, on that day. It is not necessary to examine the reasonableness of the amount charged to the respondent for that day (which was said to be for 0.8 hours), as it appears to me that the claim for that day has effectively been excluded from the 3.7 hours of work claimed after the appellant was convicted.
172 Mr Beckett deposed that the trial preparation included:
(i) a copy of the original infringement notice;
(ii) a certificate of vehicle ownership under the Road Traffic Act 1974 (WA);
(iii) further photographs to be taken by the issuing officer showing the area in which the vehicle was parked and the relevant signage; and
(iv) a copy of the transcript from the previous prosecution of the appellant on 28 May 2013;
173 Mr Beckett deposed that the respondent was charged legal fees for 1.7 hours for the appearance at the trial on 2 September 2014, but submitted that it would be reasonable to allow costs for 1.5 hours for the trial, since the hearing was listed for a 10.00 am start and concluded at approximately 11.30 am.
174 The respondent submitted that it would have been reasonable for the respondent to seek a rounded down figure of five hours for professional work plus disbursements, for a total of $1,961.90, calculated in accordance with the costs scale. This was intended to illustrate that the claim for $1,478.70 was conservative and a reflection of the respondent's recognition that the court will have regard to proportionality.
175 I have had regard to the documentary evidence attached to Mr Beckett's affidavit in support of a number of the items to which he has referred. There is no reason to doubt that the work was performed.
176 Mr Beckett has explained in his affidavit why it was necessary to carry out some of the work, having regard to the matters that the respondent was required to prove and the issues raised by the appellant. This addressed a number of queries I raised during the appeal hearing about the time allotted to various tasks, given that prosecutions of this kind should be routine for the respondent's legal representatives, and much of the documentation should be readily available, as it would be common to most, if not all, prosecutions for parking offences. I consider that the explanations given by Mr Beckett are reasonable.
177 A particular matter I queried at the appeal hearing was why a draft statement could not be prepared by the witness, in accordance with a pro‑forma precedent, rather than the statement being prepared for her. Mr Beckett explained at that time that it was necessary to determine, for the specific case, what matters would need to be included in the witness's evidence that are additional to the witness's observations. They may include a Road Traffic Act certificate, a Local Government Act certificate and copies of correspondence which do not directly relate to the officer, but to which the officer has access as part of the respondent's records. I am satisfied that the preparation of a draft statement was properly part of the professional work carried out by the respondent's legal representatives in this case.
178 The appellant made submissions at the appeal hearing about the reasonableness of the costs. In essence he submitted that much of the work described by Mr Beckett at the hearing, in particular the administrative tasks, could be done by a 'junior', and that at least some of the documentation would be standard for every parking offence prosecution. However, as he pointed out, the submission was made in circumstances in which there had been no breakdown provided of the costs.
179 The appellant said he would have considered a claim for $500 as 'fair and equitable'. That appears to be the figure he considered might have been claimed if 'in‑house representation' had been used. That is speculative, but it is noteworthy that the appellant's criterion for what was 'fair and equitable' was related back to his argument about the respondent's choice to 'employ a legal firm' to conduct the prosecution, rather than 'in‑house representation'. There is nothing before me to suggest such representation was available to the respondent. In any event, I have concluded the use of a lawyer was appropriate.
180 In my opinion, it was reasonable for the respondent's legal representatives to carry out the work described by Mr Beckett, for the reasons he has given. I have taken into account the issues raised by the appellant in his correspondence with the respondent, and the technical matters of proof required in a prosecution of this kind. The review of transcript from the previous prosecution added a layer to preparation that would not be present in an ordinary case of this kind, but it served a legitimate forensic purpose.
181 The lawyer the respondent has engaged to conduct its prosecutions is a senior practitioner for the purposes of the Determination (hence the hourly rate of $374). In my opinion, it is not unreasonable for the respondent to rely on a lawyer who has experience with such matters. While some tasks might have been carried out by someone other than a senior practitioner, there would have been a need for supervision and review by the lawyer of any such tasks. In any event, the number of hours claimed was not unreasonable as a reflection of the work required to be performed by the lawyer who had conduct of the prosecution.
182 Assessments of this kind rely on experience of litigation and knowledge of what is required for a legal practitioner to discharge properly their professional responsibilities. While I accept, as the respondent submitted, that it can be assumed the magistrate had such experience and knowledge, I have not taken that into account at this stage. It has been necessary for me to make my own assessment in the context of considering whether there has been a substantial miscarriage of justice.
183 Even if one allowed only one hour for the hearing on 2 September 2014, and excluded the appearance on the mention date, one would still arrive at 3.7 hours, if the time allocated to the initial review of evidence and preparation of court documents, and to the preparation for trial, are reasonable. In my opinion they are, for the reasons I have outlined. It follows that the time allocation of 3.7 hours and the costs calculated accordingly against the relevant costs scale were, in my opinion, fair and reasonable.
184 However, in order for me to be satisfied that there was no substantial miscarriage of justice, the costs ordered must have been proportionate, in the relevant sense.
185 The respondent does not take issue with the proposition that proportionality is a relevant factor in determining the costs that should be awarded. Indeed, the respondent's own approach in seeking less costs than the total legal costs incurred by it recognised that the court would regard the total fees to amount to a disproportionate financial burden on the appellant, having regard to the nature of the proceedings. As counsel for the respondent put it, it is understood by local governments and their legal representatives in parking prosecutions that the Magistrates Court will not allow 'the full quantum of costs incurred along the way'. However, the respondent submits that proportionality was sufficiently taken into account in the reduced claim, and the costs awarded were proportionate having regard to all the circumstances of this case.
186 The appellant argues that the costs were disproportionate to the criminality of the offence, and this is particularly evident from the fact they exceeded significantly the maximum penalty for the offence.
187 There is no evidence before me about the appellant's financial circumstances. I accept, on the basis of what he said to the magistrate (trial ts 22), that he was a single parent and a university student, and that he was 'struggling to pay' the costs ordered on the last occasion he was convicted of a parking offence. I accept, on that basis, that the financial burden on the appellant resulting from the fine and costs order in the present case was significant, although there is nothing to suggest he could not pay the costs over time.
188 While a parking offence would ordinarily be regarded as being at the lower end of the spectrum of criminal (or quasi‑criminal) offending, there may be circumstances in which such an offence can properly be regarded as involving a higher degree of criminality (or culpability) when weighing the relative burden of the penalty and costs that ought properly be imposed. Such circumstances might include the civic disruption caused by the offence; the impact on other persons who are prepared to pay for parking, but are denied the use of a bay by the offender's actions; or the offender's attitude towards civic obedience evinced by the offence.
189 In the present case, there was no evidence of any particular harm caused by the appellant's offence, and the magistrate's comments in imposing the modified penalty suggest he did not consider there was anything about the offence itself that would justify a greater penalty, although he did take into account the costs that were to be ordered. Nor is it possible to determine the circumstances of the present offence, other than that the vehicle was parked without a valid ticket, because the appellant did not admit being the driver, and he did not give evidence.
190 However, the previous conviction and the manner in which the appellant dealt with the infringement notice and conducted his defence on this occasion did point to an attitude of contempt towards the Local Law, steeped in misconceived views about the validity of that law and the deeming provision in particular.
191 In any event, the weighing of the financial burden against the nature and criminality of the offending is only one factor 'directly connected with the litigation' (Oshlack v Richmond River Council) relevant to proportionality. In the context of this case, the more significant question is whether the costs sought bear a reasonable relationship to the nature of the proceedings and the issues to be resolved.
192 While the appellant's first letter to the respondent in response to the infringement notice claimed that he was not the driver of the vehicle and he did not know who was, he challenged the respondent, in accordance with his misconceived view of the law, to prove that he was the driver. He raised constitutional arguments, which complicated what should have been a simple issue. He requested that the matter be dealt with by a court of competent jurisdiction if the respondent was not prepared to expunge the infringement notice.
193 The appellant did not suggest the vehicle had been stolen or otherwise used without his permission. His claimed lack of knowledge of who the driver was (which, by the second letter was expressed as a lack of recollection) needs to be considered against the absence of any explanation of (a) how he came to be in possession of the infringement notice, or (b) what enquiries he had made to determine who the driver was.
194 His correspondence was belligerent and intemperate. His concluding remark in his second letter (exhibit J) was:
Stop your unlawful bullying tactics and fuck off or take the matter to court you complete incompetent weasel.
195 All the respondent had done was to remind him of the effect of the infringement notice in light of the Local Law. The appellant's challenge came despite the warning he had received from the magistrate on the previous occasion, and the costs that had been ordered against him on that occasion: see [121] above. That order was not appealed by the appellant. He claimed in submissions that he was not aware of the right to appeal until after the limitation period expired. Nevertheless, he had been told that the costs ordered on that occasion were heavily discounted, and was on notice of the potential consequences if the matter proceeded to trial. The appellant had relied on misconceived constitutional arguments on that earlier occasion, and the magistrate had explained why they were rejected. If the appellant had sought legal advice in respect of the present matter, he would have been disabused of his erroneous views of the law on this occasion.
196 The respondent did take the matter to court, as it was entitled to do. The appellant chose not to give evidence. There was no admissible evidence before the magistrate that he was not the person who parked the car, or that he did not know or could not recall who had the car at that time. The claims to that effect in the letters were inadmissible hearsay. The purpose of tendering the letters, as I understand it, was to show that the appellant had not complied with s 9.13(6) of the LGA. The position at the end of the hearing was that the respondent had been put to proof of an offence for which the appellant offered no defence that had any merit.
197 Having regard to the circumstances of this case, it is difficult to avoid the conclusion that the appellant's conduct, in particular the issues he raised, affected the manner in which the case had to be prepared and conducted by the prosecution, and the costs incurred by the respondent in that process. His position is very different to that of the offender in Flatow v Mullins, for instance.
198 The purpose of the costs order is not to punish the appellant, either for the offence or the conduct of his defence, but his approach to the matter and the issues he raised go to the question of whether the costs bear a reasonable relationship to the actual proceedings. I have come to the conclusion that they do and that there has been no substantial miscarriage of justice.
Outcome if required to exercise discretion afresh
199 Had it been necessary for me to exercise the discretion afresh, in the event that the appeal had been allowed, I would have come to the same conclusion.
200 In those circumstances I would have sought and received the information contained in Mr Beckett's affidavit to determine what sum would be fair and reasonable to compensate the respondent for the costs it incurred in successfully prosecuting the charge. My opinion in respect of proportionality is not affected by the contents of the affidavit, except to the extent that what the appellant was told by the magistrate in the earlier prosecution, which is contained in the transcript attached to the affidavit, is relevant to that issue.
201 For the reasons I have outlined in considering the proviso, I am satisfied that the sum sought by the respondent is fair and reasonable. Proportionality is sufficiently taken into account by reducing the costs from the total actually incurred by the respondent for all the legal work that was done. There is no just reason, in my view, to reduce the costs further under s 67(2) CPA. Accordingly, I would have ordered that the appellant pay the respondent's costs in the Magistrates Court in the sum sought.
202 Although the appellant has made out ground 2, I am of the opinion that there has been no substantial miscarriage of justice, as the costs order was fair and reasonable in all the circumstances.
[1] Although it is not in evidence in the appeal, and an order was not sought for its production under s 40(1)(a) Criminal Appeals Act, the electronic Bench Book from the Magistrates Court, which is part of the court record forwarded to the Supreme Court by the Magistrates Court, records times relevant to the hearing. In this instance, it records that the hearing commenced at 10.47 am, and that the giving of the decision commenced at 11.16 am. As the duration of the hearing calculated by those times would accord approximately with the time that was estimated by Corboy J, which was accepted by the respondent at the appeal hearing, no further submissions were sought by me from the parties to address the specific record.
(1992) 174 CLR 178
(1990) 170 CLR 534
(2010) 41 WAR 105
(1906) 4 CLR 716
(1905) 2 CLR 405
(1998) 193 CLR 72
(2006) 31 WAR 291
(1998) 197 CLR 172
(1998) 194 CLR 355
(2008) 216 FLR 365
(1987) 10 NSWLR 247