Stone v Thomas[2022] ICQ 30

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   Mark Douglas Stone unsuccessfully prosecuted Calvin Joel Thomas for two offences alleged against the Coal Mining Safety and Health Act 1999 (CMSH Act).
2. [2]
   After dismissing the complaints, Industrial Magistrate Crawford awarded costs in favour of Mr Thomas in the sum of $335,753.83.  Mr Stone does not contend that he ought not pay Mr Thomas’s costs, but he submits on appeal that the costs ought to have been assessed by reference to a scale prescribed under the Justices Act 1886.^[1]
3. [3]
   Mr Thomas cross-appeals.^[2]  He submits that the Industrial Magistrate awarded what she thought were the fair and reasonable costs of the defence of the prosecution whereas she ought to have awarded an amount equivalent to the actual costs which Mr Thomas incurred.
4. [4]
   There are no facts in issue.  Very focused written and oral submissions of the parties have identified the issues of construction of various statutory provisions upon which the outcome of the appeals depend.

Relevant statutory provisions

5. [5]
   The CMSH Act has as its objective the protection of the safety and health of persons at coal mines through a scheme designed to reduce risk to an acceptable level.^[3]  This is achieved largely by the imposition of safety and health obligations^[4] and the creation of offences for failure to discharge those obligations.^[5]
6. [6]
   Offences against the CMSH Act are prosecuted summarily.  Section 255 provides, relevantly:

“255Proceedings for offences

3. (1)
   A prosecution for an offence against this Act, other than an offence against part 3A,^[6] is by way of summary proceedings before an industrial magistrate. …

3. (4)
   The Industrial Relations Act 2016 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3).

Note—

See, however, section 264 in relation to particular orders for costs. …” (emphasis added)

7. [7]
   The Industrial Magistrates Court is a creature of the Industrial Relations Act 2016 (the IR Act).^[7]  The jurisdiction of the Industrial Magistrates Court is identified by s 506 of the IR Act.  It provides, relevantly:

“506Magistrate’s jurisdiction

3. (1)
   A magistrate has jurisdiction—

1. (a)
   to exercise powers conferred on, or jurisdiction given to, magistrates by this Act or another Act; and …”

8. [8]
   Section 255(1) of the CMSH Act confers jurisdiction upon the Industrial Magistrates Court as envisaged by s 506(1)(a) of the IR Act.
9. [9]
   Section 569 of the IR Act is contained in Chapter 11, Part 7 entitled, “Offence Proceedings”.  It provides, relevantly:

“569Where offence proceedings are to be heard and decided

3. (1)
   Proceedings for an offence against this Act are to be heard and decided by the court or a magistrate, within the limits of the court’s or magistrate’s jurisdiction.

3. (2)
   Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are started must be constituted by a magistrate sitting alone. …” (emphasis added)

10. [10]
    The reference in s 569 to a “Magistrate” is a reference to an Industrial Magistrate.^[8] 
11. [11]
    That the Justices Act applies to prosecutions for offences against the CMSH Act is confirmed by s 44 of the Acts Interpretation Act 1954 which provides, relevantly:

“44 Summary proceedings

3. (1)
   In an Act, a provision of the type mentioned in subsection (2) means that a proceeding for an offence, or a specified offence, against the Act is a summary proceeding under the Justices Act 1886.

3. (2)
   Subsection (1) applies to provisions of the following type—

1. (a)
   a provision to the effect that a proceeding for the offence is to be heard and decided summarily;

2. (b)
   a provision to the effect that a proceeding for the offence is to be heard and decided by or before justices or a magistrate …”

12. [12]
    It is not in contest that the Justices Act governs proceedings for offences against the CMSH Act.  What is in contest is the question of the applicability of the costs provisions of the Justices Act^[9] to prosecutions under the CMSH Act.
13. [13]
    Part 6 of the Justices Act is entitled, “Proceedings in case of simple offences and breaches of duty”.  That part contains various sections governing proceedings in the Magistrates Court and, therefore, in the Industrial Magistrates Court.  Division 8 of Part 6 is entitled, “Costs”.
14. [14]
    Section 157 of the Justices Act concerns costs on conviction.  Section 158 vests jurisdiction upon Magistrates Courts to award costs against an unsuccessful complainant.  By s 158(1), the Magistrate may “order that the complainant shall pay to the defendant such costs as … seem just and reasonable”.
15. [15]
    Section 158A was enacted in 1992^[10] in response to the High Court’s decision in Latoudis v Casey.^[11]  Section 158A prescribes various considerations which must be taken into account before an award of costs may be made against an unsuccessful complainant.  It provides, relevantly:

“158AExercise of discretion in relation to an award of costs

3. (1)
   Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.

3. (2)
   In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—

1. (a)
   whether the proceeding was brought and continued in good faith; and

2. (b)
   whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and

3. (c)
   whether the investigation into the offence was conducted in an appropriate way; and

4. (d)
   whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and

5. (e)
   whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and

6. (f)
   whether the defendant unreasonably declined an opportunity before a charge was laid—

1. (i)
   to explain the defendant’s version of the events; or

2. (ii)
   to produce evidence likely to exonerate the defendant;

and the explanation or evidence could have avoided a prosecution; and

7. (g)
   whether there was a failure to comply with a direction given under section 83A; and

8. (h)
   whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and

1. (i)
   whether the defendant was acquitted on a charge, but convicted on another. …”

16. [16]
    While s 158A limits the discretion to award costs, s 158B limits the quantum of costs which may be awarded.  It provides:

“158BCosts for division

3. (1)
   In deciding the costs that are just and reasonable for this division, the justices may award costs only—

1. (a)
   for an item allowed for this division under a scale of costs prescribed under a regulation; and

2. (b)
   up to the amount allowed for the item under the scale.

3. (2)
   However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”

17. [17]
    A scale of costs has been prescribed by regulation.^[12]  Calculation of Mr Thomas’s costs on that scale would result in an award of costs far less than what was awarded by the Industrial Magistrate. 
18. [18]
    Section 264 of the CMSH Act provides:

“264 Orders for costs

3. (1)
   This section applies in relation to a proceeding for an offence against this Act.

3. (2)
   An Industrial Magistrates Court may award a represented party for the proceeding costs of the representation.

3. (3)
   Subsection (2) applies despite section 255(4) and the Industrial Relations Act 2016, section 530(6).

3. (4)
   If a court convicts a person of an offence against this Act, the court may order the person to pay the reasonable costs incurred by RSHQ^[13] in investigating, and preparing for the prosecution of, the offence.

3. (5)
   This section does not limit the orders for costs the court may make.

3. (6)
   In this section—

represented party, for a proceeding, means a party to the proceeding, or a person ordered or permitted to appear or to be represented by a lawyer, who is represented by a lawyer.”

19. [19]
    Section 255(4) of the CMSH Act, which is referred to in s 264, is set out earlier in these reasons^[14] and s 530(6) of the IR Act is set out later.^[15]
20. [20]
    By s 545 of the IR Act, there is a power to award costs in proceedings before the “Court” or “Commission”.  That section provides:

“545 General power to award costs

3. (1)
   A person must bear the person’s own costs in relation to a proceeding before the court or commission.

3. (2)
   However, the court or commission may, on application by a party to the proceeding, order—

1. (a)
   a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied—

1. (i)
   the party made the application or responded to the application vexatiously or without reasonable cause; or

2. (ii)
   it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or

2. (b)
   a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred—

1. (i)
   because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or

2. (ii)
   because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.

3. (3)
   The court or commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.” (emphasis added)

21. [21]
    Mr Thomas, in his submissions as to the proper construction of s 264 of the CMSH Act, relies on notes and headings in sections.  Sections 14(2) and 14(4) of the Acts Interpretation Act 1954 provide that headings and notes are part of an Act.  Therefore, headings and notes are relevant to determining the construction of a provision.

Statutory history

22. [22]
    Section 264 in its present form, was as a result of an amendment in 2020 by the Mineral and Energy Resources and Other Legislation Amendment Act 2020 (the MER Amendment Act). 
23. [23]
    Section 264, before amendment, provided:

“264 Costs of investigation

3. (1)
   If a court convicts a person of an offence against this Act, the court may order the person to pay the department’s reasonable costs of investigating the offence, including reasonable costs of preparing for the prosecution of the offence.

3. (2)
   This section does not limit the orders for costs the court may make.”

24. [24]
    The amendment to s 264 was necessary because of the effect of s 530(6) of the IR Act.  Industrial tribunals traditionally have been lay tribunals where often the members are not legally qualified and lawyers have either no, or limited, rights of appearance.  Section 530 of the IR Act continues this tradition. 
25. [25]
    The IR Act establishes the following bodies, all of which exercise either judicial or administrative power or both:

1. the Industrial Court of Queensland (ICQ);
2. the Queensland Industrial Relations Commission (QIRC);
3. the Full Bench of the QIRC;
4. Industrial Magistrates;
5. the registrar of the QIRC and ICQ.

26. [26]
    Section 530 prescribes the circumstances in which lawyers may appear in proceedings before the ICQ, QIRC, the Full Bench, the Industrial Magistrates Court or the registrar.  It provides, relevantly:

“530 Legal representation

3. (1A)
   This section applies in relation to proceedings other than a proceeding for a public service appeal.

3. (1)
   A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—

1. (a)
   for proceedings in the court—

1. (i)
   all parties consent; or

2. (ii)
   the court gives leave; or

3. (iii)
   the proceedings are for the prosecution of an offence; or

2. (b)
   for proceedings before the full bench—the full bench gives leave; or

3. (c)
   for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or

4. (d)
   for other proceedings before the commission, other than the full bench—

1. (i)
   all parties consent; or

2. (ii)
   for a proceeding relating to a matter under a relevant provision—the commission gives leave; or

5. (e)
   for proceedings before an Industrial Magistrates Court—

1. (i)
   all parties consent; or

2. (ii)
   both of the following apply—

1. (A)
   the proceedings relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; and

2. (B)
   an Industrial Magistrates Court gives leave; or

3. (iii)
   the proceedings are for the prosecution of an offence; or

6. (f)
   for proceedings before the registrar, including interlocutory proceedings—

1. (i)
   all parties consent; or

2. (ii)
   the registrar gives leave; or …

3. (6)
   In proceedings before the Industrial Magistrates Court for the prosecution of an offence under subsection (1)(e), the person represented can not be awarded costs of the representation.” (emphasis added)

27. [27]
    Before Kilby v Harrison; Saxon Energy Services Pty Ltd v Harrison,^[16] Industrial Magistrates had been awarding costs (including fees charged by lawyers) in favour of parties who had successfully defended prosecutions under the CMSH Act.  In so doing, they had been exercising powers under ss 157 and 158 of the Justices Act as regulated by ss 158A and 158B. 
28. [28]
    In Kilby, O'Connor VP considered the Industrial Relations Act 1999 (the 1999 IR Act) and, in particular, s 319(3) which was in relevantly the same terms as s 530(6) of the IR Act.  Vice President O'Connor observed that s 319(3) of the 1999 IR Act prohibited Industrial Magistrates from awarding “costs of the representation” to a party to a prosecution under the CMSH Act.^[17]
29. [29]
    Against that background, s 264 of the CMSH Act was amended by the MER Amendment Act.  The explanatory note to the MER Amendment Act relevantly says:

“The policy objective is to provide certainty to litigants. It has been identified that the Industrial Relations Act 1999 and the Industrial Relations Act 2016 precludes the making of costs orders in respect of costs of the representation in the Industrial Magistrates Court for proceedings under the Coal Mine^[18] Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999, and for proceedings under the Petroleum and Gas (Production and Safety) Act 2004 prior to December 2014.

  The Bill amends the Coal Mine^[19] Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999 to provide that costs orders for representation may be made for criminal proceedings before the Industrial Magistrates Court. The Bill also amends the Coal Mine^[20] Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999 to validate cost orders made by an Industrial Magistrates Court in relation to a proceeding for an offence against those Acts. ...

The policy objective is to be achieved by amending the Coal Mining Safety and Health Act 1999, and the Mining and Quarrying Safety and Health Act 1999 to provide that costs orders for representation may be made for criminal proceedings before the Industrial Magistrates Court. The objective is also achieved by amending Coal Mining Safety and Health Act 1999, and the Mining and Quarrying Safety and Health Act 1999 Act to validate cost orders made by an Industrial Magistrates Court in relation to a proceeding for an offence against those Acts. …” (emphasis added)

30. [30]
    The reference to “validating” costs orders is a reference to s 321 of the CMSH Act^[21] which provides:

“321 Validation of particular orders for costs

3. (1)
   This section applies to a costs order purportedly made by an Industrial Magistrates Court before the commencement in relation to a proceeding for an offence against this Act.

3. (2)
   The making of the costs order is, and is taken to always have been, as valid as it would have been if amended section 264 had been in effect from 16 March 2001.

3. (3)
   Anything done under the costs order is, and is taken to always have been, as valid as it would have been if amended section 264 had been in effect from 16 March 2001.

3. (4)
   If the repealed Industrial Relations Act 1999 applied to the proceeding, amended section 264 applies as if the reference in section 264(3) to the Industrial Relations Act 2016, section 530(6) were a reference to section 319(3) of the repealed Act.

3. (5)
   In this section—

amended section 264 means section 264 as amended by the Mineral and Energy Resources and Other Legislation Amendment Act 2020.

costs order means an order awarding a represented party for a proceeding costs of the representation.

Industrial Magistrates Court includes an Industrial Magistrates Court under the repealed Industrial Relations Act 1999.

represented party, for a proceeding, means a party to the proceeding, or a person ordered or permitted to appear or to be represented by a lawyer, who is represented by a lawyer.”

31. [31]
    Although Kilby is not mentioned in the explanatory memorandum to the MER Amendment Act, s 321 was obviously a legislative response to O'Connor VP’s observations that Industrial Magistrates had been making costs orders (including for “costs of the representation”) in relation to prosecutions under the CMSH Act.

The judgment of the Industrial Magistrate

32. [32]
    It was submitted to the Industrial Magistrate that s 264 of the CMSH Act, post amendment, constituted a grant of power to award costs independently of s 158 of the Justices Act.  It followed then, it was submitted, that the restrictions in ss 158A and 158B did not apply.  The Industrial Magistrates Court accepted that submission and went on to find that s 264 of the CMSH Act bestowed a discretion to award fair and reasonable costs incurred by a defendant.  The Industrial Magistrates Court was not, her Honour found, bound to make an order indemnifying a successful defendant against costs actually incurred.
33. [33]
    In the course of judgment, her Honour said this, in a passage which is relevant to the disposition of the present appeals:

“For a number of reasons, I’m not satisfied that those amounts are fair and reasonable costs of the representation in this case. The trial was conducted over eight days. The complainant is correct that many of those days were short days for various reasons. Notwithstanding that both the prosecution and defence were represented by both senior and junior counsel, in my view, this was not a complex trial. It did not involve particularly challenging legal topics or highly complicated expert evidence. It did not involve voluminous numbers of documents with complex evidentiary cross-referencing. It was not a matter of significant seriousness or public interest importance that would otherwise warrant the engagement of senior counsel. It is uncontroversial that trials determine criminal liability for criminal conduct and for an individual defendant, any risk of imprisonment is certainly a very serious matter.

Although this matter was potentially serious for the defendant individually and the mine also, in my view, it was not so difficult or complex that it demanded the amount of professional work outlined in the defendant’s material.”

The contentions of the respective parties

34. [34]
    Mr Stone submits that the scheme established by the CMSH Act included one for prosecution of offences pursuant to the Justices Act.  That, Mr Stone submits, picks up ss 158, 158A and 158B as provisions applicable to the determination of costs issues on such prosecutions. 
35. [35]
    Mr Stone submits that before the amendment to s 264 of the CMSH Act, the power of an Industrial Magistrate to award costs came from the Justices Act provisions.  The intent of the amendment to s 264 of the CMSH Act was not to create a new costs regime, but was to remedy the mischief created by s 530(6) of the IR Act and thereby enable Industrial Magistrates to make costs orders which include “costs of the representation” in exercise of their powers under the Justices Act.
36. [36]
    Mr Thomas submits that s 264 in its present form is an independent source of power to Industrial Magistrates to award costs in favour of a defendant who successfully defends a prosecution under the CMSH Act.  Sections 158, 158A and 158B have no application, he submits.  Therefore, an Industrial Magistrate, when awarding costs is not, relevantly here, bound by the restrictions in s 158B. 
37. [37]
    The reasons Mr Thomas says that his submissions ought be accepted can be summarised as follows:

1. Section 264 is a specific power dealing with costs on a prosecution under the CMSH Act while ss 158, 158A and 158B are general provisions applying to all prosecutions conducted under the Justices Act.  Reliance is had upon the maxim, generalia specialibus non derogant.
2. The heading of the current s 264 forms part of the section and it now reads, “Orders for costs”.  That, it is submitted, supports the notion that s 264 is a costs provision, namely one empowering the making of a costs order.
3. The note to s 255(4) expressly refers to s 264 and, therefore, s 255 ought to be construed as incorporating the Justices Act provisions only subject to s 264.  It is submitted that the note indicates that it is s 264, not ss 158, 158A and 158B of the Justices Act which governs costs. 
4. The explanatory memorandum to the Bill which led to the enactment of the MER Amendment Act supports the submission that s 264 stands as a separate source of power to award costs.
5. Section 545 of the IR Act is inconsistent with s 264 of the CMSH Act, thus indicating that s 264 stands alone as a source of power to award costs.

38. [38]
    On the cross-appeal Mr Thomas submits that if, as he submits is the case, the Justices Act provisions^[22] do not restrict his claim for costs, s 264 provides that the Industrial Magistrate may award “costs of the representation”.  That, unlike costs awarded in favour of a prosecutor for investigating and preparing the case,^[23] is not restricted to “reasonable costs”.^[24]  He submits that the “costs of the representation” should be all those costs actually incurred.
39. [39]
    There was argument before me as to the meaning and effect of the term “costs of the representation”.  Mr Stone submitted that it meant lawyers’ costs.  Mr Stone submitted that if s 264 was the sole source of power to award costs in favour of a successful defendant, there was no power to award other costs beyond “costs of the representation”.  He submitted that expenses payable to witnesses and other ordinary outlays would not be recoverable.  That, he submitted, was a strong indicator that s 264 was not an independent source of power to award costs.
40. [40]
    Mr Thomas submitted that “costs of the representation” did not mean just the costs of lawyers.  He submitted that the term meant costs of representing or defending the defendant on the charge.  That would include lawyers’ costs, but would also include other costs incidental to the defence.
41. [41]
    On the cross-appeal, Mr Stone submitted that if s 264 was an independent source of power, it was still a discretionary power.  Therefore, the appropriate approach of an Industrial Magistrate would be to award reasonable costs, not all “costs of the representation” actually incurred.

Legal principles

42. [42]
    The issues in this appeal fall to be determined primarily upon the proper construction of s 264 of the CMSH Act.
43. [43]
    Subject to provisions in statutory interpretation legislation,^[25] the construction exercise involves the application of principles well-established by the High Court of Australia.  It involves determination of the intention of the legislature expressed through the actual words used in the text of the relevant provision.^[26]  However, the literal approach has been long ago abandoned.^[27]
44. [44]
    These principles were authoritatively restated recently in R v A2; R v Magennis; R v Vaziri:^[28]

“32The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

33 Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

34 This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

35 The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

36 These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

37 None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.”^[29]

45. [45]
    As observed in A2, context includes the statute as a whole^[30] and, importantly here, context includes the history of the legislation and the identification of the problem (historically known as the “mischief”) which the legislation (here, amending legislation) sought to remedy.  In CIC Insurance Ltd v Bankstown Football Club Inc:^[31]

“[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.”^[32]

46. [46]
    As already observed, Mr Thomas relies on the doctrine of generalia specialibus non derogant.  The principle is a limited one.  The primary aim of statutory interpretation is to construe the various provisions according to the relevant principles.  As observed in the joint judgment of Mason ACJ, Wilson, Brennan and Dawson JJ in Purcell v Electricity Commission of New South Wales,^[33] “The maxim applies only where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation”.^[34]
47. [47]
    Also, as already observed, Mr Thomas relies on extrinsic material, namely the explanatory memoranda to the MER Amendment Act.  This is authorised by s 14B of the Acts Interpretation Act which relevantly provides:

“14BUse of extrinsic material in interpretation

3. (1)
   Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation—

1. (a)
   if the provision is ambiguous or obscure—to provide an interpretation of it; or

2. (b)
   if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or

3. (c)
   in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.

3. (2)
   In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to—

1. (a)
   the desirability of a provision being interpreted as having its ordinary meaning; and

2. (b)
   the undesirability of prolonging proceedings without compensating advantage; and

3. (c)
   other relevant matters.

3. (3)
   In this section—

extrinsic material means relevant material not forming part of the Act concerned, including, for example—

1. (a)
   …

5. (e)
   an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and …

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.”

48. [48]
    It is unnecessary here to consider the limits of this section.  Both parties accepted that resort could be had to the explanatory memorandum in order to understand the purpose of the amendment to s 264.  The section authorises resort to the material for that purpose.^[35] 
49. [49]
    The common law principles stated by the High Court are consistent with the Acts Interpretation Act 1954.^[36] 

Consideration

50. [50]
    To determine the meaning of s 264 as amended, it is necessary to understand the statutory scheme in existence before the passing of the MER Amendment Act. 
51. [51]
    Prosecutions under the CMSH Act were conducted by Industrial Magistrates pursuant to the provisions of the Justices Act.  The sources of power to the Industrial Magistrates to conduct those proceedings were the CMSH Act, the IR Act and the Justices Act.
52. [52]
    Section 545 of the IR Act does not grant power to the Industrial Magistrates to award costs.  That section appears in Chapter 11, Part 5 of the IR Act.  Chapter 11 is entitled, “Industrial tribunals and registry”.  It establishes the various courts and bodies identified in paragraph [25] of these reasons. 
53. [53]
    By s 407 of the IR Act, “the Industrial Court of Queensland” is defined as “the court”.  By s 429, “the Queensland Industrial Relations Commission” is defined as “the commission”.
54. [54]
    The reference to “the court” and “the commission” in s 545 is a reference then to the Industrial Court and the QIRC.  No power to award costs is vested upon the Industrial Magistrates Court by s 545.
55. [55]
    Prior to the amendment of the CMSH Act, the only power of an Industrial Magistrate to award costs was that power vested by the Justices Act.  Section 158, 158A and 158B not only gave a power to award costs to a successful defendant, but also restricted that power^[37] and limited the quantum of the costs to be awarded.^[38]
56. [56]
    By s 530(6) of the IR Act, the “costs of the representation” may not be recovered.  Section 530 is a provision which concerns legal representation across all levels of the State’s industrial hierarchy from this Court to the registrar.  At all levels, an appearance by a lawyer is only by leave.  An exception is where the proceeding is one in the Industrial Magistrates Court for a prosecution.^[39]  It is in those circumstances that s 530(6) is engaged, and costs cannot be awarded “of the representation”.
57. [57]
    The purpose of s 530 is to limit the right to legal representation in the hierarchy of courts and tribunals in Queensland’s industrial system.  In that context, the “costs of the representation” is a reference to the fees payable to lawyers who represent parties in prosecutions in the Industrial Magistrates Court pursuant to the exception in s 530(1)(e)(iii) of the IR Act. 
58. [58]
    It is well-established that a self-represented litigant may recover his or her out-of-pocket costs, but not for his or her time in representing himself or herself.^[40]  A litigant in a prosecution in the Industrial Magistrates Court was, as regards costs, in a similar position.
59. [59]
    Consequently, before the amendment to s 264 of the CMSH Act:

1. the power to award costs to parties to a prosecution in the Industrial Magistrates Court was the Justices Act;
2. as regards a costs claim by a successful defendant, ss 158, 158A and 158B were engaged;
3. because of s 530(6) of the IR Act, those costs were limited to out-of-pocket expenses.

60. [60]
    Against that context, the amendment to s 264 must be considered.
61. [61]
    Mr Thomas argues that the legislative intention behind the amendment is to create a new independent source of power to assess costs and to sever the Justices Act provisions from that exercise.  That is not the legislative intent reflected by the amendment.
62. [62]
    Section 264 is entitled, “Orders for costs”.  That heading is relevant to the interpretation of the section but is of little assistance.  Section 264 deals with “costs of the representation”^[41] and costs of investigation.^[42]  The heading throws no light on whether the Justices Act provisions have been usurped by s 264(2) of the CMSH Act. 
63. [63]
    The note to s 255 of the CMSH Act is also relevant.  However, it does nothing other than confirm the obvious; that s 264 modifies the operation of s 530(6) of the IR Act.  The intent is that s 264 will continue to operate in conjunction with the Justices Act provisions.
64. [64]
    Section 264(2) empowers the Industrial Magistrates Court to grant “a represented party” the “costs of the representation”.  That subsection applies to both defence and prosecution.  The successful defendant would, if Mr Thomas’s submission was successful, be entitled to “costs of the representation”, but could not claim out-of-pocket expenses.  Neither could the prosecution, but it could claim investigation expenses.^[43]  That would be an odd result.
65. [65]
    Section 264(5) recognises the existence of some power to award costs other than s 264.  No source of power has been identified apart from the Justices Act.  Section 264(5) is in identical terms to s 264(2) before amendment.  Before amendment, the only sources of power to award costs were the Justices Act provisions.  They are what were caught by s 264(2).  That s 264(2) was re-enacted as s 264(5) is a powerful indication that s 264, as amended, does not operate independently of ss 157, 158, 158A and 158B of the Justices Act.
66. [66]
    If ss 157 and 158 operate in conjunction with s 264, a harmonious result is achieved.  Sections 157 and 158 of the Justices Act, read with s 264 of the CMSH Act, allow for the award of costs unfettered by the restriction previously imposed by s 530(6) of the IR Act.  Therefore, subject to ss 158A and 158B, the Industrial Magistrate is empowered to deal with all costs, including “costs of the representation”.
67. [67]
    Once the significance of s 264(5) is understood, the only sensible construction is that s 158A applies to the discretion to award costs upon a successful defence.  The alternative is that the statutory response to Latoudis v Casey,^[44] which is encompassed within s 158A, applies when the Industrial Magistrate is considering awarding out-of-pocket expenses, but not when considering awarding recovery of lawyers’ fees.
68. [68]
    If s 158A continues to apply, as in my view it does, then so must s 158B.  On Mr Thomas’s submissions, the scale would only apply to out-of-pocket expenses.
69. [69]
    The statutory history strongly suggests that the legislative intention was to maintain the existing regime, but reverse the effect of s 530(6) to enable recovery pursuant to s 158 of “costs of the representation”.  There are various reasons for this.

1. Section 530(6) excludes “costs of the representation”.
2. The phrase used in s 264(2) is the same as that used in s 530(6), namely “costs of the representation”.
3. The explanatory memorandum refers to “costs of the representation”.  It also refers to it having been “identified” that the IR Act precludes costs orders for “costs of the representation”.  That is obviously a reference to s 530(6) and Kilby v Harrison; Saxon Energy Services Pty Ltd v Harrison.^[45]  That is the mischief which the amendment was designed to address.
4. Section 264 says nothing as to the bases upon which the discretion to award costs should be exercised.  Discretionary limitations exist within s 158A and there is nothing to suggest any legislative intention to remove the prescription of those discretionary limitations.
5. Section 264 says nothing as to the limitation of the quantum of costs to be awarded to a successful defendant.  Limitations exist within s 158B and there is nothing suggesting a legislative intention to remove those limitations.
6. Section 321 of the CMSH Act validates costs orders previously made by Industrial Magistrates.  Those costs orders were made by reference to ss 157, 158, 158A and 158B of the Justices Act.  The enactment of s 321 recognises an intention to validate costs orders decided upon the considerations in the Justices Act provisions where “costs of the representation” were erroneously awarded contrary to s 530(6).  In my view, the regime which is brought into effect by the amendment to s 264 is to remove the restriction in s 530(6) and validate errors made by Industrial Magistrates in ignorance of the section.

70. [70]
    On the backdrop of the relevant context, including the evident statutory intention and the legislative history, the meaning of the text of s 264(2) is clear.  It is to exempt prosecution proceedings under the CMSH Act from the restriction in s 530(6).  There is no amendment to s 530(6) of the IR Act, so its general operation is preserved.
71. [71]
    The sections now operate in this way:

1. As regards costs of prosecutions under the CMSH Act, s 530(6) of the IR Act has no operation.  That is because, in those proceedings, an Industrial Magistrate is entitled to award “costs of the representation” by force of s 264(2) of the CMSH Act.
2. The Industrial Magistrate is therefore empowered by s 157 (prosecutors’ costs) and s 158 (defence costs) to deal generally with costs.
3. When considering awarding costs against a prosecutor, the Industrial Magistrate must have regard to s 158A.
4. When considering the quantum of costs, the Industrial Magistrate must have regard to s 158B.

72. [72]
    Upon application of the rules of statutory interpretation, s 264 of the CMSH Act and ss 157, 158A and 158B can be reconciled.  There is, therefore, no scope for the operation of the maxim, generalia specialibus non derogant.

Disposition of the appeals

73. [73]
    For the reasons explained, the Industrial Magistrate has erred in holding that in determining the quantum of Mr Stone’s costs, she is not bound by ss 158B of the Justices Act.  As previously observed, Mr Stone accepts that a costs order should have been made, so no consideration need be given to s 158A(2).
74. [74]
    By s 158B of the Justices Act, the function of the Industrial Magistrate was to award costs pursuant to the scale but with a discretion to award higher amounts for costs if satisfied “that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case”. 
75. [75]
    Mr Stone submitted that the passage from the Industrial Magistrate’s judgment, which is set out at paragraph [33] of these reasons, is tantamount to a finding that the matter is not especially difficult, complex or important, so the discretion to award amounts higher than the scale does not arise.  If that submission is accepted, the matter should be remitted back to the Industrial Magistrate to assess the costs according to the scale.
76. [76]
    In my view though, Mr Stone’s submission ought not be accepted.  The comments of the Industrial Magistrate were made in the course of her Honour considering what she understood to be the statutory command to her, namely to assess “fair and reasonable” costs.  Her Honour did approach that task by reference to consideration of the complexity (or lack thereof) of the case.  However, her Honour did not turn her mind to the statutory test prescribed by s 158B(2) and, therefore, did not assess “difficulty, complexity or importance of the case” in that light.
77. [77]
    The appropriate order is to remit the matter back to the Industrial Magistrate for her Honour to determine whether amounts higher than the scale of costs are justified and then to assess costs after having made that decision.
78. [78]
    Once it is understood that the Justices Act provisions apply to the assessment of costs, the cross-appeal must fail.
79. [79]
    Upon the hearing of the appeals, the parties were content for me to make directions for the determination of the costs of the appeals upon written submissions.  That is appropriate.
80. [80]
    The orders are:

1. Appeal C/2022/12 is allowed.
2. Appeal C/2023/13 is dismissed.
3. The question of costs is remitted to Industrial Magistrate Crawford to consider whether the discretion vested by s 158B(2) of the Justices Act 1886 arises and to otherwise assess the costs according to law.
4. The appellant in appeal C/2022/12 file and serve upon the respondent in appeal C/2022/12 by 23 September 2022 any written submissions on the costs of both appeals.
5. The respondent in appeal C/2022/12 file and serve upon the appellant in appeal C/2022/12 by 30 September 2022 any written submissions on the costs of both appeals.
6. Each party shall have leave to file and serve by 7 October 2022 any application for leave to make oral submissions on costs of the appeals.
7. In the absence of any application to make oral submissions on costs of the appeals being filed by 7 October 2022, the question of costs will be decided on any written submissions filed and without further oral hearing.