Murray v Radford[2003] QCA 91

SUPREME COURT OF QUEENSLAND

DAVIES JA:  This is an application for leave to appeal against the decision of the District Court on appeal from the Magistrates Court.  The decision of the District Court and the appeal to this Court, if leave were granted, is in respect of costs only.

The applicant was charged on complaint in the Magistrates Court on three offences under the Local Government Act.  Those charges were:

"Charge 1

On the 17th day of May 2000 at Gatton in the State of Queensland KENNETH EDWARD MURRAY, then a councillor of the Gatton Shire Council, did take part in a meeting of the said council while an issue on which he, the said KENNETH EDWARD MURRAY, had a material personal interest, was being considered;

Charge 2

On the 21st day of June 2000 at Gatton in the

State of Queensland KENNETH EDWARD MURRAY, then a councillor of the Gatton Shire Council, did take part in a meeting of the said council while an issue on which he, the said KENNETH EDWARD MURRAY, had a material personal interest, was being considered;

Charge 3

On the 12th day of September 2000 at Gatton in the State of Queensland KENNETH EDWARD MURRAY, then a councillor of the Gatton Shire Council, did take part in a meeting of the said council while an issue on which he, the said KENNETH EDWARD MURRAY, had a material personal interest, was being considered."

The charged offences were, in each case, offences against s 224(1)(b) of the Local Government Act 1993. 

The matters relevant to the charges were investigated by the Criminal Justice Commission who then referred the matter to the Director of Public Prosecutions before charges were brought.  The respondent to this application, who was the complainant in respect of each of the charges, was at all material times a police officer whose services were utilised by the Commission pursuant to s 65 of the Criminal Justice Act 1989.

The Magistrate dismissed the charges on 15 October 2001.  One of the issues before him, which he described as the real issue in the dispute, was whether the defendant had a material personal interest within the meaning of s 244(1)(b).  The term "material personal interest" is defined in s 6 of that Act in the following terms:

"A person is said to have a material personal interest if the person has or should reasonably have, a realistic expectation that whether directly or indirectly, the person stands to gain a benefit or suffer a loss."

In the end the learned Magistrate concluded that he had a doubt as to whether there was any realistic expectation that the applicant would suffer loss if, as the Council was debating, certain decision notices of his were referred to the Queensland Building Services Authority by the Council.  That being the question before him, in his view, he found that the complainant had not proved all the elements of each of the offences I have set out beyond a reasonable doubt.  He thought that there was doubt as to there being a realistic expectation that the applicant would suffer loss.  However, it is plain that the applicant was present at and took part in meetings of the Council while that issue was being considered.  There was no evidence from which it could be inferred that the complainant acted other than in good faith, or for that matter, acted unreasonably in bringing the prosecution.

At the end of the case in the Magistrates Court the applicant sought costs against the respondent.  The relevant provisions with respect to such an application are ss 158 and 158A of the Justices Act 1986.  Those sections relevantly provide:

"158(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(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 a 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)whether the proceeding was brought and continued in good faith; and

(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

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

(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

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

(f)whether the defendant unreasonably declined an opportunity before a charge was laid -

(i)to explain the defendant's version of the events; or

(ii)to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and

(g)whether the defendant conducted the defence in a way that prolonged the proceedings unreasonably; and

(h)whether the defendant was acquitted on a charge, but convicted on another.

..."

The magistrate considered the application of those sections to the application before him and he concluded in these terms:

"The defendant clearly had a personal interest in the issue being considered by council.  The defendant's prior history with council before he was a councillor, as alluded to in the evidence, has contributed to the unusual and unsettling behaviour he demonstrated at the meetings.  His failure to control his passions led him to push the conflict between his duty and his personal interests to the outermost limits of the legislation being considered in these proceedings.  As I stated in my decision, a councillor with sensible powers of reasoning and deduction would have adopted a more cautious approach of, if he was in doubt, to get out of the meeting. 

The defendant, by his conduct, has brought these proceedings upon himself.  The complaint has been dismissed on the basis that the defendant is entitled to a doubt that has been raised on the evidence before me.  I am persuaded that the proceedings have been brought and were continued in good faith.  I am further satisfied that the conduct of the defence in these proceedings has contributed to the proceedings being protracted, in any event."

After making some further remarks the magistrate concluded that he was not satisfied that it was proper to make an award for costs and he refused any such order.  I should say at once, as I think I mentioned during the course of argument, that I can find no error in the magistrate's assessment of the facts or in his application of those sections to those facts.  There was, in my opinion, therefore no basis for overturning the exercise of his discretion.  Indeed, it seems to me that the decision of the magistrate was plainly correct.

It may be accepted that, but for s 158A the discretion which magistrates have to order that the costs of a successful defendant be paid by an unsuccessful claimant will ordinarily be exercised in favour of such a defendant.  See Latoudis v. Casey (1990) 170 CLR 534.  However that is not always the case.  A discretion remains under s 158 to order otherwise.  It is not necessary to consider how that discretion ought properly to have been exercised in a case such as this if s 158A did not apply. 

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.

If, as I think, the magistrate did not err in the exercise of his discretion, taking into account only relevant matters, it is difficult to see how the learned District Court judge could have erred in law in dismissing the appeal against that decision.  Nor do I think that she did.  On the contrary, it seems plain that almost all of the matters to which s 158A(2) refers, which are relevant to the facts of this case were taken into account and decided in favour of the respondent to this application.  Thus, her Honour took into account and decided the following:  The proceedings were brought and continued in good faith:  s 158A(2)(a).  There was no failure to take appropriate steps to investigate the matter:  2(b). A fortiori I would say they were brought reasonably.  The investigation was conducted in an appropriate way:  2(c).  The prosecution failed only because of the failure, on one aspect of the matter, to satisfy the magistrate beyond reasonable doubt; the decision by no means endorsed the propriety of the applicant's conduct in remaining at the relevant Council meetings:  2(d).  And the applicant conducted his defence in a way that prolonged the proceedings unreasonably:  2(g). 

In my opinion no irrelevant matters affected the exercise of her Honour's discretion in the matter before her. 

Subject to one technical issue there is, in my opinion, no issue which requires determination by this Court and I would add, if leave were granted to appeal I would have no doubt that the appeal would be dismissed.

Her Honour ordered the applicant to pay the respondent's costs "to be assessed unless otherwise agreed".  That appears to be within the very wide discretion conferred by s 226 of the Justices Act.  I find it difficult to see how the width of that discretion so conferred may be cut down by a schedule in Regulations under the Act as Schedule 2 to the Justices Regulations 1993 purports to do.  However, Mr Davis, who appeared for the applicant, is prepared to accept an amendment to that order to provide for costs so limited; that is, and this is agreed to by Mr Carmody, in the sum of $2,850.  I mean by that of course that Mr Carmody agrees as to the amount only. 

Accordingly, I would make the following orders:

1.Grant leave to appeal and allow the appeal only to the extent of substituting for her Honour's order for costs an order that the applicant in the District Court pay the respondent's costs in that Court fixed at $2,850.

2.Otherwise dismiss the application for leave to appeal.

JERRARD JA:  I agree.

MACKENZIE J:  I agree.  I would only add that there is a regulation making power with regard to costs but the reconciliation of that with the general discretion referred to in section 226 is a matter which, as far as I personally am concerned, remains yet to be resolved after full argument if the case arises.

MR DAVIS:  Your Honour, I apply for the costs of the application.

DAVIES JA:  Do you want to say anything about that, Mr Carmody?

MR CARMODY:  I oppose it.  It's fairly arguable.  That's all I've got to say, your Honour.

DAVIES JA:  Yes, with costs.