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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Logan City Council v Brookes (No 2)  QDC 221
STEPHEN BALL ON BEHALF OF LOGAN CITY COUNCIL
THOMAS JOSEPH BROOKES
BD No 3519 of 2018
Appeal – Further Order
Application for Costs
Magistrates Court at Beenleigh – Date of Delivery of Decision: 29 August 2018
9 September 2020
Heard on the papers
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – SENTENCE – where the respondent has been found guilty of seven counts of breaching s 578 of the Sustainable Planning Act 2009 – where the relevant maximum penalty is 1665 units – where the appellant submits that a penalty of $7,000 to $14,000 should be imposed – where the respondent submits that no penalty should be imposed – whether and in what amount a penalty should be imposed
CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the appellant appealed a decision of the Magistrates Court which dismissed seven complaints of carrying out assessable development without a permit – where the appellant was successful on appeal in this court – where the appellant makes an application for costs for the costs of the Magistrates Court trial – whether there are special circumstances which would warrant the appellant not being entitled to receiving costs
CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the appellant appealed a decision of the Magistrates Court which dismissed seven complaints of carrying out assessable development without a permit – where the appellant was successful on appeal to this court – where the appellant makes an application for costs for the costs of the appeal to this court – where the appellant submits that pursuant to s 232A(2) of the Justices Act 1886 the appellant should be awarded costs in an amount in excess of the scale – whether the appeal was attended by special difficulty, complexity or importance
Justices Act 1886, s 157, s 158, s 225, s 226, s 232A
Planning Act 2016, s 176
Sustainable Planning Act 2009, s 578
Baker v Smith (No 2)  QDC 242, applied.
Cullinan v McCahon  QDC 120, applied.
Lucy v OCC Holdings P/L & Ors (No 2)  QDC 169, distinguished.
Latoudis v Casey (1990) 170 CLR 534, cited.
Schaftenaar v Samuels (1975) 11 SASR 266, followed.
Smith v Ash  2 Qd R 175, cited.
K Wylie for the appellant
MinterEllison–Gold Coast for the appellant
- On 29 August 2018, the Magistrates Court at Beenleigh dismissed seven complaints against the respondent of carrying out assessable development without a permit arising out of the placement by the respondent of seven shipping containers on the respondent’s property.
- The appellant filed an appeal of that decision in this court and on 10 March 2020, I found in favour of the appellant in respect of the appeal (“decision”) and found the respondent guilty of the seven offences. At the time of delivery of judgment, I directed that the parties provide written submissions as to penalty and costs.
- On 23 March 2020, I received written submissions from the appellant which sought the following:
- (a)A fine of $1,000 to $2,000 for each shipping container, there being seven shipping containers in total.
- (b)An enforcement order requiring the respondent to remove all shipping containers from the subject property within 28 days of the date of the decision.
- (c)Costs be awarded to the appellant of both the Magistrates Court trial and the appeal to this court.
- The appellant did not contend that convictions should be recorded against the respondent.
- On 24 March 2020, the appellant provided an application for costs together with a supporting affidavit seeking:
- “With respect to the costs of the proceeding below in the Brisbane Magistrates Court, an order, pursuant to ss. 225(1), 157 and 158B(1) of the Justices Act 1886, that the Respondent / Defendant pay the Appellant’s / Complainant’s costs in the amount of $2,971.15; and
- With respect to the costs of the appeal in the Brisbane District Court (including the application for leave to adduce fresh evidence):
- (a)An order pursuant to ss.226 and 232A(2) of the Justices Act 1886, that the Respondent / Defendant pay the Appellant’s / Complainant’s costs for the in the amount of $38,500; further, or in the alternative
- (b)An order, pursuant to ss.226 and 232A(1) of the Justices Act 1886, that the Respondent / Defendant pay the Appellant’s / Complainant’s costs in the amount of $6,071.47.”
- On 21 April 2020, I received written submissions from the appellant in support of its application for costs.
- On 8 June 2020, after a number of extensions, the respondent filed a document titled “Brief Submissions to Set Aside Judgment, and Submissions regarding any penalty and costs”. Annexed to this document was what appeared to be an appeal of my decision, although not on the correct form. I did not consider the annexure for the purposes of this judgment.
- On 22 June 2020, the appellant provided written submissions in reply.
- After some insistence from the respondent, I allowed the respondent to provide brief submissions in response to the appellant’s written submissions in reply. These were provided on 29 June 2020. An amended version of the respondent’s previous submissions was also provided.
- The appellant elected not to provide an amended reply to the amended submissions.
Submissions on Penalty
- The appellant submitted, inter alia, that a fine of $1,000 to $2,000 per shipping container or $7,000 to $14,000 in total is appropriate having regard to the following factors:
- (a)The offending is reversible (i.e. the containers can be removed) as opposed to permanent offences such as unlawful vegetation clearing or demolition of heritage dwellings.
- (b)The expense that will be incurred by the respondent in having to remove the shipping containers.
- (c)The cumulative impact the seven separate offences will have on the respondent.
- (d)The failure of the respondent to remove the containers despite receiving enforcement notices on 2 May 2017 and 30 August 2017.
- (e)The failure of the respondent to demonstrate remorse.
- (f)The appellant was put to significant expense to proceed with the prosecution in the Magistrates Court and the appeal in this court.
- (g)Offences of this type are difficult and expensive to prosecute and the sentence needs to send a message to the community that this conduct is not condoned.
- (h)General deterrence.
- The appellant submitted that an enforcement order is necessary in the following circumstances where:
- (a)the appellant is not satisfied that the penalty alone would prevent the undertaking of assessable development, without the suitability of that development being assessed and considered throughout the development assessment process, as well as the application of suitable conditions to any development permit to properly control it.
- (b)If an enforcement order was not made and the respondent chose not to remove the shipping containers, it would be difficult to commence proceedings against the respondent for his failure due to:
- i. the offence being a once and for all offence; and
- ii. it being doubtful that fresh Magistrates court proceedings could be commenced for the same offence (apart from the fact that any such complaint would be out of time).
- The appellant further submitted that a singular order should be made requiring the removal of all shipping containers from the site rather than prescribing particular orders to particular containers to avoid difficulties arising in enforcing such orders if required.
- Unfortunately, I found the respondent’s submissions repetitive and largely focused on why I should set aside my decision which is irrelevant to the matters I need to determine for the purposes of this judgment. I identified the following factors on which the respondent relied in his submission that no penalty should be imposed:
- (a)There was no intent on the part of the respondent to break any laws by placing the shipping containers on the property.
- (b)The appellant gave both verbal and written consent for the containers to be located on the property.
- (c)The written consent was obtained prior to the appellant commencing legal action in the lower court.
- (d)The appellant deliberately blocked the respondent from obtaining finance to complete the development on the subject property which, if completed, would have meant the containers could have been removed at an earlier date.
- (e)For any penalty and costs to be imposed the appellant would have to prove that the respondent had wilful intent to breach the laws/break the rules etc and the evidence discloses the respondent did no such thing.
- (f)The summons and charges were out of time.
Submissions on Costs
- The appellant submitted that a costs order in respect of the Magistrates Court proceedings should be made in favour of the appellant in the order of $2,971.15 based on the following:
- (a)Pursuant to s 225(1) and s 225(3) of the Justices Act 1886, this court in its appellate jurisdiction has power to make an order as to costs in the proceeding below.
- (b)The general position is that a court would ordinarily make an order that the unsuccessful party should pay costs to the successful party.
- (c)There are no special circumstances to warrant the appellant not being properly indemnified such that the ordinary course that costs should follow the event should be applied in this instance.
- (d)A costs order must be fixed (cf civil proceedings where an order can be made for costs to be assessed).
- (e)The amount sought is in accordance with scale costs pursuant to s 158B(1) of the Justices Act 1886 and schedule 1 of the Justices Regulation 2014 in effect when the learned Magistrate handed down his reasons.
- The appellant submitted that a costs order in respect of the appeal to this court should be made in favour of the appellant in the order of $38,500 based on the following:
- (a)Pursuant to s 226 of the Justices Act 1886, this court can make such order as to costs as the judge may think just.
- (b)There are no special circumstances that should preclude the court from making a costs order in favour of the appellant.
- (c)Pursuant to s 232A of the Justices Act 1886, the appeal warrants a higher amount of costs having regard to the special difficulty, complexity or importance of the appeal (the appellant referred to four matters in support of this submission and I will address these in detail later).
- (d)The amount sought reflects an acknowledgement of the policy of the Justices Act 1886 to ensure that any indemnification by way of a costs should not, ordinarily, amount to a complete indemnification in the strict sense; and
- (e)The appropriateness of providing at least some meaningful indemnity (in this instance, less than 50%) towards costs reasonably incurred by the appellant.
- The respondent in submitting that no costs orders should be made largely relied upon alleged “malicious, confrontational, unreasonable and unconscionable behaviour” on the part of the appellant and its legal representatives. These submissions are irrelevant in the current proceedings where I have already allowed the appeal and the only outstanding matters to be dealt with are what penalty should be imposed and whether any costs orders should be made. I do not intend to entertain the respondent’s allegations in this decision. I have identified the respondent’s submission that for any costs order to be imposed “the appellant would have to prove that the respondent had wilful intent to breach the laws/break the rules etc and the evidence discloses the respondent did no such thing.”
Relevant Law on Penalty
- The offences subject of the appeal were in breach of s 578 of the Sustainable Planning Act 2009 (“SPA”) which relevantly provides:
“578 Carrying out assessable development without permit
- (1)A person must not carry out assessable development unless there is an effective development permit for the development.
Maximum penalty – 1665 penalty units.”
- The prescribed value of a penalty unit when the offence occurred was $121.90 being $202,963 per offence or a total maximum penalty for all seven offences of $1,420,741.
- I am required to take into account, as far is as practicable, the financial circumstances of the appellant and the “nature of the burden that payment of the fine will be on the offender.” The only submission relevant to this issue that I can identify is in the respondent’s submissions wherein the respondent submits that “I have exhausted all my spare funds ($28,000 to date on this matter)”.
- The parties did not identify any relevant cases to assist with the appropriate range of penalty.
- I share the view of the appellant that the offending is in the lower end of offending captured by s 578 due to, predominately, its reversibility and the cumulative impact the seven separate sentences will have on the respondent. Balancing these factors with the respondent’s lack of remorse, his disregard for the enforcement notices issued by the appellant, the expense the appellant has been put to in prosecuting the respondent as well as general deterrence, I find that a penalty in the order of $1,500 per shipping container or, $10,500 in total, is appropriate. I note that this amount is approximately one percent of the maximum penalty that can be imposed under the SPA.
Relevant Law on Enforcement Orders
- Enforcement orders can be made for proceedings of this type pursuant to s 176 of the Planning Act 2016 which relevantly provides:
“176 Enforcement orders
- (1)After hearing offence proceedings, a Magistrates Court may make an order (an enforcement order) for the defendant to take stated action within a stated period.
Examples of action that an order may require—
- to stop carrying out development
- to demolish or remove development
- to restore, as far as practicable, premises to the condition the premises were in immediately before development was started
- to do, or not do, another act to ensure that development complies with a development permit
- if the court reasonably believes that works are dangerous, to repair or rectify the works, or to fence the works off to protect people
- to stop a stated use of premises
- to apply for a development permit
- (2)The enforcement order may be in the terms the court considers appropriate to secure compliance with this Act.
The order may require the defendant to provide security for the reasonable cost of taking the stated action.
- (3)An enforcement order must state the period within which the defendant must comply with the order.
- (4)An enforcement order may be made under this section in addition to the imposition of a penalty or any other order under this Act.
- (5)A person must not contravene an enforcement order.
Maximum penalty—4,500 penalty units or 2 years imprisonment.
- I am of the view that it is appropriate to make an enforcement order on the basis that if the respondent was only required to pay the penalty without removing the containers the appellant would be put in a difficult position, and one which would cause further expenditure, to prosecute the respondent. Therefore, I order that the respondent remove all of the shipping containers within 60 days from the date of this judgment.
Relevant Law on Costs for the Magistrates Court Proceedings
- Costs for the Magistrates Court proceedings can be awarded pursuant to s 157 of the Justices Act 1886 which relevantly provides:
“157 Costs on conviction or order
In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem reasonable.”
- It is common ground in summary criminal proceedings that the unsuccessful party pay to the successful party its costs incurred. This was set out in Latoudis v Casey (1990) 170 CLR 534 at 543, wherein McHugh J said:
“If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by the reason of legal proceedings.”
- This position was confirmed to apply to prosecutors by Chesterman JA in Smith v Ash  2 Qd R 175 at .
- In Schaftenaar v Samuels (1975) 11 SASR 266, Wells J identified circumstances which courts of summary jurisdiction might consider when making orders for costs including:
- (2)The discretion must be judicially exercised; that is, the court cannot act arbitrarily or upon the ground of some misconduct wholly unconnected with the prosecution, or of some prejudice.
- (3)The court may act upon any facts connected with, or leading up to, the prosecution which have been satisfactorily proved or which have been observed in the progress of the case.
- (5)In the exercise of the discretion, there is no question of onus…A successful party has, in the absence of special circumstances, a reasonable expectation of obtaining an order for payment of costs…The court should not, however, exercise the discretion against the successful party ‘except for some reason connected with the case’.”
- I can find no special circumstances which would disentitle the appellant to receiving a costs order. The respondent, through his submissions, is asking me to have regard to matters which, first are unproven and lack any evidence, and, second, to which I am not permitted to have regard as per the above passage of Wells J.
- I am required to fix the costs amount and I find that the appellant is entitled to scale costs for the Magistrates Court trial in the amount of $2,971.15.
Relevant Law on Costs for Appeal to this Court
- Costs for the appeal to this court can be awarded pursuant to ss 226 and 232A of the Justices Act 1886 which relevantly provide:
The judge may make such order as to costs to be paid by either party as the judge may think just.
232A Costs for division
- (1)In deciding the costs that are just for this division, the judge may award costs only –
- For an item allowed for this division under a scale of costs prescribed under a regulation; and
- Up to the amount allowed for the item under the scale
- (2)However, the judge may allow a higher amount for costs if the judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.
- Applying the same authorities from paragraphs  to , I similarly find no special circumstances to warrant the appellant not being entitled to receive a costs order for the costs of the appeal to this court.
- Turning now to the appellant’s submission that it should be entitled to a higher amount for costs due to the special difficulty, complexity or importance of the appeal pursuant to s 232A(2).
- The appellant has outlined four matters which, in its submission, “satisfy the Court that the jurisdictional pre-condition to s 232A(2) has been established.” These are:
- (a)“First, the decision of the Defendant to agitate, as a defence (or, probably more accurately, a de facto cross-appeal), a position not raised below that he did not consent to the tender of the Exhibit 1 Statement of Agreed Facts, but go on to vigorously oppose a responsive application for leave to adduce fresh evidence in order to disprove the defence. This decision resulted in increased (and unnecessary) difficulty and complexity, as legal issues associated with when a prosecutor may seek leave to adduce fresh evidence not tendered below (an unusual circumstance) was required to be addressed, with the Appellant being required to both file written submissions (and reply submissions) for the substantive appeal as well as separate written submissions (and reply submissions) for the application for leave to adduce fresh evidence;
- (b)Secondly, the decision of the Defendant to resist the listing of the matter for hearing, and instead agitating for separate hearing dates for the application for leave to adduce fresh evidence, and the substantive appeal, which resulted in oral argument between the parties’ Counsel for between two to three hours before his Honour Judge Koppenol on 3 July 2019, and in which the Respondent / Defendant was unsuccessful. The difficulty and complexity of this course was avoidable had the Respondent / Defendant followed the orthodox course, and agreed to argument for both matters being heard in the one hearing (which is what ultimately occurred);
- (c)Thirdly, as a consequence of the above matters, rather than the subject appeal taking an hour or two as is ordinarily the case for appeals of this type, the appeal (and associated application for leave to adduce fresh evidence) took the better part of a day, and included reliance upon extensive written and oral submissions beyond those normally associated with s.222 Justices Act appeals; and
- (d)Fourthly, whilst it is acknowledged that complexity in legislation, of itself, may not always meet the threshold of “special difficulty or complexity” in this instance there was, it is submitted, special difficulty and complexity as a consequence of complex legislation, the requirement to identify an NCC classification to a shipping container being used for domestic storage purposes, a dearth of Queensland authority on the relevant points in question associated with the lawfulness of shipping container uses, and the requirement for considering of novel common law principles such as whether there is a requirement for structures to be fixed, whether a shipping container can comprise a structure, and whether the term “includes” in the definition of structure should be taken to mean “means and includes”. Further, submissions were required to be made in response to an allegation (again, not advanced below) that the Complaint was inadequately particularised in that it, in part, referred to buildings and not structures, which required further submissions and reference to the common law requirement for particularity in complaints of this type.”
- The appellant cited the decision of his Honour Judge Porter QC in Baker v Smith (No 2)  QDC 242 (“Baker v Smith (No 2)”) wherein his Honour allowed costs above scale having regard to the special difficulty and complexity of the appeal.
- I respectfully adopt his Honour Judge Porter QC’s analysis on this issue contained in Baker v Smith (No 2) at paragraphs  to . His Honour stated:
“Special complexity, difficulty or importance
 There are three points which need first to be articulated:
- (a)First, the statute’s requirement that the case be of special difficulty, complexity or importance begs the question: In comparison to what? In my view, the comparison must be to the difficulty, complexity or importance of the ordinary run of cases heard and determined under the Justices Act on complaint;
- (b)Second, the appellant in written submissions emphatically emphasised the case must be of special difficulty etc. I agree that the question is not whether the case is difficult, complex or important compared to the ordinary case, but whether it is especially so; and
- (c)Third, whether a case has that character involves an assessment of all the relevant circumstances. There is no rule that all cases of a particular kind are, or are not, of this character. It is a judgment to be made on a case by case basis.”
 Judge Farr’s decision in Cullinan v McCahon  QDC 120 is consistent with these propositions. His Honour was dealing there with an application for costs in a matter where the case involved a single charge of wrongly granting a building approval by a private certifier. It was put to his Honour that special complexity or difficulty arose because the charge involved statutory complexity, took considerable work and effort to meet and was brought wrongly in some technical respects and without sufficient particulars. Nothing was put before his Honour as to the practical consequences of the complexity of the statutory scheme nor of the extent of the work and effort alleged. Given there was one charge and the application lasted only a few hours, it is not surprising that his Honour refused to impose costs greater than scale costs.
 His Honour observed:
- Unfortunately for the appellant, I do not agree that the case was one which involved special difficulty, complexity or importance.
- There is no doubt that it was a matter that had a degree of difficulty and/or complexity attached to it. The question however is whether it amounted to special difficulty or complexity.
-  “Special” is relevantly defined in The Macquarie Dictionary as “extraordinary; exceptional; exceptional in amount or degree.”
- The Macquarie Dictionary Online defines it as “distinguished or different from what is ordinary or usual”.
- Examples of cases where special difficulty or complexity was found to exist are Lucy v OCC Holdings P/L & Ors (No 2)  QDC 169 (‘Lucy No 2”) in reference to Lucy v OCC Holdings Pty Ltd  QDC 004 and Morley v Senewiratne & Anor  QDC 296. These cases involved detailed legal argument by Senior Counsel in hearings that lasted for days. Whilst the length of the hearing and the fact that Senior Counsel was briefed is not determinative of a finding that a matter involves special difficulty, complexity or importance, it can nevertheless be a relevant consideration in the determination of such an issue. In this matter, the application before the Magistrate only lasted for a few hours and did not involve any issues that were out of the ordinary.
- For instance, it can hardly be said that a matter involves special difficulty or complexity simply because the relevant legislation is complex. If that was the criteria for assessing the issue, then the absurd consequence would be that all matters that come before the court under that legislation would fall into the category of having special difficulty or complexity. Whilst the relevant legislation in this matter might have some complexity to it, in my view the charge was quite straightforward in nature and its particulars were brief and neither suggested an especially difficult or complex case.
- It may well have been the case that it was a charge that required considerable work and effort to meet, but, once again that does not suggest any special quality. All charges require work and effort on the part of a defendant and his/her legal representatives. The degree will of course vary from case to case. I am not persuaded that the degree required in this matter was specially onerous, difficult or complex. Whilst I appreciate that the appellant’s legal representative submitted to the contrary, it appeared to me that he had an unfortunate tendency to overly complicate relatively simple concepts.” (emphasis in original) (citations omitted)
- I now return to each of the appellant’s points outlined in  above.
- In relation to the appellant’s first point, I acknowledge that the need to make an application to and subsequent submissions on whether leave should be granted to adduce fresh evidence resulted in increased time and unnecessary expense but such issues are not uncommon in s 222 appeals and, in my view, did not in themselves create any difficulty or complexity that was special (as required by s 232A).
- On the appellant’s second point, again the avenue the respondent chose to take (in agitating that the application for leave to adduce fresh evidence be heard on a separate date to the substantive appeal) may have frustrated the appellant and created more work, yet does not amount to special difficulty and complexity.
- To the third point, being that the hearing of the appeal took the better part of a day as opposed to an hour or two as is common is these kinds of appeal. Whilst the majority of these kinds of appeals may well be dealt with in an hour or two, a hearing that exceeds that time is not determinative of a finding of special difficulty or complexity. It is a relevant consideration but in comparison to cases such as Baker v Smith (No 2) and Lucy No 2, this appeal can hardly be seen as anything special in difficulty and complexity. Baker v Smith (No 2) involved convictions under both the Forestry Act 1959 and the SPA, it required two separate judgments, the first being 242 pages in length and the second being 115 pages in length and a total of nine hearing dates. Lucy No 2 involved five appeals and a hearing which lasted four days. With respect, the complexity of the current appeal pales in comparison to those cases.
- Finally, with respect to the appellant’s fourth point, whilst I agree that the complexity of the SPA presented difficulties, there was nothing in the appeal which I would regard as having special difficulty or complexity. I reiterate his Honour Judge Farr SC’s remarks in Cullinan v McCahon at  (above) in that regard.
- For those reasons, I find that the appeal was not of special complexity, difficulty or importance and does not warrant costs being awarded above scale.
- As previously stated, I find that the appellant is entitled to receive scale costs. I am required to fix the costs amount and I find that the appellant is entitled to scale costs for the proceedings in this court in the amount of $6,071.47.
- I therefore order that:
- The respondent pay a penalty of $10,500.
- The respondent remove the shipping containers from the property within 60 days.
- The respondent pay the appellant’s costs in the Magistrates Court proceeding to the value of $2,971.15.
- The respondent pay the appellant’s costs in the appeal to this court to the value of $6,071.47.
 Pursuant to Sustainable Planning Act 2009, s 578 in force at the relevant time.
 Respondent’s Submissions on penalty and costs, (j).
 Penalties and Sentences Regulation 2015, s 3 in force at the relevant time.
 Penalties and Sentences Act 1992, s 48(1).
 This court has power to make this order pursuant to s 225(1) and (3) of the Justices Act 1886.
 Appellant’s Submissions on Costs, .
 Appellant’s Submissions on Costs, [15(a)] – [15(d)].
 As to the first two matters see also Schloss v Bell  ICQ 17 at 
- Published Case Name:
Stephen Ball on behalf of Logan City Council v Thomas Joseph Brookes (No 2)
- Shortened Case Name:
Logan City Council v Brookes (No 2)
 QDC 221
09 Sep 2020