Loizides v Waikerie - Murray River Queen Pty Ltd [2007] SAIRC 30

2 I made an order that the defendant have its costs of the application.

3 A schedule was handed up to the Court detailing the costs sought by the defendant. The schedule was expressed to be confined to costs in relation to appearing at the hearing held on the 16 November 2006 and any affidavit material that was filed in relation to the hearing.

4 The complainant disputed the amount of costs claimed in the schedule.

5 The schedule made reference to the work involved in the preparation of three affidavits that were filed by the defendant.

6 The initial affidavit of John Charles Murray ("Murray") sworn on 2 November 2006 and filed in the Court on 3 November 2006 has a number of annexures to the affidavit.

7 A further affidavit sworn by Murray on 10 November 2006 was prepared and filed following the receipt of the complainant's outline of argument.

8 A third affidavit sworn by Murray on 15 November 2006 was prepared and filed following receipt of an affidavit sworn by Inspector Terry Ridley.

9 The affidavit material collectively provides the Court with a detailed overview of the negotiations and exchange of documentation leading up to the application, seeking the dismissal of the complaint and summons together with the defendant's response to documents filed by the complainant.

10 Apart from those costs related to the preparation and filing of the affidavit material, costs were sought for the attendance at the hearing of 16 November 2006 as well as the fees incurred for the appearance at the hearing by senior counsel.

Jurisdiction to award costs in summary proceedings

11 Section 189 of the S P Act underpins the Courts jurisdiction to award costs. Section 189(1) provides:-

"subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit".

12 Rule 51 of the Magistrates Court Rules 1992 provides:-

51.01 Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.

51.02 For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.

51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply."

13 Rule 51.00 appeared in the South Australian Government Gazette of 6 May 2004. In the same Gazette there appeared Schedule 1 - Magistrates Court Criminal Scale of Costs.

14 The authors of Summary Justice South Australia, Lawbook Co, at para 14.305 state:-

"When in 1998, contrary to earlier cases (such as Carter v Coombe (1989) 154 LSJS 371), Mullighan J, in Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454, declared that a Magistrates' discretion in awarding costs as between party and party was, as to the amount of costs, altogether unfettered, it became necessary to regulate the amount of costs that could be awarded as between party and party".

According to the authors this led to the introduction of Rule 51.00 and the Schedule 1 Scale of Costs.

15 The Full Court of the Supreme Court of South Australia considered the application of Rule 51.00 in Konieczka v Police.

16 In Konieczka Perry J, with whom Nyland J and Sulan J agreed, had various things to say about the criteria to be considered in deciding whether an award of costs in excess of those set out in Schedule 1 should be allowed. Perry J stated:-

22 "There is no doubt that in a proper case the jurisdiction as to costs extends to the making of a costs order on the basis of an indemnity or the award of solicitor and own client costs. It is also open to the court to award something between First Schedule costs and an indemnity. The discretion as to costs is at large, although it must not be exercised arbitrarily. Relevant factors must always be taken into account.

28 "... It seems to me that the First Schedule costs are intended to be the norm, and departure from them must be based on something which clearly distinguishes the case from the norm.

39 "Nothing I have said should be understood to detract from the general rule that a successful defendant is entitled to an order for costs in his or her favour. But an award of costs at a level beyond the party and party scale set by the rules should only be justified when there are exceptional circumstances. Emphatic protestations of innocence coupled with assertions that the complainant is lying, are commonplace. Standing alone, they would no ordinarily justify departure from the general rule.

40 "... The discretion should not be circumscribed by any attempt to lay down any rigid rules or principles. Justification for departure from the scale may arise from a large variety of circumstances, including the complexity of the case, the seriousness of the charge, whether it was reasonable to brief senior counsel, the conduct of the prosecution or of witnesses for the prosecution, and other matters. Likewise, the amount allowed will be influenced by similar factors".

17 Senior counsel was engaged by the defendant and a claim for senior counsel's appearance to present the argument on the 16 November 2006 has been made.

18 Was the engagement of senior counsel justified? Consideration of the issue of engagement of senior counsel was undertaken in Anderson v Glen Ewin & Staff Pty Ltd per Olsson J. His Honour after considering what members of the High Court had to say in Stanley v Phillips indicated that "the primary question which should have been posed was whether or not the difficulty or complexity of the case warranted the engagement of senior counsel" (page 46). See also Beasley v Marshall (No 3) and Andrewartha v Andrewartha (No 2).

19 The complaint and summons alleged four counts pursuant to s 19(1) of the Occupational Health, Safety and Welfare Act 1986. Each count has a maximum penalty of $100,000.

20 Senior counsel for the defendant on the 16 November 2006 endeavoured to persuade the Court that the complaint and summons should be dismissed because of defects of substance or form.

21 It is my view, that when considering the features of the matter before the Court, the degree of difficulty or complexity of the issues involved is such that the engagement of senior counsel was warranted. Having reached this view and having also considered the range of counsel fees I would award the amount claimed for senior counsels attendance namely the sum of $1,500.

22 The amounts claimed for the preparation of the affidavit material appear not to be confined to party and party costs and seem to include solicitor and client costs as well. I am not prepared to award the amount claimed for the affidavit material and all other attendances namely $8,932.25.

23 Using as a guide the Supreme Court Scale of Costs I would award a lump sum of $1,200 for all work done in preparation of the affidavit material.

24 I consider that an amount should be awarded for attendances including attendance at Court by instructing solicitor. I award a lump sum of $1,000.

25 The total amount of costs I consider appropriate in the exercise of my discretion under s 189 of the S P Act is $3,700.

26 I order that the complainant pay to the defendant costs of $3,700 within 28 days of today's date.