MCKELLIFF v POLICE No. SCCIV-02-880 [2002] SASC 269

Supreme Court of SA|2002-08-07|Before: Perry J

Judgment No. [2002] SASC 269

On Appeal from MAGISTRATES COURT (MR C A JOHANSEN SM)

PERRY J. (ex tempore) This is an appeal against an order as to costs alone, more particularly as to the quantum of costs awarded in favour of the appellant, who was the defendant to a complaint heard in the Magistrates Court sitting at Christies Beach. The order in question was made upon the withdrawal of the complaint.

The appellant was charged on complaint that on 4 November 2000 at Old Noarlunga and other places he rode a motor cycle at speed dangerous to the public, rode at excess speed and failed to stop when requested by the police.

The matter in the court below has a somewhat chequered history in that the defendant finally appeared in court on 1 August 2001, after failing to appear on the five previous occasions upon which the matter had been called on for hearing.

It appears that there were two further adjournments while the appellant sought legal advice, and two trial dates were vacated while negotiations between the complainant and counsel for the appellant took place.

The appellant pleaded not guilty to all five counts, and when it eventually came on for trial on 24 June 2002 the trial ran for just over half a day before the complainant withdrew the complaint, following further discussions with counsel for the appellant.

The formal order which was then made by the Magistrate was in these terms:

"Evidence taken ... matter held for instructions. Complaint withdrawn. Defence application for costs. Costs allowed in the total amount of $1200 payable to Douglas Wardle Trust Account."

In his notice of appeal the appellant pleads one ground only, namely "That the award of costs was manifestly inadequate and failed regard to the principles laid down in Haslam v Emu Air".

On the hearing of the appeal, by consent, I received an affidavit of Douglas Wardle, who was counsel for the appellant in the court below, as to the course of the proceedings in that court, with particular reference to the application for costs.

It appears from that affidavit that the learned special magistrate was informed that Mr Wardle's total charges, he being both counsel and solicitor to the appellant, would be $5252.21.

The prosecutor opposed the making of an order for costs.

In the result, the learned magistrate awarded $400 for preparation and $800 for attendances at the trial, a total of $1200 costs.

In his outline of argument, the appellant contends that the order for costs was "paltry and demonstrably inadequate".

Before the appeal came on for hearing, I caused advice to be given to the parties to the appeal that I would be assisted by argument as to whether or not the appeal was competent. I have now received argument on that aspect of the matter, but not on the merits of the appeal. I did not hear the parties as to the merits in view of the fact that I have reached a concluded view as to whether or not the appeal was competent, that view being that the appeal is incompetent.

It is common ground between the parties that the order for costs was made pursuant to the general discretion as to costs conferred on the court below by s189(1) of the Summary Procedure Act 1921 which provides:

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

So far as rights of appeal are concerned, this being within the meaning of the Magistrates Court Act 1991 a criminal action, the rights of appeal are governed by s 42(1). That section provides for a general right of appeal to this Court against any judgment given in the action. Judgment is widely defined in s 3 of the same Act as meaning "a judgment, order or decision and includes an interlocutory judgment or order".

However, for present purposes, the amplitude of that definition is severely curtailed by the following sub-section, s 42(1a):

"An appeal does not, however, lie against an interlocutory judgment given in summary proceedings."

The question becomes whether or not the order made in this case which is under appeal, which is the order made as to costs, is an interlocutory judgment.

The definition of what constitutes an interlocutory judgment has occasioned some difficulty for courts over the years. Eventually, however, it has been settled that the proper test in deciding whether a judgment or an order is final or interlocutory is whether the judgment or order, as made, finally disposes of the rights of the parties.

That test was recognised as the approach to be adopted by Mullighan J in Sullivan v Police[1] where he referred to a number of authorities.[2]

Of course, in one sense, as the authorities have recognised, most orders finally dispose of a particular application which may be an interlocutory application or an application of another kind, but that circumstance does not mean that in such cases the order is other than interlocutory. What must be finally disposed of for an order to be other than interlocutory are the substantive rights of the parties.

Here, there was no order finally disposing of the rights of the parties in that sense, given that the complaint was withdrawn. The annotation made by the magistrate on the complaint simply recorded that the complaint was withdrawn. The oral application for costs which followed was a separate application and in my view, its allowance by the order under appeal does not constitute a judgment or order which finally disposes of the rights of the parties.

In that respect, I agree with the comments made by Mullighan J in Sullivan v Police in which he, in turn, declined to follow the decision of Bleby J in Grey v City of Charles Sturt.[3]

I admit that the matter is not without some difficulty, but I recognise that the situation may be different if an order had been made dismissing the complaint. If there was an order of dismissal, or for that matter an order in which a defendant is convicted, then an order for costs made in consequence of dismissal or conviction ought properly to be treated as part of the final order disposing of the proceedings. In those circumstances, I think it would be wrong and, indeed, quite unreal to treat the costs order as other than part of or an incidence of the order finally disposing of the rights of the parties. So that, in cases such as that, it may be that an appeal against that part of the final order disposing of the proceedings which focuses on the order for costs may be competent.

But that is not the case here. There is no final order disposing of the rights of the parties. The withdrawal of the complaint presumably operates in much the same way as a nolle prosequi, and provided that he was within time, the complainant could issue further proceedings.

Having regard to the conclusion which I have reached, it is unnecessary for me to address the question whether or not in fact the quantum of costs determined by the magistrate is manifestly inadequate, as is suggested by the appellant.

In my view, the appeal is incompetent and accordingly I order that it be struck out.

PERRY J: There is no order as to the costs of the appeal.

PERRY J. Pursuant to s 50(3)(a) of the Supreme Court Act 1935, I give leave to appeal to the Full Court.

[2000] SASC 171 at para 28 (unreported).

Carr and Anor v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 per Gibbs CJ at 248; Atco Industries (Aust) Pty Ltd v ANCLA Maritima SA and Ors (1984) 35 SASR 408 at 410; Keylink v Ergoline (1999) SASC 483 (unreported); Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549; Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 per Taylor J at 439-440 and R v Pavia (1993) 67 A Crim R 364

[1999] SASC 224 (unreported).

[1] [2000] SASC 171 at para 28 (unreported).

[2] Carr and Anor v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 per Gibbs CJ at 248; Atco Industries (Aust) Pty Ltd v ANCLA Maritima SA and Ors (1984) 35 SASR 408 at 410; Keylink v Ergoline (1999) SASC 483 (unreported); Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549; Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 per Taylor J at 439-440 and R v Pavia (1993) 67 A Crim R 364

[3] [1999] SASC 224 (unreported).

Summary Procedure Act 1921s 189(1)

Magistrates Court Act 1991s 42(1)

Supreme Court Act 1935

Summary Procedure Act 1921s 189(1)

Magistrates Court Act 1991s 42(1)

Supreme Court Act 1935

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