Lee v Commissioner of Police[2012] QCA 185

COURT OF APPEAL

MARGARET McMURDO P

GOTTERSON JA

MULLINS J

CA No 11 of 2012

DC No 2507 of 2011

LEE, Ching-YehApplicant

v

COMMISSIONER OF POLICERespondent

BRISBANE 

DATE 10/07/2012

ORDER

The application for leave to appeal to this Court was filed only a few days late.  The applicant was self-represented in the appeal to the District Court and in the present application.  She is an Australian resident of Taiwanese heritage.  English is not her first language although she was able to communicate with this Court effectively in English.  She was also assisted at the Bar table by her mother.  She has deposed that she attempted to file her documents in the appeal registry within time on 11 January 2012 but as her material was deficient it was refused by registry staff.  She again unsuccessfully attempted to file her proceedings the following day.  She next sought advice from QPILCH.  She returned to the registry to file her material on 13 January 2012 but by then the time allowed for bringing an application for leave to appeal had expired.  She finally filed this application for an extension of time on Monday, 16 January 2012.

Mr Power for the respondent fairly concedes that in these circumstances the extension of time should be granted if the application for leave to appeal has any prospects of success.  He contends, however, that the applicant has no prospects of success in any appeal and that, therefore, her application for extension of time should be refused as it would serve no useful purpose.

His Honour Judge Noud summarised the background to this matter in his reasons for the order the subject of this proceeding.  The applicant was charged with numerous offences, at least one of which was indictable, in the Magistrates Court in mid-2009.  At an early stage, the charges were dismissed or struck out but the prosecution later elected to proceed again.  One matter, at least, was pursued on indictment in the District Court.  His Honour Judge Botting considered the prosecution of that matter an abuse of power and stayed the indictment.  One charge (being drunk and disorderly in licensed premises) remained in the Magistrates Court.  It was finally dismissed or struck out on 15 June 2011 when the applicant was legally represented.  Her lawyers had negotiated with the police prosecutor and as a result the prosecuting authorities elected not to proceed on that charge.  The matter was listed for mention only on 15 June 2011, that is, not for a full hearing. 

Judge Noud determined that the magistrate erred in part in not awarding costs of $250 in favour of the applicant in respect of the mention hearing on 15 June 2011.  His Honour otherwise agreed with the magistrate’s reasons for refusing to order the costs applicable for a full hearing, namely, $1,500.  Accordingly, his Honour allowed the appeal in part, set aside the magistrate’s order and instead ordered that the respondent pay the applicant $250 for the costs of the mention on 15 June 2011.  As the applicant was unrepresented in the appeal before him and had not expended costs on legal representation, the Judge made no order as to the costs of the appeal before him.

The applicant states, as the grounds of her application in this Court:

“1.The second Proceeding re-opened against me was unfairly and dissentiment my right.

2.It was an abuse of process caused by a Police officer, Members of DPP And Respectful Learned Magistrate, therefore all costs occur in the second proceeding should be full provide plus interest. economical and non economical damage/loss” (as per original).

She seeks the following orders:

“(a)the appeal be allowed;

(b)the judgment be set aside or changed;

(c)in case related to mis-conduct/abuse of process . that costs should be fully provide without scale of Court cost .

(d)issue an indemnity certificate

(e)protection order is needed

(f)a Remedy should be granted as security for costs against non party in the proceeding”

(as per original).

Although the applicant has not provided a written outline of argument, it appears from an email she sent to the Court, and from her forceful and articulate, although, sometimes emotional oral submissions, that she is concerned that she has not been able to obtain legal representation for this hearing, either privately or through Legal Aid Queensland.  Her previous solicitors withdrew on short notice at the appeal before Judge Noud and as her retainer still existed with them it was difficult for her to engage new solicitors.  She has spent a lot of money, $37,500 she claims, on legal fees.  She has appeared in Court about 26 times in respect of the various complaints in the Magistrates Court all of which have been subsequently struck out, dismissed or stayed.  She is experiencing resulting financial hardship and is unable to afford legal representation.  The proceedings have caused her emotional and physical distress which has compromised her ability to prepare for today’s hearing.  Questions of discrimination and harassment and concerns for her personal safety and well-being arose.  She had to return to Taiwan for two months to seek comfort and assistance from her family.  The extension of time, she submits, should be granted so that she can receive a fair opportunity to provide her best case for the appeal proceedings.

I apprehend from her written and oral submissions that she wants Judge Noud’s order set aside and for this Court to impose a much more substantial costs order in her favour completely reimbursing her for all the legal costs she has expended and compensating her for the emotional turmoil she has suffered as a result of the charges.

If the extension of time were granted, the applicant would need to then obtain an order for leave to appeal before she could pursue her appeal rights.  Ordinarily, an application for leave to appeal under s 118(3), where an applicant has already had the benefit of an appeal to the District Court, is granted only when there is a reasonable argument that there has been an error warranting correction to avoid a substantial injustice: Pickering v Macarthur;[1] Rogers v Smith.[2]

The Court can do nothing about the unfortunate applicant’s financial and emotional distress and her lack of legal representation.  Her submissions misapprehend the purpose of costs orders and the type of costs orders that can be awarded in respect of matters such as these in the Magistrates Court.  Costs are awarded to partially compensate successful litigants for legal costs they have actually incurred.  The power to award costs in the Magistrates Court in respect of simple offences is governed by Pt 6 Div 8 Justices Act 1886 (Qld) and Sch 2 of the Justices Regulation 2004 (Qld).  As Judge Noud appreciated, the costs he could award for the mention on 15 June 2011 were limited to $250 under ss 158, 158A, 158B and Pt 2 of the schedule.  The applicant has not demonstrated that the hearing in the Magistrates Court on 15 June 2011 with which ultimately this application is concerned was for anything other than a mention of the sole remaining charge against her.  In those circumstances, the orders made by Judge Noud appear to be entirely in accordance with s 158 and s 158A Justices Act and within a sound exercise of the judicial discretion in determining such costs orders.  The applicant has not raised a reasonable argument that the order in respect of which she requests an extension of time to apply for leave to appeal was made in error or that she has suffered any injustice, substantial or otherwise, in respect of it.  On the contrary, his Honour’s order was generous to the applicant.  Neither Judge Noud nor the magistrate had power to make a costs order of the kind now sought by the applicant.

The applicant has explained her reasons for the late filing of her appeal proceedings in this Court but she has not demonstrated any apparent error in Judge Noud’s order; nor has she demonstrated that she has suffered any substantial injustice flowing from that order.  Any resulting application for leave to appeal would inevitably be refused so that it would be pointless to grant an extension of time.  The application for an extension of time, in my view, should be refused.  As she has no realistic prospects for success in the appeal proceeding, the interests of justice do not require the appointment of an interpreter.

GOTTERSON JA:  I agree.

MULLINS J:  I agree.

THE PRESIDENT:  The orders are: the application for an extension of time to apply for leave to appeal is refused.  The application for an order that the State provide an interpreter for the applicant is also refused.

Now you were saying that you wanted these things to be over and get on with your life.  Now that’s the end of your appeals in respect of those orders in the State and so you now should just get on with your life and do your best to repay your mother for the money she has helped you with and the support she has given you.