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CITE

Unreported Judgment

Stone v Belmore Bulk Materials Pty Ltd[2024] ICQ 23Hartigan DP
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Stone v Belmore Bulk Materials Pty Ltd[2024] ICQ 23

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Stone v Belmore Bulk Materials Pty Ltd & Ors [2024] ICQ 023
PARTIES:	STONE, MARK DOUGLAS (Appellant) V BELMORE BULK MATERIAL PTY LTD (First Respondent) SEARLE, TIMOTHY FRANCIS (Second Respondent)
CASE NO:	C/2023/18
PROCEEDING:	Appeal against decision of Industrial Magistrate
DELIVERED ON:	20 December 2024
HEARING DATE	25 August 2023
MEMBER:	Hartigan DP
HEARD AT:	Brisbane
ORDER:	The Appeal is allowed. The orders as to costs made on 4 May 2023 is set aside. The question of costs is remitted to the Industrial Magistrates Court to be heard and determined according to law by an Industrial Magistrate other than Industrial Magistrate Kennedy.
CATCHWORDS:	INDUSTRIAL MAGISTRATES – APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE AS TO COSTS – PARTICULARS – SUFFICIENCY OF REASONS – where the appellant commenced proceedings seeking orders convicting the respondents of breaches of the Mining and Quarrying Safety and Health Act 1999 (Qld) – where the respondents were acquitted of all charges – where the Industrial Magistrate ordered the appellant to pay the respondents' costs – where costs were awarded under s 158A of the Justices Act 1886 (Qld) – where it was determined that the case was one of ‘special difficulty, complexity or importance’ and a higher amount of costs was ‘just and reasonable’ under s 158B of the Justices Act 1886 (Qld) – where these costs were set at $394,361.05 – where expert evidence was relied upon – where admissibility of evidence was objected to – whether costs were ‘just and reasonable’ – whether the Magistrate’s reasons fully disclose the basis for the calculation of quantum – whether the quantum of costs were properly calculated with regard had to the scale under the Justices Regulation 2014 (Qld) sch 2 – whether adequate reasons given – where Industrial Magistrate found to not have provided sufficient reasons – where Industrial Magistrate found to not have properly dealt with objection to expert evidence – where reasons provided not indicative of matter being one of ‘special difficulty, complexity or importance’– where appeal is granted – matter remitted to the Industrial Magistrates Court.
LEGISLATION:	Acts Interpretation Act 1954 (Qld), s 44 Industrial Relations Act 2016 (Qld), s 569 Justices Act 1886 (Qld), ss 158, 158A, 158B, 159 Justices Regulation 2014 (Qld), r 19, sch 2 Mining and Quarrying Safety and Health Act 1999 (Qld), ss 6, 243 Uniform Civil Procedure Rules 1999 (Qld), r 702
CASES:	Cullinan v McMahon [2014] QDC 120 Clark v Ryan (1960) 103 CLR 486 Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 Hickey v Crime and Misconduct Commission [2008] QDC 240 Interclean Industrial Services Ltd v Auckland Regional Council [2000] 3 NSWLR 489 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Reed [2010] 1 CR App R 23 R v Ping [2006] 2 Qd R 69 R W Miller and Co Pty Ld v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 Schloss v Bell; Bell v Schloss [2016] ICQ 017 Senior Constable Sheehan v Leo [2016] QDC 131 Whitby v Stockair Pty Ltd & Anor [2015] QDC 79
APPEARANCES	Mr G. Rice KC and Ms R. Kirk counsel instructed by the Office of the Work Health and Safety Prosecutor Mr R. Perry KC instructed by Herbert Smith Freehills

Reasons for Decision

Introduction

[1]
Mark Douglas Stone ('the Appellant') appeals against an order for costs issued by an Industrial Magistrate.

[2]
The Appellant commenced a prosecution against Belmore Bulk Materials Pty Ltd ('the First Respondent') and Mr Timothy Searles ('the Second Respondent), the site senior executive, for offences under s 31 of the Mining and Quarrying Safety and Health Act 1999 (Qld) (‘MQSH Act') following an incident at Jacks Quarry which resulted in a fatal injury to a worker.

[3]
After a four day trial, before the learned Industrial Magistrate, the First and Second Respondents (‘the Respondents’) were each acquitted of the charges. The Respondents sought their costs of the prosecution proceeding and the learned Industrial Magistrate subsequently ordered the Appellant to pay the Respondent's costs in the amount of $394,361.05. The Appellant contends that the Industrial Magistrate erred in the awarding of costs.

[4]
Relevantly, the Appellant seeks, on appeal, to set aside orders 3 and 4 of the orders issued by the Industrial Magistrate on 10 May 2023 which are in the following terms:

3.
The Complainant is to pay the Defendants costs in the amount of $411,476.75, made up of:

a.
$394,361.05 in relation to the costs of the proceedings; and

b.
$17,115.70 in relation to the Defendants' application for costs.

4.
The Complainant is to pay the Defendants the amount of costs specified in 3 above within two months of the date of this order.

The grounds of appeal

[5]
On appeal, the Appellant contends^[1] that the Industrial Magistrate erred in:

holding that the opinions expressed in the affidavit of Mr Graham Robinson was admissible evidence on the question of costs and subsequently accepting those opinions in determining what costs were just and reasonable (‘appeal ground one’);

holding that the test of “special difficulty, complexity, or importance” set out under s 158B(2) of the Justices Act 1886 (Qld) (‘Justices Act') had been satisfied (‘appeal ground two’);

failing to have regard to the scale set out in the Justices Regulation 2014 (Qld) (‘Justices Regulation’) as a guide to the proper exercise of discretion for the purposes of s 158B(2) of the Justices Act (‘appeal ground three’); and

the exercise of discretion by awarding costs in favour of the Respondents that was not just and reasonable (‘appeal ground four’).

[6]
The Appellant’s written submission identifies that ground four is encapsulated in previous grounds. Consequently, no further regard will be had to appeal ground four.

[7]
The matters raised in the appeal grounds require consideration of the operation of the relevant statutory provisions.

Relevant Statutory Provisions

[8]
The objects of the MQSH Act^[2] are the protection of the safety and health of persons who may be affected by operations, by requiring the risk of injury or illness to be an acceptable level.

[9]
Offences against the MQSH Act are prosecuted summarily.^[3]

[10]
The Industrial Magistrates Court is a product of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) and its jurisdiction is identified by s 506 of the IR Act which relevantly states:

506
Magistrate’s jurisdiction

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

[11]
Section 234(1) of the MQSH Act confers jurisdiction upon the Industrial Magistrates Court as envisaged by s 506(1)(a) of the IR Act.

[12]
Section 569 of the IR Act is contained in Chapter 11, Part 7 entitled, “Offence Proceedings” and relevantly provides:

569 Where offence proceedings are to be heard and decided

(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.

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)

[13]
The reference in s 569 to a “magistrate” is a reference to an Industrial Magistrate.

[14]
Section 44 of the Acts Interpretation Act 1954 (Qld) provides that the Justices Act applies to prosecutions against the MQSH Act as follows:

44 Summary proceedings

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

a provision to the effect that a proceeding for the offence is to be heard and decided summarily;
a provision to the effect that a proceeding for the offence is to be heard and decided by or before justices or a magistrate …”

[15]
Part 6, Division 8 of the Justices Act sets out the power of an Industrial Magistrate to award costs.
[16]
Relevantly, s 158(1) of the Justices Act provides that when a Magistrate makes an order dismissing the complaint they make an “order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.”

[17]
Section 158A^[4] identifies various considerations which must be taken into account before an award of costs may be made against an unsuccessful complainant. It provides, relevantly:

158A Exercise of discretion in relation to an award of costs

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

whether the proceeding was brought and continued in good faith; and
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
whether the investigation into the offence was conducted in an appropriate way; and
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
whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
whether the defendant unreasonably declined an opportunity before a charge was laid—

to explain the defendant’s version of the events; or
to produce evidence likely to exonerate the defendant;

whether there was a failure to comply with a direction given under section 83A; and
whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
whether the defendant was acquitted on a charge, but convicted on another.

If an order for costs under section 158 is made against a complainant who is a police officer or public officer (within the meaning of this subsection), the clerk of the court is to give to the defendant a certificate signed by the clerk showing the amount of costs awarded.
Subject to subsection (5), the defendant is entitled to be paid by the State the amount shown in the certificate within 2 months after payment is claimed.
If an appeal against an order for costs is made under section 222—

payment of the amount shown in the certificate is stayed until the appeal is decided; and
payment is to be made of the amount (if any) ordered or confirmed by further order made on the appeal.

In subsection (3)—

public officer does not include—

an officer or employee of the public service of the Commonwealth; or
an officer or employee of a statutory body that represents the Crown in right of the Commonwealth; or
an officer or employee of a local government.

[18]
While s 158A operates to limit the discretion to award costs, s 158B operates to limit the quantum of costs which may be awarded. It provides:

158B Costs for division

In deciding the costs that are just and reasonable for this division, the justices 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.

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.

[19]
Finally, s 159 of the Justices Act provides that costs must be ordered in the following manner:

159 The sum allowed for costs to be specified in the conviction or order

The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction.

[20]
The scale to be applied when calculating the quantum of a costs order for the purpose of s 158B(1) of the Justices Act is contained in Schedule 2 of the Justices Regulation.^[5]

[21]
Relevantly, Schedule 2, Part 1, item 1 of the Justices Regulation identifies that the scale set out amounts up to which costs may be allowed. Item 1 relevantly states:

1 Scale sets out amounts up to which costs may be allowed

This scale sets out—

(a)
the only items for which costs may be allowed for part 6 , division 8 and part 9 , division 1 of the Act ; and

(b)
the amount up to which costs may be allowed for each item.

Note—

A higher amount for costs may be allowed under section 158B (2) or 232A (2) of the Act .

[22]
Item 2 confirms that an item listed in Part 2 covers all legal professional work, even if the work is done by more than one lawyer.

[23]
Item 3 provides that only necessary and proper costs may be allowed as follows:

3 Only necessary or proper costs may be allowed

A cost is to be allowed only to the extent to which—

(a)
incurring the cost was necessary or proper to achieve justice or to defend the rights of the party; or

(b)
the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.

[24]
Schedule 2, Part 2 of the Justices Regulation identifies what costs may be allowed for legal professional work. Part 2 is relevantly in the following terms:

	Work for hearing of complaint up to and including day 1
1	Instructions and preparation for the hearing, including attendance on day 1 of the hearing	up to $1,500.00
	After day 1
2	For each day of the hearing after day 1	up to $875.00
	Other court attendances
3	Court attendance, other than on the hearing of the complaint	up to $250.00

[25]
Schedule 2, Part 3 of the Justices Regulation identifies the disbursements that may be allowed to be claimed as follows:

Part 3 - Disbursements (including disbursements to witnesses and interpreters)

5 Disbursements, other than to witness for attending

Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.

6 Disbursements as allowance to witness for attending—defendant’s witnesses

An allowance paid, payable or that will be paid by the defendant to a witness to attend a proceeding may be allowed up to an amount equal to the amount of any comparable prosecution witness allowance that would be payable to the witness if the witness were a prosecution witness attending court to give evidence in a criminal proceeding.

7 Disbursements as allowance to witnesses for attending—prosecution witnesses

Costs allowed to the complainant may include an amount up to the amount required to reimburse a payment by the State of a prosecution witness allowance paid or that will be paid to prosecution witnesses attending the proceeding.

[26]
Section 243 of the MQSH Act provides:

243 Orders for costs

This section applies in relation to a proceeding for an offence against this Act.
A Magistrates Court may award a represented party for the proceeding costs of the representation.
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 in investigating, and preparing for the prosecution of, the offence.
This section does not limit the orders for costs the court may make.
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.

[27]
In Schloss v Bell; Bell v Schloss^[6] His Honour, Deputy President O'Connor (as he then was) considered the application of the discretion conferred by the Justices Act to order costs, in the following terms:

[28]
The power to award costs in respect of a summary hearing in the Industrial Magistrates Court are found in ss 158 and 158A of the Justices Act 1886.

[29]
In Latoudis v Casey, Mason CJ, McHugh and Toohey JJ wrote:

"…there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor."

[30]
In response to Latoudis v Casey, the Justices Act 1886 was amended to insert s 158A which placed a fetter on s 158.

[31]
McPherson JA in MacPherson v Commissioner of Taxation in dealing with s 158A wrote:

"In making his determination as to costs, the magistrate applied s. 158A of the Justices Act (the Queensland Act). That section was enacted shortly after the decision of the High Court in Latoudis v. Casey (1990) 170 C.L.R. 534, in which their Honours reviewed the principles governing the discretion to award costs in respect of unsuccessful proceedings for an offence that was conducted summarily. On the appeal before us, s. 158A was, on both sides, accepted as being a direct and speedy legislative response by State Parliament to the decision of the majority of their Honours in that case. The object evidently was to replace the principles adopted in Latoudis v. Casey with a series of statutory provisions amounting to a virtual codification of the leading factors to be considered in deciding whether costs should be awarded against a police officer or a public officer whose complaint is dismissed by justices."

[32]
Section 158 of the Justices Act 1886 (Qld) provides for the general power to award "just and reasonable" costs in favour of a defendant when a complaint is dismissed.

[33]
Section 158A(1) fetters the discretion in relation to a public officer such that a costs order may be made "only if the justices are satisfied that it is proper that the order for costs should be made". In determining whether it is proper to make the costs order, s 158(2) provides that the trial magistrate "must" take into account "all the relevant circumstances".

[34]
Davies JA spoke similarly about the limitation on the discretion in s 158A in Murray v Radford where his Honour said:

"There is no doubt that s 158A applied to this case because the complainant was a police officer. Under that section despite s 158(1) the magistrate may make a costs order such as the applicant says should have been made only if he is satisfied that it is proper that such an order should be made; and in so deciding he is obliged to take into account all relevant circumstances including but not limited to those enumerated in subsection (2). Section 158A is thus, plainly, a limitation on the discretion which s 158 permits to order costs against a complainant."

(Citations omitted)

[28]
As noted above, s 158B(2) of the Justices Act permits an uplift of costs above the amount allowed under the scale, 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.”

[29]
The construction of section 158B(2) was considered in Cullinan v McMahon.^[7] In that matter, Farr SC DCJ relevantly observed:

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”.

[30]
His Honour had further regard to the provision in Cullinan v McMahon (No 2)^[8] as follows:

That submission ignores the actual words used in ss 158B and 232A of the Justices Act, namely “just and reasonable having regard to the special difficulty, complexity or importance of the case”. The adjective “special” does not apply to, or restrict, the words “just and reasonable”. They apply to “difficulty, complexity or importance”. Properly construed, the discretion to award a higher amount for costs as provided for in the statutory provisions, is enlivened where: (a) special difficulty, complexity or importance exists; and (b) it is just and reasonable to make a higher award having regard to the identified special difficulty, complexity or importance.

[31]
In Senior Constable Sheehan v Leo^[9] Robertson DCJ considered the meaning of “special difficulty” as follows:

Although her Honour’s reasons referred to above are somewhat equivocal about the issue of “special difficulty”, I agree with the appellant that in stating that the s 27 issue takes “it somewhat out of the realm of the ordinary”, her Honour misdirected herself as to the threshold that was required by reference to authority. It may be unusual for a s 27 defence to be raised in the Magistrates Court, but, in this case the issue was greatly simplified by the approach of the parties. The trial lasted less than a day. The prosecution evidence took 9 minutes. Dr Georgious gave evidence for 59 minutes most of which was in cross-examination. There were no objectively especially difficult aspects of the case. “Unusual” is not synonymous with “difficulty” and, in any event, this was not a case that involved special difficulty, including having regard to the reversal of onus issue that does arise from time to time e.g. s 129(1)(c) of the Drugs Misuse Act 1986.

[32]
In Schloss, the then Deputy President O'Connor considered^[10] the phrase “special difficulty, complexity or importance” by reference to, inter alia, Whitby v Stockair Pty Ltd & Anor^[11] as follows:

In Whitby v Stockair Pty Ltd & Anor, Farr SC DCJ had to consider a conclusion by the Magistrate that the case against each defendant was of special importance because the defendants' reputations "were on the line" and "at stake" and that a finding of guilt would have caused "immeasurable damage" to their reputations. Farr SC DCJ affirmed his earlier decision in Cullinane v McCahon where he said:

"... I accept that this case was important to the appellant, as no doubt every criminal case is to every defendant. To invoke special importance however, the case must involve more than the charge merely relating to a defendant in his/her professional capacity. 'Special importance' is clearly a reference to the importance of the case generally, in terms of questions of law or public interest (this list is not exhaustive) and is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her."

[33]
His Honour ^[12] also considered the case of Interclean Industrial Services Ltd v Auckland Regional Council^[13] in the context of considering the phrase “special difficulty, complexity or importance”. His Honour relevantly observed:^[14]

To assist the Court in determining the phrase "special difficulty, complexity or importance", the Court was referred to the often cited case of Interclean Industrial Services Ltd v Auckland Regional Council ("Interclean"). In that matter, the Auckland Regional Council sought higher costs after Interclean Industrial Services Ltd pleaded guilty to two criminal charges under the Resource Management Act 1991. As with the present case, an award of costs in excess of scale was sought on the basis of "special difficulty, complexity or importance". On appeal, the High Court held that there was no special difficulty or complexity in the case, the defendant had pleaded guilty and the issues raised by both the prosecution and defence did not go significantly beyond those raised in prosecutions generally. Randerson J said:

"As observed by Tipping J in T v Collector of Customs (High Court, Christchurch, AP 167/94, 28 February 1995) at p 2:

'The use of the word "special" when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered. Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him.'"

(citations omitted).

[34]
Accordingly, to be satisfied that s 158B(2) is enlivened, the Court must be satisfied that special difficulty, complexity or importance exists and that it is just and reasonable to make a higher award having regard to the identified special difficulty, complexity or importance. For a case to be found to be one involving special difficulty, complexity or importance, those factors must be greater than ordinarily encountered.

The decision of the Industrial Magistrate

[35]
The hearing with respect to costs was held before the learned Industrial Magistrate on 22 October 2022 and an ex-tempore judgment was delivered on 4 May 2023.

[36]
The issues to be determined by the Industrial Magistrate included, inter alia, whether costs should be awarded pursuant to s 158 of the Justices Act. In considering whether to award costs against a prosecutor, the Industrial Magistrate must have regard to s 158A of the Justices Act. When considering the quantum of the costs to be awarded, the Industrial Magistrate must have regard to s 158B of the Justices Act.

[37]
Particular to this matter, the Industrial Magistrate was also required to determine the Appellant’s objection to the admissibility of the evidence of Mr Graham Robinson, cost assessor, relied on by the Respondents.

The Reasons

[38]
At the commencement of his reasons, the Industrial Magistrate correctly identified the relevant statutory provisions that he must have regard to in consideration of the matter:^[15]

It is appropriate here to consider the relevant Justices Act provisions, that is: section 158, 158A, and 158B. I will read these. I know you have gone through them. But, I am sorry, I have to tell you what I consider to be the relevant parts:

158 Costs on dismissal

(1)
When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

158A Exercise of discretion in relation to an award of costs

(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.

(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—

(a) to (i), and I have gone through them already, so I won’t bore you any further. And, as I have just sort of suggested, it is noted that this list is not exhaustive, so there is (a) to (i) plus whatever else is a relevant circumstance.

158B Costs for division

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

(a)
for an item allowed for this division under a scale of costs prescribed 10 under a regulation; and

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

(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.

Schedule 2 of the Justices Regulation is also relevant here. But I won’t read this in full, but see Part 3 only. Part 3 refers to disbursements and it says at says at 5:

5 Disbursements, other than to witness for attending

So such costs have to be “just and reasonable” section 158 subsection (1), only ordered “if it is proper” 158A(1), and considering section 158A(2) factors and all relevant circumstances and if it is “just and reasonable having regard to the special difficulty, complexity, or importance of the case”, that is section 158B(2). I have read numerous cases including, and I will give you the citations because it is proper: Bell v Townsend and Ors [2014] QMC 30; Bell v Hendry & Ors [2014] ICQ 18; Whitby v Stockair Pty Ltd & Jackson [2015] QDC 79; Fletcher v Demag Cranes and Components Pty Ltd [2020] QMC 9; Seiffert & Ors v Commissioner of Police [2021] QCA 170; Guilfoyle v Kouzoukas [2022] QDC 8; Stone v Thomas[2022] ICQ 30.

Together with referring to those cases referred to in the reply’s submissions on costs on behalf of the complainant and contained in the affidavits of Mr Graham Robinson. So that is all those cases that I have considered.

[39]
The Industrial Magistrate then proceeded to refer to each of the decisions cited in the above passage and quoted from relevant extracts of those decisions in his reasons.^[16]

[40]
However, other than the recitation of the extracted passages, no further analysis of those cases or the relevant principles derived from them was conducted or applied to the circumstances of the matter.

[41]
His Honour then turned to consider whether the case was one of “special difficulty, complexity or importance.” His Honour did so by firstly listing features of the hearing as follows:^[17]

Importance of the case

Few cases refer directly to “special difficulty or complexity”. In our case, Adam Malone died. There were 14 witnesses, 45 exhibits, a four day trial, and Senior Counsel for the defence and two juniors for the complainant but then one of whom became Senior Counsel between then and October last year.

[42]
His Honour then made the following finding:^[18]

And in all the circumstances, I am satisfied that due to the special importance of the case and dare I say, complexity and special difficulties, I find that a higher amount of costs is proper and just and reasonable. I say here that my mind did not turn to “the guilty party” until all the evidence, exhibits, and submissions were considered and then only after a great deal of consideration. In other words, it did not pop into my mind straightaway that here we have got separate parties, let’s go with it that way. Because it took a huge amount of time and effort to get this done in the first instance in April last year.

In other words, the final decision took a great deal of effort due to special importance, difficulty and complexity.

[43]
The objection to the receipt of Mr Robinson’s report into evidence was not directly dealt with. Rather, His Honour admitted Mr Robinson’s affidavit into evidence as follows:^[19]

With respect, I quote Magistrate Preston at paragraph 45:

I consider that Mr Robinson is experienced and expert in legal costs law assessment and taxation.

And accordingly, I admit his affidavit sworn on the 8th of July 2022 and the exhibits thereto and it is marked exhibit 1.

[44]
It is not apparent from the terms of the reasons what decision the quote from Magistrate Preston is extracted from.

[45]
The learned Industrial Magistrate then proceeded to awards costs to the Respondents on the following basis:^[20]

I will adopt some of Mr Robinson’s headings.

The Level of Counsel Briefed

I accept that it was both necessary and proper to brief senior counsel and note that the complainant briefed two junior counsel, and as I have already said, one became senior between the hearing in October 2022.

Counsels’ Fees

Mr Robinson considered the Victorian Supreme Court Scale and he said why he did that in 8 October last year. The scale of $9060 per day for senior counsel and suggested that $8000 per day as invoiced by Mr Perry was:

Generally considered to be allowable on a standard basis for work conducted by Senior Counsel in Queensland.

The total of $171,540. 35

Experts’ Fees

Without going over Mr Robinson’s reasoning on pages 8 to 10 of his report, I accept that there [sic] “reasonably incurred and are paid or payable” in the sum of $60,665. 40

Travel and Accommodation Etcetera

The total involved is 34,471.85 and I agree with that.

Solicitors’ Fees

And then you see Mr Robinson reported at pages 11 to 17, the total involved by him was 127,684.20. In Mr Robinson’s opinion, the appropriate allowances are solicitor’s fees 127,684.20. Disbursements, counsels’ fees $171,540. Expert’s fees, $60,665. Travel etcetera, 34,471.85, a total of $394,361.05. Now, I also agree with his figure for the cost of the application to $17,115.70. The orders will therefore be the complaints against Timothy Francis Searle and Belmore Bulk Material Pty Ltd are struck out or dismissed. The complainant pay the defendant’s costs in the sum of $394,361.05. And plus the cost of the application of $17,115.70. Anything else?

MR PERRY: The only correction I would make is just at the end there you said $394. $394,000.

HIS HONOUR: Did I say 394?

MR BALLARD: You did, your Honour.

HIS HONOUR: Sorry, $394,361.

MR PERRY: That’s it.

HIS HONOUR: And 5 cents.

…

Adequacy of reasons

[46]
As will become apparent in the analysis of the grounds of appeal, there is also a contention throughout the Appellant’s submissions that the Industrial Magistrate erred in failing to provide adequate reasons.

[47]
The Appellant’s submissions with respect to the adequacy of the reasons included the following:

12.
The learned magistrate ruled that Mr Robinson's evidence was admissible, apparently on the basis that he was an 'expert in legal costs law assessment and taxation'. Every opinion expressed by Mr Robinson must have been accepted in its entirety since the award of costs was in complete accordance with those opinions.

13.
However, his Honour did not state a conclusion, either generally or with respect to individual amounts, that would satisfy the requirement of s 158(1) that the amounts awarded must be just and reasonable in his view. His honour did not manifest that he had undertaken an independent exercise of determining what was just and reasonable. Rather, he merely recited Mr Robinson's opinions on what the 'appropriate allowances' in each category were.

(citations omitted).

[48]
For the reasons identified further below, I have found that the learned Industrial Magistrate failed to provide adequate reasons and consequently was in error.

[49]
This error alone results in the Appellant being successful on appeal. However, I have also found that the appeal succeeds on other grounds.

Appeal Ground One

[50]
As noted above, ground one contends that the Industrial Magistrate erred in holding that the opinions expressed by Mr Robinson were admissible evidence on the question of costs and subsequently accepting those opinions in determining what costs were just and reasonable.

[51]
The Appellant approached ground one by dividing it into the following components:

ground 1(a) – admissibility of Mr Robinson’s opinions; and

ground 1(b) – reliance on Mr Robinson’s opinions.

Relevant principles with respect to the admissibility of expert evidence

[52]
A number of principles have been developed with respect to the receipt of expert evidence.

[53]
Relevantly, an expert will not be permitted to give evidence of matters which the tribunal of fact could determine for themselves or to formulate the expert’s empirical knowledge as a universal law.^[21] The onus of establishing the conditions of admissibility of such material rests on the tendering party.^[22]

[54]
In Makita (Australia) Pty Ltd v Sprowles,^[23] Heydon JA summarised the following principles with respect to the tendering of expert evidence:^[24]

[85]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.

[55]
In R v Ping^[25] Chesterman J observed as follows:

[43]
Mr Jones was a properly qualified clinical psychologist. He was, relevantly, an expert whose opinion might be admitted into evidence. Before it could be accepted, however, the factual basis for the opinion had to be explained to the court. Mr Jones had to recount the facts on which he based his opinion. To do that he had to give in evidence the history he took from the complainant about his symptoms and what led up to them. Mr Jones’ rehearsal of those facts would not prove them but once he had said what he understood the facts to be on which he formed his opinion that opinion could be provisionally admitted into evidence. If the facts were proved by someone who had knowledge of them, in this case the complainant, the opinion would be admitted unconditionally. It the facts were not proved the condition on which the admission depended would be unsatisfied and the opinion could not be acted on by the tribunal of fact.

[56]
The application of these principles will be considered further with respect to grounds 1(a) and 1(b).

Ground (1)(a) – admissibility of Mr Robinson's opinions

[57]
The only evidence tendered on behalf of the Respondents on the costs application was an affidavit of Mr Robinson which had annexed to it several cost assessment reports prepared by Mr Robinson.

[58]
Before the Industrial Magistrate, the Appellant challenged the admissibility of Mr Robinson’s evidence.^[26]

[59]
In particular, the Appellant contended that Mr Robinson's reports were inadmissible on the basis that:

he did not have the requisite expertise to assess and determine costs in a criminal matter under the Justices Act and failed to have regard to the discretion required by the Justices Act; and

he advanced his opinion on the extent to which the legal standard of whether the costs were ‘just and reasonable’ had been met in circumstances where the court is equipped to draw its own conclusion on this matter.

[60]
The Appellant accepted Mr Robinson’s expertise with respect to the assessment of costs in taxation and civil matters. However, the Appellant objected to Mr Robinson’s expertise insofar as it was contended his expertise did not extend to determining costs in criminal matters under the Justices Act.

[61]
It was submitted by the Appellant, that the determination of costs in criminal matters under the Justices Act is fettered in various ways not evident in civil matters. In this regard, it was submitted that the use of the words ‘just and reasonable’ in s 158 of the Justices Act and the requirement to have regard to the Justices Regulation Scale as a guide, even when the uplift test applies, distinguishes the two areas with respect to costs. The Appellant further submitted that Mr Robinson's failure to have regard to such requirements exposed his lack of expertise in this area.

[62]
During the course of cross-examination before the Industrial Magistrate, Mr Robinson accepted that he had conducted one other matter which could be said to be similar to this matter insofar it was an assessment of costs under the Justices Act.

[63]
Accordingly, one of the matters to be determined before the Industrial Magistrate was whether Mr Robinson's expertise as a cost assessor in a criminal matter applying the Justices Act and Justices Regulation could be accepted in circumstances where it was objected to by the Appellant on the grounds identified above.

[64]
A second matter to be determined by the Industrial Magistrate was the objection made by the Appellant to the opinion expressed by Mr Robinson within the report. Relevantly, the Appellant contends that Mr Robinson sought to advance his opinion on the extent to which the legal standard had been met and in doing so swore to the issue. It was further contended by the Appellant that Mr Robinson misapplied the relevant test under the Justices Act.

[65]
The extent to which the learned Industrial Magistrate dealt with the objections to the admissibility of Mr Robinson's evidence, as identified above, was as follows:

With respect, I quote Magistrate Preston at paragraph 45:

I consider that Mr Robinson is experienced and expert in legal costs law

15
assessment and taxation.

And accordingly, I admit his affidavit sworn on the 8th of July 2022 and the exhibits thereto and it is marked exhibit 1. I will adopt some of Mr Robinson’s headings.

[66]
The Industrial Magistrate proceeded to admit both of Mr Robinson's affidavits including the two reports into evidence.

[67]
The admissibility of Mr Robinson's evidence, in whole or in part, was a matter identified by the parties below as requiring the Court’s consideration and determination.

[68]
The Industrial Magistrate’s reasons reveal no analysis or consideration of each of the objections to Mr Robinson’s evidence raised by the Appellant. Further, there was no consideration of the application of the principles, identified above, relevant to the admissibility of expert evidence.

[69]
In such circumstances, it is appropriate to consider what constitutes the giving of adequate reasons. In Drew v Makita (Australia) Pty Ltd [2009]^[27] Muir JA (with whom Holmes JA and Daubney J agreed) stated as follows:

[58]
The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with "a justifiable sense of grievance"^[4] through not knowing or understanding why that party lost;^[5] to facilitate or not frustrate a right of appeal;^[6] as an attribute or incident of the judicial process;^[7] to afford natural justice or procedural fairness;^[8] to provide "the foundation for the acceptability of the decision by the parties and the public" and to further "judicial accountability".^[9]

[59]
The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and "the function to be served by the giving of reasons."^[10] For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:^[11]

"… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted."

[60]
McHugh JA's view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but "… it is necessary that the essential ground or grounds upon which the decision rests should be articulated."^[12]

[61]
Strbak v Newton,^[13] Samuels JA said:

"…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the claim of reasoning which authorises the judgment which is given."

[62]
Woodward J, in Ansett Transport Industries (Operations) Pty Ltd Wraith,^[14] said that the decision maker:

"…should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions."

[63]
Meagher JA in Beale v Government Insurance Office of NSW stated these propositions:^[15]

"…there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."

[64]
Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three "fundamental elements" rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases.

[70]
Whilst this was not a matter involving a conflict of expert evidence, it was a matter wherein the expert evidence was challenged on several bases during the hearing.

[71]
The Industrial Magistrate does not identify the reasoning behind the adoption of the quote from Magistrate Preston and, further, the logic of the decision is not apparent, including the reasoning for the decision in the context of the objection to Mr Robinson’s expertise in costs assessment of criminal matters under the Justices Act.

[72]
The Industrial Magistrate’s reference to Magistrate Preston’s observation that he considered Mr Robinson as experienced and an expert in legal costs law assessment and taxation does not assist. It is not apparent whether Magistrate Preston made such a determination in respect of a challenge to Mr Robinson’s expertise to assess costs under the Justices Act. Further, putting aside the failure to cite the relevant authority from where Magistrate Preston’s quote originated, there is no analysis or consideration of Mr Robinson’s expertise in circumstances where Mr Robinson’s expertise and the opinions expressed had been objected to. In the absence of such consideration and analysis, the relevance of Magistrate Preston’s finding that Mr Robinson is an expert in costs assessment is of limited value.

[73]
Further, the reasons do not address the objection to the opinions expressed by Mr Robinson as to why he contends the costs referred to in his report are ‘just and reasonable’ in circumstances where it was contended before the Industrial Magistrate that Mr Robinson misapplied the relevant test under the Justices Act.

[74]
The objection to Mr Robinson's expression of opinion was twofold. Firstly, it was objected to in circumstances where it was submitted that Mr Robinson swore to the issue to be determined by the Court.

[75]
Secondly, the admissibility of Mr Robinson's opinion was objected to on the basis that he erred in his conclusion as to what amounted to ‘just and reasonable’ costs and did not have proper regard to the Court’s discretion to award costs as set out in the Justices Act and the limitations imposed on the exercise of the discretion to award costs having regard to policy considerations with respect to costs in the criminal jurisdiction.

[76]
In this regard, the Appellant admitted that costs may only be awarded to the extent that the Industrial Magistrate finds it ‘just and reasonable’ to do so. The Appellant contends that this is the relevant test or legal standard to be determined by the Court. It is incumbent upon the Court to draw its own conclusion with respect to the relevant legal test or standard. It was submitted, that this requirement is manifest not only by the requirement to act judicially but by the express words of section 158 of the Justices Act permitting only an award of “such costs as to seem just and reasonable”. It was further submitted that the determination must be based on evidence before the Court informed by the applicable law, here being ss 158, 158A and 158B of the Justices Act and the policy considerations referable to the awarding of costs in criminal matters.^[28]

[77]
Mr Robinson’s report ultimately concludes that the costs sought for solicitors’ professional fees was ‘just and reasonable’. He does so by giving the words ‘just and reasonable’ their ordinary meaning and concludes that the words ‘necessary and proper costs’ as referred to in r 702 UCPR costs, are also just and reasonable costs.

[78]
The Appellant contends that Mr Robinson’s reasoning misapplied the statutory test as to what is ‘just and reasonable’ under s 158.

[79]
The Appellant contended that it was for the Industrial Magistrate to conclude whether the awarding of costs was ‘just and reasonable’. In support of its position in this regard, the Appellant referred to the following passage from R W Miller and Co Pty Ld v Krupp (Australia) Pty Ltd:^[29]

The law attempts rules confining the giving of opinion evidence. One such rules has been expressed in the terms that the expert may not give an opinion upon an ultimate fact in issue. It is almost impossible for a rule in those terms to be applied, there are many cases in which an expert has given such an opinion, and a rule in those terms has been doubted in the High Court: see Murphy v The Queen (1989) 167 CLR 94 at 110, 126-127. A lesser restriction has been recognised, that the expert may not give an opinion on an ultimate issue where that involved the application of a legal standard – for example that the defendant was negligent, that a risk was reasonably foreseeable, that a testator possessed testamentary capacity, that a representation was likely to deceive or that a publication was obscene. This view has been particularly espoused by Glass JA, judicially in Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 657-676 and R v Palmer [1981] 1 NSWLR 209 at 214, and extra-judicially in for example, Glass, “Expert Evidence” (1987) 3 Aust Bar Rev 43 at 48-49.

[80]
Consequently, the Appellant’s objection to the admissibility of Mr Robinson’s opinion, on the basis that it was swearing to the issue, was a matter that was required to be determined by the Industrial Magistrate.

[81]
The Appellant contended that proper regard had not been had by Mr Robinson to the policy considerations relevant to the exercise to award costs in the criminal jurisdiction.

[82]
It is accepted that the legislature has limited discretion to award costs to successful defendants in criminal prosecutions as a matter of policy.^[30]

[83]
Accordingly, the Industrial Magistrate was required to consider the objections to the expressions of opinion contained in Mr Robinson's report including the objection to the opinion he expressed as to whether the costs were just and reasonable in circumstances where the Appellant contended that proper regard had not been had to the relevant policy considerations.

[84]
In such circumstances, the failure to address and deal with the separate challenges to Mr Robinson’s opinion raised by the Appellant provides no indication as to whether the Industrial Magistrate considered each of the separate objections raised, let alone reveal his analysis and reasons for seemingly dismissing the objections.

[85]
Put simply, it is not apparent from the reasons why the challenges to Mr Robinson's expertise and the opinions he expressed within the report were dismissed. The reasons consequently were insufficient. This was an error.

Ground 1(b) – reliance on Mr Robinson's opinions

[86]
The Appellant contended that distinct from the question of the admissibility of Mr Robinson’s evidence, there were errors involved in the learned Magistrate’s acceptance of Mr Robinson’s opinions with respect to various categories of costs.

[87]
The relevant categories of costs identified by the Appellant were solicitors’ fees, Counsel’s fees, expert’s fees and disbursements.

[88]
The Appellant’s complaints with regard to these categories of costs can be summarised as follows:

the learned Magistrate did not use the scale in the Justices Regulation as a guide in the calculation of quantum; and

the learned Magistrate did not have evidence before him to form an independent view as to allow the Court to determine if the particulars claimed for costs were just and reasonable.

Solicitors’ fees

[89]
For ease of reference, the passage of the reasons in which the Industrial Magistrate dealt with the claim for solicitors’ fees is as follows:^[31]

Solicitors’ fees

(emphasis added)

[90]
It is apparent from the reasons that the Industrial Magistrate had regard to Mr Robinson's opinion with respect to what he considered to be the appropriate sum for solicitors’ fees. However, after referring to Mr Robinson's opinion, the Industrial Magistrate does not then undertake his own independent assessment with respect to solicitors’ fees. Relevantly, the learned Industrial Magistrate does not express his own opinion as to the appropriate allowance of solicitors’ fees. It is left to assume the Industrial Magistrate accepted Mr Robinson’s opinion as to the quantum to be awarded for solicitors’ fees. The quantum of solicitors’ fees and the method adopted to assess those fees was a matter that was required to be determined by the Industrial Magistrate. As such, this passage also suffers from a failure to properly disclose the leaned Industrial Magistrates reasons with respect to the assessment of solicitors’ fees.

[91]
Further, given the Industrial Magistrate ultimately awarded a quantum amount for solicitors’ fees which is the same as the amount calculated by Mr Robinson, it is assumed, given the particular way in which Mr Robinson calculated those fees, that the Industrial Magistrate relied on Mr Robinson’s methodology for calculating the quantum of fees.

[92]
The methodology for the assessment undertaken by Mr Robinson is stated in his report as follows:

…

8.20.
The appropriate scale in this case is the Magistrates Court scale for amounts over $50,000.00. For attendances by a solicitor involving skill or legal knowledge, the hourly rate is $258.00 (excluding OST). I have sought and been provided with the number of hours worked on this file by all solicitors regardless of level within the firm. The answer is 707 hours (rounded)

8.21.
Multiplying the number of hours (707) by the scale rate applicable to attendances in the Magistrates Court per hour ($258.00) yields the result of $182,406.00. By adopting this approach, any influence of unduly high rates being charged by the solicitors is completely eliminated. Although one cannot be certain unless the file is assessed on an item by item basis, in the usual case, what remains after adopting this procedure are costs which comply with the qualification that they be "necessary or proper" costs to qualify to be allowed under s 3(a) Part 1 of Schedule 2 of the Regulation.

8.22.
There is still one further calculation to be made in recognition that this sum of $182,406.00 would be the amount charged to the Defendants if scale rates are applied. The final calculation is to reflect the fact that on a standard (party and party) assessment, some items would be disallowed or reduced because they would be regarded as solicitor and client items. In over 35 years of experience of practising in the law of costs, I have found that an appropriate multiplier to effect this moderation is 70%. The end result of these adjustments is, in my view, quite conservative when it is borne in mind that had this litigation been conducted in the Supreme Court, an allowance of some 25% to 30% would have been added for general care and conduct. I have not applied any uplift for general care and conduct, consistently with taking a quite conservative approach.

8.23.
The resulting amount is $127,684.20. A check may be made by comparing the figure of $127,684.20 which I have calculated with the amount of $392,120.2 6 actually paid by the Defendants to their solicitors. The answer is 32.6% of the total.

…

8.34.
If the submissions above which contended that the sum of $126,059.00 represented the costs incurred which were “necessary or proper” to defend the Defendants’ rights, then giving the ordinary meaning to “just and reasonable” leads to the inexorable conclusion that an amount of $126,059.00 as the allowance for solicitor’s professional fees is the appropriate sum.

(citations omitted).

[93]
From the above, it is apparent that in proposing that an amount of $127,684.20 be awarded for solicitors’ fees, Mr Robinson:

proposed an amount be awarded for solicitors’ fees higher than the amount allowed pursuant to the scale in the Justices Regulation;

did not use the scale in the Justices Regulation as a guide, even when applying the uplift;

allowed for costs by using the Magistrate Court Scale for civil matters for amounts over $50,000;

sought and subsequently accepted, the information provided by the Respondent’s solicitors that the number of hours worked by solicitors on the file equated to 707 (rounded) hours; and

concluded that the words ‘necessary and proper’ in terms of the costs that were incurred equated to the ordinary meaning of ‘just and reasonable’.

[94]
Even in circumstances where the Court has determined that it is just and reasonable to award a sum in excess of the scale, the scale in the Justices Regulation must be used as a guide in the calculation of the quantum of costs above the scale.^[32]

[95]
Typically, the courts have done so by applying a multiple to the amount disclosed under Justices Regulation scale. In this matter, Mr Robinson did not adopt the approach typically taken by the courts. Rather, Mr Robinson adopted the Magistrate Court Scale above $50,000 as the basis for the costs awarded. Given the quantum that was awarded for solicitors’ fees, it is assumed that the Industrial Magistrate accepted Mr Robinson’s adoption of the Magistrates Court Scale for civil matters above $50,000 as a basis to calculate the Solicitor’s fees.

[96]
No explanation is provided by the Industrial Magistrate as to why he considered the adoption of the Magistrates Court Scale for an amount over $50,000 to properly reflect what is just and reasonable having regard to the special difficulty, complexity or importance of a case.

[97]
It was an error to adopt Mr Robinson’s methodology of using the Magistrates Court Scale for an amount over $50,000 in these circumstances.

[98]
In addition to the error to the approach taken, there is no indication that the Industrial Magistrate had regard to or considered the items under the scale that were allowed for in Part 2, Sch 2 of the Justices Regulation for legal work. As a consequence, the Industrial Magistrate has not had regard to the scale as a guide in the assessment of costs.

[99]
The failure to consider these matters is exacerbated as the Industrial Magistrate has seemingly accepted that the 707 hours claimed to be worked on the file by the Respondent’s solicitors was proper and necessary. However, other than Mr Robinson asserting in his report that those number of hours were the hours provided to him by the Respondent’s solicitors and were necessary and properly incurred, there is no admissible evidence that the work claimed was undertaken.

[100]
In the absence of having any evidence before him as to the nature of the work undertaken in the 707 hours claimed, the Industrial Magistrate was unable to form a view based on evidence as to whether the costs were necessary and properly incurred.

[101]
Whilst Mr Robinson undertook a process in which he described to be ameliorating any potential unduly high hourly rate charged by the Respondent’s solicitors he, however, operated on the assumption that 707 hours were appropriately claimed.

[102]
Consequently, there was no admissible evidence before the Industrial Magistrate which supports the claim for solicitors’ fees. As noted above, Mr Robinson asserts that he was provided information from the Respondents’ solicitors that 707 hours were worked on the file. This information, or any other information in support of the claim, was not sought to be proved and consequently there was no admissible evidence before the Industrial Magistrate with respect to the claim.

[103]
It is not the case that the Industrial Magistrate needed an itemised bill of costs before him, but there should be some admissible evidence before the Court supporting the claim. Typically, a party making a costs application will seek to rely on a solicitor’s affidavit setting out the factual matters relevant to the costs application.

[104]
As a result, there was no independent assessment undertaken by the Industrial Magistrate, using the scale as a guide, to determine whether the number of hours claimed for legal work was necessary and properly incurred (see item 3 of Schedule 2).

[105]
Finally, Mr Robinson conflated the words ‘necessary and proper’, with the words ‘just and reasonable’. In doing so he relied on the coincidence of language between s 3(a), Part 1 Schedule 2 of the Justices Regulation with r 702(2) of the UCPR.

[106]
However, item 3(a) as noted above, operates in the context of the application of the scale and ensures a cost is to be allowed only to the extent to which incurring the costs was necessary or proper to achieve justice or defend the rights of the party.

[107]
Rule 702(2) prescribes that when assessing cost on a standard basis a costs assessor must allow all costs necessary a proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.

[108]
This is a distinct consideration to determining whether awarding an uplift is “just and reasonable having regard to the special difficulty, complexity or importance of the matter.”

[109]
As a consequence, the learned Industrial Magistrate erred by relying on Mr Robinson’s flawed method of assessment.

Counsel’s fees, expert’s fees and disbursements

[110]
Secondly, the Appellant contends that the learned Industrial Magistrate erred in the acceptance of Mr Robinson’s opinions with respect to the quantum of costs for Counsel fees, experts’ fees and disbursements, in the absence of evidence supporting the sums claimed.

[111]
In this regard, at the conclusion of his first report, Mr Robinson set out the information and documentation which had been provided to him from the Respondent's legal representatives. Mr Robinson lists 23 separate categories of information and documentation including, but not limited to, invoices for legal fees, Counsel fees, experts' fees, transcript costs, brief to Counsel, brief to the various experts and brief to Mr Robinson.

[112]
Relevantly, the list provided did not included invoices for travel, accommodation, and other expenses although these categories may have been included in the brief to Mr Robinson.

[113]
The documents and information listed by Mr Robinson were not attached to his expert report nor was there any other attempt, including by way of a solicitor's affidavit, to put the evidence of the information regarding those costs before the Industrial Magistrate.

[114]
Specifically, with respect to Counsel’s fees there was no evidence before the Industrial Magistrate as to the basis upon which the fees amounted to the total claimed. Whilst the Appellant acknowledges that the learned Industrial Magistrate had knowledge of Counsel’s appearances before the Court for the four day hearing, the total claimed for Counsel’s fees appear to have gone beyond those appearances.

[115]
Mr Robinson referred to the following table as to the rates and amounts charged by Queen's Counsel:

Date of Tax Invoice	Daily Rate5 $	Amount of Invoice (Excluding GST) $
20.12.2019	8,000.00	12,000.00
15.12.2020	8,000.00	16,000.00
12.02.2021	8,000.00	16,000.00
13.04.2021	8,000.00	4,000.00
07.05.202 I	8 ,000.00	10,000.00
20.05.2021	8,000.00	8,000.00
05.11.2021	8,000.00	80,000.00
18.01.2022	8,000.00	24,000.00
28.04.2022	8,000.00	1,540.00
TOTAL		$171,540.00

[116]
Mr Robinson expresses the following opinion with respect to Counsel fees:

5.3.4.
From my experience in working in the law of costs in Queensland for over 35 years, I have concluded not only that it was “necessary or proper” to brief Queens Counsel but that the rates charged were reasonable and reasonably incurred.

[117]
It appears the Industrial Magistrate accepted Mr Robinson’s opinion despite Mr Robinson providing no explanation for the quantum of the total of the invoice. Relevantly, Mr Robinson’s expresses a view about the rates charged as being reasonable but says nothing about the number of days claimed or the legal work performed. In any event, it was incumbent upon the Industrial Magistrate to form an independent view based upon admissible evidence about such matters and also that such costs are just and reasonable having regard to the special difficulty, complexity or importance of the matter. He failed to do so and consequently, was in error.

[118]
The Respondent sought to recover the costs of disbursements including the costs associated with engaging experts.

[119]
As noted above, Sch 2, Part 3 of the scale deals with disbursements and what may be allowable under the scale. The Industrial Magistrate has not considered the operation of Sch 2, Part 3 in the context of the disbursements claimed in this matter.

[120]
In awarding disbursements, the Industrial Magistrate did not commence his assessment by using the scale as a guide and, as above, accepted Mr Robinson’s assertion as to what disbursements were claimed.

[121]
The assertions made and relied on by Mr Robinson, and subsequently, the Industrial Magistrate were not proved in admissible form. Relevantly, there is no evidence before the Court as to who engaged in the relevant travel and when that travel was taken.

[122]
With respect to the expert’s fees, it appears from the cross-examination of Mr Robinson^[33] that in forming his opinion he had regard to the briefing letter provided by the Respondent’s legal representatives. The briefing letter was also not in evidence before the Industrial Magistrate.

[123]
Mr Robinson referred to the following table of fees paid to the experts engaged by the Respondents as follows:

Name of Expert	Rate per Hour (Excluding GST) $	Amount Paid (Excluding GST)
Dr Paul Carnavas	375.00	51,290.00
Scanhub		5,175.00
George Rechnitzer & Assoc Pty Ltd	350.00	4,200.00
TOTAL		$60,665.00

[124]
Other than the recording of the payment of the invoices to the experts, the Industrial Magistrate had no particularised information or admissible evidence as to the sum claimed for experts.

[125]
Finally, with respect to the claim for other disbursements, the relevant invoices, particularly with respect to the travel component of that claim, which totalled $20,271.94, was not before the Court nor were there any other attempts to put that evidence before the Industrial Magistrate. Whilst it was noted by Mr Robinson that the claim included accommodation, car hire, air transport no further attempt to particularise or itemise the claim was made.

[126]
Mr Robinson included a table of the disbursements said to be incurred and subsequently paid as follows:

7.4.
The total of disbursements under this head is $33,829.46. Particulars appear in the schedule below.

Description	Amount
Travel (including accommodation, car hire, taxis etc)	20,271.94
Transcripts (including cost of obtaining transcript of another relevant case)	11,828.24
Courier services	717.80
Cost of Scanhub hiring spheres for 3D laser scan	550.00
Queensland Government application under Rig ht to Information provisions	517.15
Printing and copying court documents	368.50
Cost of three hard drives	160.91
Search fees	27.00
ASIC fees	25.86
External photocopying	4.45
TOTAL	$34,471.85

[127]
Mr Robinson expresses an opinion that each of the disbursements were reasonably incurred and should be allowed on a standard basis of assessment. He does so in general terms having regard to the following matters:

7.1.
I refer again to the provisions of the Regulation from which I have quote at paragraph 6.1.

7.2.
The quarry at which the incident which gave rise to these prosecutions occurred was some 18 kilometres south of Collinsville. It was necessary for solicitors, counsel and experts to visit the site. The relevant proceedings were conduct in the Magistrates Court at Bowen. The major contributions to costs under this head were:

Air transport (usually to Mackay);
Hire of car to travel to the quarry or Bowen;
Accommodation and meals; and
Transcripts etc.

[128]
There was no attempt by the Industrial Magistrate to engage with Sch 2, Part 3, Item 6 and whether the disbursements claimed were allowable under the scale. Again, the scale was not used as a guide in the assessment process.

[129]
Whilst it appears that Mr Robinson had additional information before him which he based his opinion on, that information was not put before the Industrial Magistrate in admissible form. For the reasons identified above, the Industrial Magistrate erred in accepting and relying on the evidence of Mr Robinson.

[130]
Accordingly, for the foregoing reasons, the Appellant succeeds on appeal ground one.

Appeal Ground 2 – special difficulty, complexity or importance

[131]
The Appellant submits that the Industrial Magistrate erred in finding that the uplift test set out in the Justices Regulation, Sch 2 had been satisfied.^[34]

[132]
The Appellant further submits that the Industrial Magistrate did not identify the basis for a finding that the case was one of special difficulty, complexity or importance.

[133]
Such a finding is necessary in order for s 158B of the Justices Act to be applicable.
[134]
As noted above, a number of authorities^[35] have considered the phrase “special difficulty, complexity or importance”.

[135]
The following principles are able to be distilled from those summaries:

‘special importance’ refers to the importance of the case generally, for instance in terms of questions of law or public policy, rather than the importance of the case for the individual parties involved;

the difficulty, complexity or importance must be ‘special’ meaning that is distinguished from what is ordinarily or usually encountered;

the discretion to award a higher amount for costs as provided for in the scale, is enlivened where:

i.
special difficulty, complexity or importance exists; and

ii.
it is just and reasonable to make a higher award of costs having regard to the identified special difficulty, complexity or importance.

[136]
His Honour’s finding that the case was one involving “special difficulty complexity or importance” and the reasons for that finding are included in full at paragraphs 40 and 41 above. In summary, His Honour found that he was satisfied “due to the special importance of the case and dare I say complexity and special difficulties, … that a higher amount of costs is proper and just and reasonable”^[36] for the following, summarised reasons:

that the case involved a fatality;

there were 14 witnesses, 45 exhibits and a four day trial;

Senior Counsel was briefed for the Defendant;

that His Honour did not turn his mind to “the guilty party” until after he had considered all of the evidence, exhibits and submissions; and

it took a huge amount of time and effort to hear the trial.

[137]
The fact that the prosecution was with respect to fatality does not on its own take this case outside the realm of the ordinary in the jurisdiction in which it was heard.

[138]
The recitation of the procedural components of the hearing including by listing the number of days (4), witnesses (14) and exhibits (45) does not identify the basis upon which it can be concluded the case was one of special difficulty, complexity and importance. Indeed, these procedural components are not, at least without further consideration, out of the ordinary or usual in a hearing of that nature.

[139]
Whilst is might be the case that briefing Senior Counsel is an indication that the matter is one involving complexity or difficulty, the mere fact of it, without further consideration, does not support a conclusion that the case was one involving special difficulty or complexity. It may equally have been open to conclude, that engaging Senior Counsel was a preference made by a corporate defendant defending a charge under the QMSH Act.

[140]
The fact that His Honour did not turn his mind to “the guilty party” until after hearing of the matter, or that the matter took time and effort to complete, does not take it out of the realm of the ordinary or usual. It is expected that a judge will approach each hearing with an independent and impartial mind and not form a concluded view until after the hearing of the matter. It is also the case that for those involved, including the court, it is ordinary and usual for the hearing of a matter to take time and effort.

[141]
None of the matters identified by His Honour, without consideration or identification of further matters, support a conclusion that the case was one of special importance. His Honour did not identify a factor such as a question of law or public policy, that supports such a conclusion.

[142]
From the above, the reasons identified by His Honour do not support a conclusion that s 158B(2) was enlivened.

[143]
During the course of submissions, Senior Counsel for the Respondent identified, in some detail, matters in addition to those stated by the Industrial Magistrate in his reasons, which the Respondent relied on to contend that the case was one involving ‘special difficulty, complexity or importance’.

[144]
The issue here, however, is that the Industrial Magistrate did not identify those matters and consequently, those matters were not relied on in the finding.

[145]
The relevance of the basis for the finding is that the nature of either the special difficulty, special complexity or special importance of the case will then inform whether the costs are just and reasonable.

[146]
In these circumstances, His Honour’s finding that the case was one involving special difficulty, complexity and importance is in error. The Appellant succeeds on appeal ground two.

Appeal Ground 3 – the Justices Regulation Scale

[147]
The Appellant contends that His Honour failed to use the Justices Regulation as a guide to the calculation of quantum in cases where an over scale award is being contemplated.

[148]
As noted above, the construction of s 158B(2) requires the scale be used as a guide in the assessment of costs beyond the amount provided for in the scale. Also for the reasons identified above, appeal ground three is allowed.

Disposition of the Appeal

[149]
Ordinarily, the Industrial Court on an appeal, has the power to hear and determine costs. However, there are insufficient factual findings to enable such a determination to be made in this matter. Further, for the reasons identified above, there is an absence of evidence that is necessary to make such a determination. Consequently, the case will need to be remitted to the Industrial Magistrate’s Court.

[150]
During the course of oral submissions, Senior Counsel for the Respondent properly concluded that if I were to form a view that insufficient evidence was before the Industrial Magistrate, then for the same reasons, there would be insufficient evidence before the Industrial Court to determine the matter.

[151]
The Appellant submitted that if I were to consider remitting the costs matter to the Industrial Magistrate then such a remitter should be accompanied by a direction that the matter be heard and determined by another Magistrate on the basis that His Honour has already formed a view that the quantum of the costs awarded were just and reasonable.

[152]
Whilst there is some weight to be given to the Respondent’s submissions that because Industrial Magistrate Kennedy heard the matter at first instance it would be more efficient for the matter to be remitted to him, there are factors that also weigh against that course.

[153]
Relevantly, given the Industrial Magistrate has formed a view that the costs ordered were ‘just and reasonable’, I consider an appropriate direction should be issued that another Magistrate hear the remitted costs application.

[154]
Should the Appellant wish to apply for costs of this appeal, any application should be made within 28 days of the date of this order.

Orders

[155]
I make the following orders:

The Appeal is allowed.
The orders as to costs made on 4 May 2023 is set aside.
The question of costs is remitted to the Industrial Magistrates Court to be heard and determined according to law by an Industrial Magistrate other than Magistrate Kennedy.

Footnotes

[1] Applicant's application to appeal filed on 25 May 2023.

[2] Mining and Quarrying Safety and Health Act 1999 (Qld) s 6.

[3] Ibid, s 234.

[4] Section 158A was enacted in 1992 by the Justice Legislation (Miscellaneous Provisions) Act 1992, s 91 in response to the High Court’s decision in Latoudis v Casey (1990) 170 CLR 534.

[5] Justices Regulation 2014 (Qld) r 19.

[6] [2016] ICQ 17, 28 – 34 (‘Schloss’).

[7] [2014] QDC 120, 20.

[8] [2014] QDC 17, 40, per Farr SC DCJ.

[9] [2016] QDC 131, 29.

[10] Schloss (n 6) 40.

[11] [2015] QDC 79, 37.

[12] Schloss (n 6).

[13] [2000] 3 NSWLR 489; 496-7.

[14] Schloss (n 6) 41.

[15] Transcript of Decision (Costs), Stone v Belmore Bulk Material Pty Ltd & Ors (Magistrates court, MAG-00111537/19(4), Magistrate Kennedy, 4 May 2023), 4, 28 - 5, 43.

[16] Ibid 5, 43 – 20, 37.

[17] Ibid 20, 39 – 44.

[18] Ibid 21, 1 – 11.

[19] Ibid 21, 11 – 17.

[20] Ibid 21, 17 – 22, 21.

[21] Clark v Ryan (1960) 103 CLR 486, 491.

[22] R v Reed [2010] 1 CR App R 23, 113.

[23] (2001) 52 NSWLR 705, 55 (‘Makita’).

[24] Ibid, 55.

[25] [2006] 2 Qd R 69.

[26] Transcript of Proceedings, Stone v Belmore Bulk Material Pty Ltd & Ors (Magistrates court, MAG-00111537/19(4), Magistrate Kennedy, 27 October 2022),2, 23-36; 8, 35-37.

[27] QCA 66; [2009] 2 Qd R 219.

[28] See Hickey v Crime and Misconduct Commission [2008] QDC 340, 13 citing Lewis v Utting ex parte Utting [1985] 1 Qd R 423 at 444.

[29] (1991) 34 NSWLR 129 at 130-131 per Giles J.

[30] Hickey v Crime and Misconduct Commission [2008] QDC 340, 43-44; Schloss (n 6) 53-56. See also [27] above.

[31] Transcript of Decision, Stone v Belmore Bulk Material Pty Ltd & Ors (Magistrates court, MAG-00111537/19(4), Magistrate Kennedy, 4 May 2023), 21, 46 – 22, 8.

[32] Schloss (n 6) 54; Hickey v Crime and Misconduct Commission [2008] QDC 340, 43.

[33] Transcript of Proceedings, Stone v Belmore Bulk Material Pty Ltd & Ors (Magistrates court, MAG-00111537/19(4), Magistrate Kennedy, 27 October 2022), 22, 30; 23, 40.

[34] Ibid.

[35] see [29] – [33] above.

[36] Transcript of Decision, Stone v Belmore Bulk Material Pty Ltd & Ors (Magistrates court, MAG-00111537/19(4), Magistrate Kennedy, 4 May 2023), 21, 1-3.

Editorial Notes

Published Case Name:
Stone v Belmore Bulk Materials Pty Ltd & Ors
Shortened Case Name:
Stone v Belmore Bulk Materials Pty Ltd
MNC:
[2024] ICQ 23
Court:
ICQ
Judge(s):
Hartigan DP
Date:
20 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

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Clark v Ryan	View on:JADE(1960) 103 C.L.R 486	2 citations Jump To Cite 1 - (1960) 103 C.L.R 486 Cite 2 - (1960) 103 C.L.R 486
Cullinan v McCahon	[2014] QDC 120	2 citations Jump To Cite 1 - [2014] QDC 120 Cite 2 - [2014] QDC 120
Drew v Makita (Australia) Pty Ltd	[2009] 2 Qd R 219; [2009] QCA 66	3 citations Jump To Cite 1 - [2009] QCA 66 Cite 2 - [2009] 2 Qd R 219 Cite 3 - [2009] 2 Qd R 219
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Guilfoyle v Kouzoukas	[2022] QDC 8	1 citation Jump To Cite 1 - [2022] QDC 8
Hickey v Crime and Misconduct Commission	[2008] QDC 340	3 citations Jump To Cite 1 - [2008] QDC 340 Cite 2 - [2008] QDC 340 Cite 3 - [2008] QDC 340
JG v Clark	[2008] QDC 240	1 citation Jump To Cite 1 - [2008] QDC 240
Latoudis v Casey	View on:JADE(1990) 170 CLR 534	2 citations Jump To Cite 1 - (1990) 170 CLR 534 Cite 2 - (1990) 170 CLR 534
Lewis v Utting; ex parte Utting	[1985] 1 Qd R 423	1 citation Jump To Cite 1 - [1985] 1 Qd R 423
Makita (Australia) Pty Ltd v Sprowles	View on:NSWLR(2001) 52 NSWLR 705	2 citations Jump To Cite 1 - (2001) 52 NSWLR 705 Cite 2 - (2001) 52 NSWLR 705
Murphy v R	View on:JADE(1989) 167 CLR 94	1 citation Jump To Cite 1 - (1989) 167 CLR 94
North Sydney Council v Ligon 302 Pty Ltd	(1995) 87 LGERA 435	1 citation Jump To Cite 1 - (1995) 87 LGERA 435
R v Ping	[2006] 2 Qd R 69; [2005] QCA 472	2 citations Jump To Cite 1 - [2006] 2 Qd R 69 Cite 2 - [2006] 2 Qd R 69
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Schloss v Bell	[2016] ICQ 17	2 citations Jump To Cite 1 - [2016] ICQ 17 Cite 2 - [2016] ICQ 17
Seiffert v Commissioner of Police	(2021) 8 QR 415; [2021] QCA 170	1 citation Jump To Cite 1 - [2021] QCA 170
Selvanayagam v University of the West Indies	View on:ICLRUK(1983) 1 WLR 585	1 citation Jump To Cite 1 - (1983) 1 WLR 585
Selvanayagam v University of the West Indies	(1983) 1 All ER 824	1 citation Jump To Cite 1 - (1983) 1 All ER 824
Senior Constable Sheehan v Leo	[2016] QDC 131	2 citations Jump To Cite 1 - [2016] QDC 131 Cite 2 - [2016] QDC 131
Stone v Thomas	[2022] ICQ 30	1 citation Jump To Cite 1 - [2022] ICQ 30
Whitby v Stockair Pty Ltd	[2015] QDC 79	3 citations Jump To Cite 1 - [2015] QDC 79 Cite 2 - [2015] QDC 79 Cite 3 - [2015] QDC 79

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