Supreme Court of SA|1999-05-06|Before: Bleby J

GREY v CITY OF CHARLES STURT No. SCGRG-99-190 Judgment No. S224 [1999] SASC 224 (6 May 1999)

Judgment of the Honourable Justice Bleby (ex tempore)

Appeal substantially out of time - appellant given misleading advice by official of Magistrates' Court - appellant acted with diligence once correct advice received - extension of time granted. Appellant charged with summary offences - Magistrates' Court proceedings adjourned at appellant's request - order for costs of prosecution's attendance made against appellant at instance of magistrate - whether right of appeal lies against that order - power of Magistrates' Court to award costs in criminal division - Summary Procedure Act - whether power provided by s189(3), (4) or (5) - whether order for costs an interlocutory order - whether order for costs a "judgment" under s3(1) of the Magistrates Court Act - whether magistrate made proper inquiry as to extent of indemnity required by prosecution - whether reasonable opportunity given to appellant to call evidence and make representations on order for costs under s189(6) of the Summary Procedure Act.

Dog & Cat Management Act 1995 ;
Supreme Court Rules rr96B.02, 96C.02;
Summary Procedure Act 1921 s189;
Magistrates Court Act ss40, 42, referred to.
Police v Leonard (1995) 64 SASR 390;
Howie v Sutcliffe (1988) 49 SASR 225;
Schaftenaar v Samuels (1975) 11 SASR 266, applied.
O'Connell v Short (1985) 20 A Crim R 111, distinguished.

The appellant was charged on complaint dated 3 July 1998 with four offences against the Dog and Cat Management Act 1995. All the offences were alleged to have occurred on 13 January 1998. The summons issued in connection with the complaint required the appellant to appear at the Port Adelaide Magistrates' Court on 4 August 1998. On that day the matter was adjourned to 4 September 1998.

On 4 September 1998 the appellant did not appear, although he had attended the Port Adelaide Magistrates' Court Registry on 2 September 1998 seeking a date for the hearing not sooner than two months later because he was trying to obtain legal representation, and was requesting some legible copies of statements of witnesses from the complainant. The defendant's request was complied with by the Magistrate who heard the matter on 4 September and the matter was adjourned until 10 November 1998.

On 10 November 1998 the appellant appeared in the court unrepresented and pleaded not guilty to all four counts. He applied for a further adjournment because he was still trying to obtain legal advice. The adjournment was opposed by the complainant. The adjournment application was eventually granted by the Magistrate and the matter was adjourned until 3 February 1999.

The order made by the Magistrate was that the defendant was to pay the cost of the prosecution for that day's attendance fixed at $300. He was granted a period of 12 months in which to pay the costs.

The appellant was unrepresented before me. There was no affidavit filed as to the conduct of the proceedings in the Magistrates' Court. I heard oral evidence from the appellant, however, as to what occurred, and based on that evidence it appears that the first suggestion of any order for costs came from the Magistrate himself, and it was not initially sought by counsel for the complainant. It was the magistrate who suggested the figure of $300 which, apparently, received some sort of assent from the solicitor representing the complainant.

It appears that the appellant was offered the alternative of proceeding with the case that day or paying costs that the magistrate was going to fix at $300. The appellant was not given any specific invitation to make submissions as to whether or not an order for costs should be made. He had, of course, put before the Magistrate a number of reasons or explanations as to why he was not ready to proceed on that day.

The appellant now appeals against the order for costs that has been made against him. The Notice of Appeal is dated 25 March 1999 but according to the endorsement on the Notice of Appeal it was lodged in the Port Adelaide Magistrates' Court on 29 March 1999.

Rule 96C.02 of this Court requires an appeal to be instituted within 14 days of the making of the judgment under appeal. The appeal is, therefore, substantially out of time and can only proceed if this Court grants an extension of time.

Although a formal appearance has been filed, the respondent to the appeal indicated, in a letter from its solicitors dated 27 April addressed to the Registrar of the Court, that it did not wish to be heard in respect of the appeal and it would abide any orders made by the Court. I deal first with the extension of time in which to appeal.

The appellant has deposed in an affidavit sworn on 25 March 1999 that after the order was made he immediately attended the Port Adelaide Magistrates' Court Registry and was informed that there could be no appeal until the matter was heard and resolved in the Magistrates' Court. Having later, in February 1999, been advised to lodge an appeal immediately, he was informed that he was unable to do so without an extension of time and without payment of the fees or without obtaining an order from a Master of this Court waiving those fees. He pursued the latter course and obtained such an order on 25 March 1999, whereupon it appears that the Notice of Appeal was lodged within a very short time.

Due to the fact that the defendant in the Magistrates' Court and the appellant in this Court was unrepresented, he may have possibly been misled as to his rights by a Magistrates' Court official, and given that since then he appears to have proceeded with reasonable diligence to rectify the situation, I am prepared to make an order extending the time within which to appeal.

The next question that arises is whether there is a right of appeal at all. The power of the Magistrates' Court to award costs in its Criminal Division is governed by s189 of the Summary Procedure Act 1921. Sub-section (1) of that section confers on the Court a general discretion to award costs for or against a party to proceedings as the Court things fit. Sub-sections (5) and (6) read as follows:

"(5) If proceedings are unreasonably obstructed by a party or a witness, or proceedings are delayed through the failure of a party or a witness to appear before the Court when required to do so, the Court may make either or both of the following orders: (a) an order that the party or witness indemnify any party for costs resulting from the obstruction or delay; (b) an order that the party or witness pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for the time wasted in consequence of the obstruction or delay. (6) Before making an order under subsection (3), (4) or (5) the Court must inform the person against whom the order is proposed of the nature of the proposed order and allow that person a reasonable opportunity to give or call evidence and make representations on the matter."

The general discretion conferred by s189(1) will usually only be exercised at the conclusion of the proceedings and will need to take into account a number of matters pertinent to the exercise of the Court's discretion. Generally speaking, whilst the discretion is at large, a lesser amount will be awarded when the offences are at the lower end of the scale of offending: SA Police v Leonard (1995) 64 SASR 390. The costs may include extra costs incurred through no fault of either party which are treated as costs in the case: Howie v Sutcliffe (1988) 49 SASR 225. Such an award may well take into account delays in proper disposal of the trial attributable to one party, or other matters connected with the prosecution or defence of the case: Schaftenaar v Samuels (1975) 11 SASR 266 at 274-275. However, this order was not one that was made at the conclusion of the proceedings. It was made in the course of the proceedings. One infers that it was made because the appellant was not ready to proceed with the defence of his case on 10 November 1998. That is a matter which could well affect the exercise of the Court's discretion in the awarding of costs at the conclusion of the proceedings. However, this order was made to operate regardless of any order that might be made at the conclusion of the proceedings.

If an order for costs is to be made regardless of the outcome of the proceedings, and by reason of delay or obstruction to the proper processing of the case, in my opinion, the exercise of such a power is constrained by s189(5) of the Summary Procedure Act, and the procedures required by that sub-section and by s189(6) need to be observed. In that regard, I am conscious of a decision of Zelling J in O'Connell v Short (1985) 20 A Crim R 111 in which it was held that there was an inherent power in the Court to grant an order for costs on an adjournment. I distinguish that case and the circumstances of it both because of the nature of the case concerned and because of the legislative regime which was then substantially different. It did not contain the provisions now set forth in s189 of the Summary Procedure Act. It follows that an order for costs, in those circumstances, could only have been made if the proceedings were unreasonably obstructed by a party to the proceedings or were delayed through failure of a party to appear before the Court when required to do so.

It has been necessary to analyse the Court's power to award costs because it affects the appellant's right of appeal. Section 189(7) provides:

"A person against whom an order for costs is made under sub-ss (3), (4) or (5) has the same rights of appeal as a party to a civil action."

If an order for costs can only be justified under s189(5) the appeal provisions are, therefore, governed by s40 of the Magistrates Court Act. That relevantly reads:

"(1) A party to a civil action... may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action. (2) If the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought by leave of that Court, the right of appeal is limited accordingly, but in any other case an appeal lies as of right."

Rule 96B.02 of the Supreme Court Rules regulates appeals to be brought from the Magistrates' Court to this Court.

"(1) Unless a Magistrate has certified that the proposed appeal involves: (a) A point of law of difficulty or importance; or (b) A point of sufficient importance in the proceedings to warrant an interlocutory appeal being dealt with before final judgment in the action, any appeal against an interlocutory judgment under section 40 of the Act is subject to leave being obtained from the Supreme Court. (2) Such leave may be granted by a single Judge in chambers ex-parte or upon such notice to the other parties as the court may direct: (a) Upon a summons which is to be issued within 14 days of the making of the judgment complained of; ... (c) On an application taken out within 14 days of the making of the order complained of in any proceedings already before the Court involving the same parties and relating to the same matter of the proposed appeal."

The procedure governing the appellant's appeal, therefore, depends on whether this appeal is classed as an appeal against an interlocutory order or not. In my opinion, it is not. It is an order which operates regardless of the final outcome of the proceedings and imposes a financial liability on the appellant regardless of that outcome. That order may be enforced as any other order of the Magistrates' Court made in its Criminal Division. It is an order which, although made in the course of proceedings, was not interlocutory in the sense of assisting in the proper resolution of the proceedings. In my opinion, leave is not necessary and the appellant has an appeal as of right.

Should I be wrong in that, I would be prepared to grant leave to appeal and to the extent necessary I do so. Pursuant to r96B.02 sub-rule (5) I treat the hearing as the argument on appeal.

If I am wrong in concluding that the only power to make the order for costs was s189(5) of the Summary Procedure Act, the appeal is then governed by s42 of the Magistrates Court Act. That section relevantly provides:

"(1) A party to a criminal action may, subject to this section, and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising... from a preliminary examination). (1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings."

These of course were summary proceedings. For the reasons given, in my opinion, the order made was not an interlocutory judgment but is encompassed by the definition of judgment as defined in subsection 3(1) of the Act and the appeal lies under that section. I turn to the merits of the appeal.

I have already referred to the procedure which was adopted by the Magistrate. It appears that counsel for the complainant did not actively seek an order for costs. The Magistrate appears to have sought no information from counsel as to any costs or disbursements thrown away as a result of any adjournment that might be granted. He seems to have arrived at a figure without any information at all as to the costs involved. He was in no position to know whether or not the amount proposed was by way of indemnity for costs incurred by the complainant. The appellant was not invited to make any submissions as to the amount of any such costs. In those circumstances, it appears to me there was a failure of the Magistrate to comply with s189(5) in that there was no proper inquiry as to the extent of any indemnity required by the complainant. It also seems to me that there was a failure to comply with s189(6) in that whilst there was a suggestion or a threat made that the hearing would proceed unless an order for costs was made against the defendant and a figure was mentioned, there was not a reasonable opportunity given to the appellant to call evidence and make representations on the matter.

I am concerned that the Magistrate appears to have taken it upon himself to make an order for costs as some form of punishment for the delay rather than by way of compensation to the complainant for the expenses that were incurred. The amount of order would tend to support such an inference. If that was the motive or purpose then it was a wholly improper one, that in itself would be sufficient to require this Court's intervention on appeal.

The appeal must therefore be allowed and the order for costs will be quashed. The orders that I make are as follows:

1. Order for an extension of time in which to institute the appeal, such extension to be granted to 29 March 1999.

2. To the extent necessary I grant leave to appeal against the order of the Port Adelaide Magistrates' Court made on 10 November 1998.

4. Order of the Port Adelaide Magistrates' Court made on 10 November 1998 with respect to costs is quashed.

Cat Management Act 1995

Summary Procedure Act 1921

Cat Management Act 1995

Summary Procedure Act 1921

GREY v CITY OF CHARLES STURT No. SCGRG-99-190 Judgment No. S224 [1999] SASC 224

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Judgment (37 paragraphs)

GREY v CITY OF CHARLES STURT No. SCGRG-99-190 Judgment No. S224 [1999] SASC 224 (6 May 1999)

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Legislation Cited (4)

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