CITY OF PLAYFORD v DANIELLE MATHIE [2025] SASCA 119

Appellant: CITY OF PLAYFORD Counsel: MR MICHAEL WOON WITH MR JARRAD NAPIER - Solicitor: NORMAN WATERHOUSE LAWYERS Respondent: DANIELLE MATHIE Counsel: MR C KUMMEROW - Solicitor: STANLEY HILL ELKINS Hearing Date/s: 06/03/2024 File No/s: SCCRM-23-041422 A SUPREME COURT OF SOUTH AUSTRALIA (Court of 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. CITY OF PLAYFORD v MATHIE [2025] SASCA 119 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David) 21 October 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - BREACH OF STOPPING AND PARKING RESTRICTIONS This is an application for costs. Following a trial in the Magistrates Court, Ms Mathie (‘the respondent’) was convicted of an offence of ‘double parking’ contrary to r 189 of the Australian Road Rules (SA) (‘the ARR’) and s 174A(2) of the Road Traffic Act 1961 (SA) (‘the RTA’). The respondent appealed the decision of the Magistrate to a single Judge of the Supreme Court (‘the Judge’), who allowed the appeal, set aside the conviction and entered an acquittal. Before this Court, the City of Playford (‘the appellant’) challenged the Judge’s decision on two grounds. First, that the Judge erred by not finding that s 52(1)(a)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) applied to allow the commencement of proceedings within six months of the expiry of the expiation period specified in the expiation notice (Ground 1 – the time limitation ground). Secondly, that the Judge erred in not finding that the expiation notice described the general nature of the offence with which she was later charged under s 174A(2) of the RTA (Ground 2 – the expiation notice ground). The respondent filed a notice of alternative contention raising an argument that the relevant time limit was not provided by s 52(1)(a)(i) of the CPA. The respondent also filed a cross-appeal, alleging she had a defence under ARR r 165 because she was required to comply with another road rule (Ground 1), and that the Magistrate erred in finding beyond reasonable doubt it was safe for the respondent’s vehicle to overtake vehicles ahead (Ground 2). -- 1 of 6 -- On 8 May 2025, this Court dismissed Ground 1 of the appellant's appeal (the time limitation ground) and allowed Ground 2 (the expiation notice ground). The Court found that had the appellant been unsuccessful on Ground 2, the respondent’s alternative contention would have been upheld. As to the respondent’s cross-appeal, the Court dismissed Ground 1, allowed the cross-appeal, in part, on Ground 2 and ordered that the matter be remitted to the Magistrates Court for re-trial. The Magistrates Court charges have since been withdrawn. The parties now seek competing orders for costs. The respondent seeks an award of costs for the appeal (including the notice of alternative contention and cross-appeal) by way of a lump sum in the amount of $52,896.00 including GST, plus the costs of arguing this application in the amount of $4,400.00. The appellant seeks an order that the parties bear their own costs of the appeal and the costs argument. The appellant accepts that the costs order made by the Judge in favour of the respondent (which included an order that she be paid her costs in the Magistrates Court) should not be disturbed. In the alternative, the appellant seeks an order that the appellant pay 20 per cent of the respondent’s costs of the appeal and cross-appeal, being $10,580.00 Held, per the Court: 1. The appellant pay the respondent’s costs (including the notice of alternative contention and cross-appeal) in the sum of $10,580.00 inclusive of GST. 2. Each party bear their own costs as to the costs application. Australian Road Rules (SA) rr 132, 165, 189; Criminal Procedure Act 1921 (SA) s 52(1)(a)(i); Expiation of Offences Act 1996 (SA); Joint Criminal Rules 2022 (SA) r 191.3; Road Traffic Act 1961 (SA) s 174A(2), referred to. City of Playford v Mathie [2025] SASCA 45, discussed. A, DC v Prince Alfred College Inc (No 2) (2016) 139 SASR 396; Carter v Brine (No 2) [2016] SASC 36; Duffy v Google Inc (No 3) [2016] SASC 1; Jackson v Abram (No 2) [2016] SASCFC 36; Ruddock v Vardalis (No 2) (2001) 115 FCR 229, considered. -- 2 of 6 -- CITY OF PLAYFORD v MATHIE [2025] SASCA 119 Court of Appeal – Criminal: Kourakis CJ, Doyle and David JJA 1 THE COURT: This is an application by Ms Mathie (‘the respondent’) for an award of costs. By way of background, following a trial in the Magistrates Court, the respondent was convicted of an offence of ‘double parking' contrary to r 189 of the Australian Road Rules (SA) (‘the ARR’) and s 174A(2) of the Road Traffic Act 1961 (SA) (‘the RTA’). The respondent appealed the decision of the Magistrate to a single Judge of the Supreme Court (‘the Judge’), who allowed the appeal, set aside the conviction and entered an acquittal. 2 Before this Court, the City of Playford Council (‘the appellant’) challenged the Judge’s decision. The appellant advanced two grounds of appeal. First, that the Judge erred by not finding that s 52(1)(a)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) applied to allow the commencement of proceedings within six months of the expiry of the expiation period specified in the expiation notice (Ground 1 – the time limitation ground). Secondly, that the Judge erred in not finding that the expiation notice described the general nature of the offence with which she was later charged under s 174A(2) of the RTA, as required by the Expiation of Offences Act 1996 (SA) (‘the EOA’) (Ground 2 – the expiation notice ground). 3 The respondent filed a notice of alternative contention raising an argument that the relevant time limit was not provided by s 52(1)(a)(i) of the CPA. This contention only arose for consideration if the expiation notice ground was rejected. 4 The respondent also filed a cross-appeal alleging that she had a ‘defence’ under ARR r 165 because she was required to comply with another road rule (Ground 1), and that the Magistrate erred in finding beyond reasonable doubt it was safe for the respondent’s vehicle to overtake vehicles ahead (Ground 2). 5 On 8 May 2025, the Court of Appeal delivered its judgment.1 6 As to the appellant’s appeal, the Court dismissed the time limitation ground and allowed the expiation notice ground. The Court found that had the appellant been unsuccessful on the expiation notice ground, the respondent’s alternative contention would have been upheld. 7 As to the respondent’s cross-appeal, the Court dismissed Ground 1. In relation to Ground 2, while rejecting the respondent’s primary contention, the Court found that the Magistrate’s failure to explain to the respondent (then an unrepresented litigant) the operation of ARR rr 65 and 132, and the burden of proof in relation to those provisions, resulted in a miscarriage of justice. The Court 1 City of Playford v Mathie [2025] SASCA 45. -- 3 of 6 -- [2025] SASCA 119 The Court 2 allowed the cross-appeal, in part, and ordered the matter be remitted to the Magistrates Court for re-trial. 8 The Magistrates Court charges have since been withdrawn. 9 The respondent now seeks an award of costs for the appeal (including the notice of alternative contention and cross-appeal) by way of a lump sum in the amount of $52,896.00 including GST, plus the costs of arguing this application in the amount of $4,400.00. 10 The appellant resists the application for costs and seeks an order that the parties bear their own costs of the appeal and the costs argument. The appellant accepts that the costs orders made by the Judge in favour of the respondent (which included an order that the respondent be paid her costs in the Magistrates Court) should not be disturbed. 11 In the alternative, the appellant submits that a ‘fair and just’ award would be to order that the appellant pay 20 per cent of the respondent’s costs of the appeal and cross-appeal, being $10,580.00. The applicable principles 12 This Court has a broad discretion to award costs pursuant to rule 191.3 of the Joint Criminal Rules 2022 (SA). The general rule is that costs should ordinarily follow the event and be awarded to the successful party. 13 In this matter, each party had some success on appeal. 14 The principles relating to mixed success are as stated by the Full Court in A, DC v Prince Alfred College Inc (No 2):2 The principles governing the exercise of the costs discretion are well established. The Court exercises a judicial discretion with respect to costs in which the general rule is that costs ordinarily follow the event unless there are special circumstances justifying another order. In more recent times, courts more readily modify the general rule recognising that the interests of justice sometimes require a reduction in the costs that would otherwise have been awarded to a successful party when that party has failed on particular disputed questions of fact or law. In Ruddock v Vardalis (No 2),3 Black CJ and French J summarised the principles are follows: Within the general discretion of the courts to award costs it is accepted by decisions in both Australia and English jurisdictions that: • Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. 2 (2016) 139 SASR 396 at [5]-[6] (Kourakis CJ, Gray and Peek JJ). See also Jackson v Abram (No 2) [2016] SASCFC 36 at [3] (Peek, Stanley and Lovell JJ); Carter v Brine (No 2) [2016] SASC 36 at [8]- [14] (Blue J); Duffy v Google Inc (No 3) [2016] SASC 1 at [8] (Blue J). 3 (2001) 115 FCR 229. -- 4 of 6 -- [2025] SASCA 119 The Court 3 • Where a litigant has succeeded only upon a portion of the claim, these circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. • A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties’ costs of them. In this case, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. The modification of the ordinary rule to reflect the way in which particular issues in the litigation are determined is a response to “those cases in which issues are raised which unduly extend the time and expense of litigation”. (citations omitted) 15 However, as the Full Court recognised in A, DC v Prince Alfred College Inc (No 2),4 there can be no precision in the application of the ordinary rule and its qualification. Consideration 16 In the present case, neither party achieved total success on appeal. The appellant was successful on the expiation notice ground, which meant that this Court was not required to consider the time limitation ground or the respondent’s alternative contention (although, the Court proceeded to do so given the relative importance of the issues they raised). The expiation notice ground was, however, the focus of the appeal hearing and the only ground on which the Attorney General intervened. 17 This Court allowed the respondent’s cross-appeal, but only in part, on the basis there had been a miscarriage of justice by reason of the failure of the Magistrate to explain to the respondent (an unrepresented litigant) the operation of ARR rr 165 and 132. This was not the focus of the respondent’s submissions. The cross-appeal was allowed, but the Court remitted the matter for re-trial rather than restoring the respondent’s acquittal. 18 While the appellant succeeded on the expiation notice ground, which meant that the Court was not required to (but did) consider the time limitation ground or the alternative contention, we consider that it is still appropriate for the Court to make an award of costs to the respondent to reflect not only her partial success on the appeal (and notice of alternative contention) but also on the cross-appeal. It is true that the basis upon which the Court allowed the cross-appeal was contrary to the main premise of the respondent’s submissions, but the fact remains that the Court found there was a miscarriage of justice. 19 We have taken into account that the appellant does not seek a costs order in its favour, nor does the appellant seek to disturb the costs order of the Judge. In 4 [2016] SASCFC 36. -- 5 of 6 -- [2025] SASCA 119 The Court 4 addition, the appellant has withdrawn the charges in the Magistrates Court so that the respondent is no longer exposed to the costs of another criminal trial. 20 Balancing those considerations, we order that the appellant pay 20 per cent of the respondent’s costs of the appeal (including the notice of alternative contention and cross-appeal) being $10,580.00 inclusive of GST. We would also order that each party bear their own costs as to the costs application. Orders 1. The appellant pay the respondent’s costs in the sum of $10,580.00 inclusive of GST. 2. Each party bear their own costs as to the costs application. -- 6 of 6 --