TAYLOR v POLICE No. SCCIV-02-519 [2002] SASC 317

Supreme Court of SA|2002-10-18|Before: Gray J

Judgment No. [2002] SASC 317

On Appeal from MAGISTRATES COURT, MR M E FREDERICK SM

The appellant Gary Arthur Ewin Taylor was charged with three counts of indecent behaviour. The offences allegedly occurred on two separate occasions. Two complaints were filed.

On 14 January 2002 Mr Taylor instructed a solicitor to act on his behalf. They conferred on a number of occasions. The solicitor then instructed another solicitor Osker Werner Linde to attend at the Whyalla Magistrates Court on 26 February 2002.

Mr Linde deposed to the details of his attendance at court:

"- In February 2002 I was a Legal Practitioner employed by the Aboriginal Legal Rights Movement Inc.

- I was instructed by Ms Tania M Collins to appear on behalf of her client Mr Gary Arthur Ewin Taylor in the Magistrates Court sitting at Whyalla on the 26th of February 2002 and seek a remand.

- On the 26th February 2002 I appeared before Mr Frederick SM a Magistrate sitting at the Magistrates Court at Whyalla in the State of South Australia.

- Although I cannot recall what I said word for word, I made submissions to the effect of:

'I appear on the instructions of Ms Collins for Mr Taylor, I have been instructed to seek a remand for the purpose of investigating possible section 269 issues.'

'That's the end of section 269 then. What a load of rubbish I've got a good mind to remand you straight into custody. You've made no effort to instruct your lawyer. What are you going to do about this carry offensive weapon charge?'[1]

'I will take that as a plea of guilty. The defendant is convicted without penalty and I order forfeiture of the weapon. On the other files I will impose immediate cost orders of $60.00 on each file and have the files noted that:

'Defendant has not made any attempt to instruct Counsel.'

You won't be remanded in custody today, but make sure you instruct your lawyer before your next court.

I felt that at no time was I given an opportunity to respond to the above comments made by Frederick SM a Magistrate and the orders he imposed."

The prosecutor recalled that Mr Taylor's case was called on and that his solicitor requested an adjournment. An adjournment was granted. The Crown did not apply for costs. The magistrate then made the costs orders.

A transcript of proceedings was not taken and no further remarks were recorded other than the following endorsement on the court files:

"[Defendant] to pay $60 costs within 21 days. Note

[Defendant] has still not instructed lawyer re matter.

[Defendant] to pay costs fixed in the sum of $60 within 21 days.

[In default imprisonment] Note [Defendant] has still not instructed lawyer re matter."

On 9 April 2002 the complaints came on for hearing before another magistrate. On this occasion a psychiatric investigation under section 269K of the Criminal Law Consolidation Act 1935 (SA) was ordered. Ms Collins who appeared on this occasion provided the following account:

"- I have been instructed by Mr Gary Arthur Ewin Taylor since early January this year in relation to his outstanding criminal matters.

- I recall first obtaining instructions prior to his first court appearance date on the 14/01/02 that he wished me to act.

- I appeared on [Mr Taylor's] instructions the first return date of the 14/01/02 and on this date received the allegations and relevant complaints.

- I had a number of phone conversations with [Mr Taylor] and he attended two appointments with me prior to the 26th February 2002."

Mr Taylor seeks to have the costs orders set aside.

Counsel for Mr Taylor sought an extension of time in which to appeal. It was submitted that the funds necessary to lodge the appeal were previously unavailable. The application was not contested. The delay was not substantial. No prejudice has been suffered by the Crown. An extension of time is granted.

Submissions were made as to this court's jurisdiction to hear an appeal from a costs order made by a magistrate. Counsel for Mr Taylor submitted that the orders could be characterised as final and were appealable as of right. Counsel for the Crown characterised the orders as interlocutory and submitted that leave to appeal should be sought.

Appeals from the Magistrates Court are governed by section 42 of the Magistrates Court Act 1991 (SA) which 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.

(a) in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence-to the Industrial Court; or

(b) in any other case-to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court)."

In Grey v City of Charles Sturt[2] the defendant appeared in court and sought an adjournment so that legal advice could be obtained. Bleby J said:

"...an award [of costs] 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 [that day]...this order was made to operate regardless of any order that might be made at the conclusion of the proceedings."

"In my opinion, it is not [interlocutory]. 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.'

Mullighan J took a different approach in Sullivan v Police[3]:

"Section 42 of the Magistrates Court Act 1991 provides for appeals by a party to a criminal action against any judgment in the criminal jurisdiction of the Court. Judgment means an order or decision and includes an interlocutory judgment or order: s3(1). However, s42(1)(a) of the Act provides that an appeal does not lie against an interlocutory judgment given in summary proceedings.

An order for costs made during the course of proceedings is not a judgment or order which finally disposes of the rights of the parties in the relevant sense. Nor is an order refusing to make an order for costs. All orders of the Magistrates Court are enforceable, including interlocutory orders. Mere enforceability does not convert an interlocutory order into a final order.

Where an order for costs is made, the party adversely affected has a remedy if the order is the consequence of an erroneous exercise of the discretion given by s189. That party may apply for leave to appeal which will, no doubt, be given if justified in the circumstances."

In McKelliff v Police[4] Perry J considered an appeal against a costs order made on the withdrawal of a complaint:

"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 where he referred to a number of authorities.[5]

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."[6]

The test to be applied in determining whether an order is final was discussed in Carr v Finance Corporation of Australia Ltd (No 1)[7]. Gibbs CJ observed:

"[does] the judgment or order appealed from, as made, finally determine the right of the parties.?"

Mason J formulated the question in the following terms:

"The issue then is whether the refusal of the appellant's application finally disposed of the action."

An application for an adjournment is an interlocutory order. Any associated costs order is also properly characterised as interlocutory. Neither order finally disposes of an action. This view accords with the court's analysis in Sullivan and McKelliff.

Counsel for Mr Taylor sought leave to appeal. Leave was not opposed. A point of substance arises and it appears that an injustice may have occurred. Leave is granted.

The power to award costs is found in section 189 of the Summary Procedure Act 1921 (SA). Section 189(1) confers on the court a general discretion to award costs for or against a party to proceedings as it thinks fit. Section 189(5) enables a court to award costs where a party has unreasonably obstructed the court or is found to have caused unreasonable delay.

Costs orders are intended to operate as an indemnity to the party who has been disadvantaged by an unreasonable obstruction or unreasonable delay. Costs should not be imposed as punishment. If the purpose was punitive then the magistrate erred. There is insufficient information to understand the magistrate's reasoning. As Bleby J observed in Grey[8]:

"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...If that was the motive or purpose then it was a wholly improper one..."

Section 189 of the Summary Procedure Act provides:

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

(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 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.

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

Counsel for Mr Taylor submitted that the magistrate appeared to have justified his orders on the basis that Mr Taylor had failed to instruct counsel. This was in substance what the magistrate said during the hearing. It was said that in the absence of unreasonable delay or obstruction the magistrate had no factual basis on which to make the orders. It was said that the orders were punitive in nature.

Counsel for the Crown submitted that the court's discretion to order costs was a wide one with which an appellate court should not lightly interfere. It was submitted that there was no evidence that the orders were made pursuant to section 189(5). There was also no evidence that the costs orders were punitive.

It appears that the magistrate based his decisions upon a perceived unreasonable obstruction. No orders for costs were sought by the prosecutor. The magistrate took the view that Mr Taylor was obstructing the proceedings by failing to instruct his solicitor in a timely manner. His ruling was made on an incorrect factual basis. Mr Taylor had instructed a solicitor who then arranged for another solicitor to appear on his behalf at the hearing. That solicitor appeared as instructed. There was no evidence that there had been an unreasonable obstruction or delay as envisaged by section 189(5). The application for an adjournment did not cause unreasonable delay. As earlier noted the magistrate observed that claims of mental incompetence were "a load of rubbish". However a different magistrate later ordered a psychiatric report pertaining to section 269.

The magistrate proceeded on an incorrect factual basis. Error has been demonstrated. There was no evidence of obstruction or unreasonable delay in this case. The appeal is allowed and the orders for costs are set aside.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

1 The reference to the offensive weapon charge related to another complaint.

2 Unreported [1999] SASC 224 at [13] and [19]

3 [2000] SASC 171 at [27] [31] and [32]

5 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; 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

[1] The reference to the offensive weapon charge related to another complaint.

[3] [2000] SASC 171 at [27] [31] and [32]

[5] 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; 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

Criminal Law Consolidation Act 1935(SA)s 269K

Magistrates Court Act 1991(SA)s 42

Summary Procedure Act 1921(SA)s 189, referred

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