CB v HB [2026] SASC 87

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE KOEHN) MCCRM-24-043310 Appellant: CB In Person Counsel: MR W MICKAN - Solicitor: CALDICOTT & ISAACS Respondent: HB In Person Counsel: MR M CRAMPTON - Solicitor: CARLIN LAWYERS Hearing Date/s: 19/02/2026 File No/s: SCCRM-25-042524 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. CB v HB [2026] SASC 87 Judgment of the Honourable Justice Gray (ex tempore) 19 February 2026 CRIMINAL LAW - PROCEDURE - COSTS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - OTHER MATTERS The respondent sought a private intervention order against the appellant, her husband, pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The parties had separated, the respondent having moved out of the matrimonial home on 1 April 2024 following an altercation, and a binding financial agreement settling the matrimonial assets was executed on 21 June 2024. An interim intervention order was made and, on 10 June 2025, was confirmed by agreement on the basis that the appellant made no admissions as to the conduct underpinning the application. Following confirmation of the intervention order, the respondent applied for costs. On 16 September 2025, the learned Magistrate found that the application for the intervention order had been successful and that the respondent had been put to the expense of engaging a lawyer to pursue it, and ordered the appellant to pay the respondent’s costs fixed in the sum of $2,794, assessed on the Lower Courts Criminal Scale of Costs. The appellant appeals against the costs order on the ground that the Magistrate erred in awarding costs and that the decision was unreasonable or plainly unjust. The appellant contends that, the final intervention order having been made by consent pursuant to s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), the Magistrate erred in failing to have regard to that matter and in characterising the respondent as having been successful; that the Magistrate erred in having regard to the holding of a pre-trial conference and the fixing of a trial date; that the respondent’s success was only partial, as a number of findings sought against the appellant were not made; and that these matters, considered together, are indicative of House v The King error. Held, dismissing the appeal: -- 1 of 7 -- 1. The reasoning of the Magistrate was orthodox. There was no error in the Magistrate referring to the applicant as having been successful in the application for the intervention order. The final intervention order having been made by consent pursuant to s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) did not render that characterisation a factual error. [12], [17] 2. The appellant has not demonstrated that the order was affected by error of the kind identified in House v The King, or that the result was unreasonable or plainly unjust. [17]–[20] Criminal Procedure Act 1921 (SA) s 189; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6 and 23(3); Magistrates Court Act 1991 (SA) s 42(1), referred to. House v The King (1936) 55 CLR 499, applied. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Norbis v Norbis (1986) 161 CLR 513; Uzzell v Police [2017] SASC 143, considered. -- 2 of 7 -- CB v HB [2026] SASC 87 Criminal: Magistrates Appeal 1 GRAY J (ex tempore): This matter concerns an appeal against a decision dated 23 September 2025 of a magistrate ordering costs against the appellant, CB, in the sum of $2,794.00 to the respondent, HB. The appellant complains that:1 The Magistrate erred in awarding the respondent costs pursuant to s 189 of the Criminal Procedure Act 1921, in that the decision was unreasonable or plainly unjust. 2 The costs order arose as a result of an application by the respondent for issuance of a private intervention order against the appellant pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’). An interim intervention order was made in the first instance, and that order was confirmed on 10 June 2025 by agreement on the basis that the appellant made no admissions as to the conduct underpinning the application. The respondent made an application for costs following confirmation of the intervention order, and the decision on that application is the subject of this appeal. Background 3 By originating application filed 29 October 2024, the respondent sought an intervention order against the appellant and swore an affidavit in support. The appellant and respondent are husband and wife but had separated. The respondent moved out of the matrimonial home on 1 April 2024, and a binding financial agreement was executed on 21 June 2024 settling the matrimonial assets. The appellant and respondent share two children aged under 18 years. 4 The appeal concerns costs only and not the substance of the application for an intervention order, which was ultimately resolved by consent. It is appropriate to say no more than that the relationship broke down between the parties, and the respondent felt it unsafe to remain in that relationship following an altercation on 1 April 2024. 5 This matter concerns an appeal under s 42(1) of the Magistrates Court Act 1991 (SA) and is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). It is to be conducted by way of rehearing, with the Court permitted to draw its own inferences from the evidence adduced in the proceeding at first instance.2 1 [CB], ‘Notice of Appeal and Appeal Grounds’, SCCRM-25-042524, 16 October 2025 (FDN 1 and 2). 2 Joint Criminal Rules 2022 (SA) r 191.1(1)(a)-(b). -- 3 of 7 -- [2026] SASC 87 Gray J 2 6 The appeal is against a decision as to costs, which can be characterised as an appeal as of right.3 That said, general principles applicable to appeals against costs apply. 7 The judgment concerning costs is an exercise of judicial discretion. Appellate intervention will generally only be warranted if the decision at first instance was affected by an erroneous view of the law or the facts, by a failure to take relevant considerations into account or by the taking of irrelevant considerations into account, or if the result is plainly unreasonable or unjust.4 8 The appeal is against a discretionary costs order made by Magistrate Koehn on 23 September 2025 pursuant to s 189 of the Criminal Procedure Act 1921 (‘CPA’).5 The costs order followed the confirmation of an intervention order under the Act made on 10 June 2025. The sole ground of appeal alleges that the Magistrate erred in awarding costs and that the decision was “unreasonable or plainly unjust”. 9 The appellant contends that the learned Magistrate misdirected himself as to the scope of s 189 of the CPA. It is said that the learned Magistrate took into account irrelevant matters or failed to take account of relevant matters as specified below. The appellant contends that the result was so unreasonable that error should be inferred, and that such error would justify appellate intervention applying House v The King.6 10 The appellant submits as follows in relation to why the reason to award costs was unjust or plainly unreasonable: a. Firstly, the appellant contends that the final intervention order was made by consent pursuant to s 23(3). The appellant contends that the learned Magistrate made a factual error in failing to have regard to the order being made by consent. That is said to lead to a factual error as there was an incorrect characterisation of the outcome of the proceedings. The appellant contends that the learned Magistrate incorrectly characterised the outcome of the proceedings as the respondent being successful when the appellant contends that he was successful in resisting certain findings being made. b. Secondly, the appellant contends that there was error in the reference to the matter being listed for a pre-trial conference being conducted and the matter being listed for trial and this is said to be a matter as going 3 Uzzell v Police (SA) [2017] SASC 143 at [21] (Kelly J). The confirmation of the order in these proceedings can be properly construed as a conclusion to proceedings in the usual course and the issues which arise in Uzzell case as to whether a conclusion has been reached do not arise. 4 Maiden v Maiden [1909] HCA 16; (1909) 7 CLR 727 at 739 (Griffith CJ); Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 534 (Aickin J). 5 See also Uniform Special Statutory Rules 2022 (SA) r 94.1. 6 [1936] HCA 40; (1936) 55 CLR 499. -- 4 of 7 -- [2026] SASC 87 Gray J 3 to why the decision of the learned Magistrate was unreasonable or plainly unjust. c. Thirdly, the appellant contends that the respondent’s success was only partial as a number of findings sought to be made against the appellant were not made. d. Fourthly, the appellant contends that the evident legislative purpose of s 23(3) is to bring about the resolution of this type of proceeding and it was unreasonable and unjust for a continuing order to be made in this context. e. Finally, the appellant contends that these four matters considered together are indicative of House v The King7 error. 11 The respondent contends that she had incurred costs in preparing and progressing the matter through multiple attendances, including pre-trial and status conferences and preparation for trial. The Magistrate concluded that as the application for the intervention order was successful and the respondent had been put to expense, costs were appropriate. The respondent contends that the approach adopted by the learned Magistrate was orthodox and no error has been demonstrated. 12 Although I refer in these ex tempore reasons to a summary of the parties’ respective submissions, I have had regard to the detail of the submissions as advanced in the written submissions and before me in Court today. Consideration 13 I commence a consideration of this matter by reference to the reasons of the learned Magistrate. 14 The learned Magistrate notes that the applicant sought costs on an indemnity basis in the amount of $3,949 plus GST, and provided the Court with an itemised schedule showing how that figure was reached. The learned Magistrate then set out the respective parties’ positions. The learned Magistrate then set out the procedural history of the matter as recorded in the hearing outcome of the Magistrates Court. The learned Magistrate’s reasons then provide as follows:8 I do not consider that the respondent caused undue delay in relation to the matter and I do not consider there was a failure to comply with Rule 84.1. Nevertheless, as the application for confirmation of the intervention order was ultimately successful, the applicant is entitled to costs, as she was put to the expense of engaging a lawyer to pursue the application, and there was a pre-trial conference and a trial date fixed. I do not consider that indemnity costs are appropriate. 7 [1936] HCA 40; (1936) 55 CLR 499. 8 Reasons of Magistrate Koehn dated 23 September 2025 at [11]–[13]; [CB], ‘Appeal Book’, SCCRM- 25-042524, 19 February 2026 (FDN 5) at 10-12. -- 5 of 7 -- [2026] SASC 87 Gray J 4 I understand that the schedule of costs provided to the court by the applicant was based on the civil scale of costs. In my view the appropriate scale is the Lower Courts Criminal Scale of Costs in Schedule 1 of the Joint Criminal Rules 2022. In my view the applicant is entitled to costs in respect of items 1, 3 (and there are three lots applicable there for attendances on 11 February 2025, 22 April 2025 and 3 June 2025), and 4 (for the attendance on 10 June 2025) and item 5 (for the attendance on 16 September 2025 when the question of costs was argued). This comes to a total of $2540. In addition, I add GST, making a grand total of $2794. I order that the respondent pay costs to the applicant in that amount. 15 In my view, the effect of the learned Magistrate’s reasons was to find that the application for an intervention order was successful and that, as the respondent had been put to the expense of engaging a lawyer to pursue the application and there was a pre-trial conference and a trial date fixed, the respondent was entitled to costs. 16 The reasoning of the learned Magistrate was orthodox. 17 In relation to the specific arguments advanced by the appellant:9 a. First, in my view, there was no error in the learned Magistrate referring to the respondent being successful in the application for the intervention order or in the manner in which the learned Magistrate had regard to the final intervention order being made by consent pursuant to s 23(3). There is no factual error in that statement. The respondent had sought the intervention order. The final order was made. b. Secondly, there was no error in the reference to the pre-trial conference being held and a trial date fixed. It was a relevant consideration to the question of costs for the learned Magistrate to consider the relevant stage of the proceedings. c. Thirdly, the appellant complains that there was no finding in respect of the matters referred to in s 6 of the Act, such that the respondent’s success in the matter was properly characterised as mixed and that each party should bear their own costs. This is a complaint about the outcome of the exercise of the costs discretion and does not provide a basis for appellate intervention. This complaint and the outcome of the application for costs does not indicate that the order was unreasonable or plainly unjust. d. Fourthly, the further complaint advanced by the appellant states that the general position in respect of costs of a person in the position of the appellant, is that there be no order for costs. That is, the appellant complains that because the final intervention order was made by 9 See further [CB], ‘Appellant’s Written Submissions’, SCCRM-25-042524, 19 February 2026 (FDN 8) at [20]. -- 6 of 7 -- [2026] SASC 87 Gray J 5 consent, there should have been no order as to costs. This complaint does not, in my view, demonstrate error. Rather, the complaint is one of disagreement with the evaluative outcome. 18 I have also considered the totality of these matters as advanced by the appellant. I find that the appellant has not demonstrated that the decision of the learned Magistrate was affected by an erroneous view of the law or the facts, by a failure to take relevant considerations into account or by the taking of irrelevant considerations into account. In my view, considering all those matters together, the appellant has not demonstrated that the outcome was plainly unjust or unreasonable. Conclusion and orders 19 The orders of this Court will be: 1. The appeal is dismissed. 20 I will hear the parties as to any further orders. -- 7 of 7 --