Madden v Commissioner of Police [No 2]
[2023] QCA 182
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Madden v Commissioner of Police [No 2][2023] QCA 182
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Madden v Commissioner of Police [No 2][2023] QCA 182
Madden v Commissioner of Police [No 2][2023] QCA 182
SUPREME COURT OF QUEENSLAND
CITATION: | Madden v Commissioner of Police [No 2] [2023] QCA 182 |
PARTIES: | JEAN ELLEN MADDEN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | Appeal No 208 of 2021 DC No 1607 of 2020 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) – Further Orders |
ORIGINATING COURT: | District Court at Brisbane – [2021] QDC 152 (Rosengren DCJ) |
DELIVERED ON: | 8 September 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Mullins P and Bond JA and Brown J |
ORDERS: | The respondent must pay the appellant’s costs of:
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where the appellant succeeded on appeal to the Court of Appeal from orders made by the District Court exercising appellate jurisdiction – where the appeal succeeded because the Court of Appeal departed from its own previous decision – where the appellant sought costs of the appeal to the Court of Appeal and of the appeal to the District Court – where the respondent contended that there would have been no need for either appeal but for a procedural error for which both parties shared responsibility – where that did not provide a basis for denying the appellant the normal consequences of her success – where costs should follow the event |
COUNSEL: | D S Caruana for the appellant S A McLeod KC for the respondent |
SOLICITORS: | Jahnke Lawyers for the appellant QPS Legal Unit for the respondent |
- [1]THE COURT: The Court’s principal reasons for judgment in this proceeding are set out in Madden v Commissioner of Police [2023] QCA 31. That judgment did not dispose of the costs of the application for leave to appeal, of the appeal, or of the proceeding below. Rather, the Court directed:
“The parties are to file submissions as to the order which should be made as to costs, including as to the costs below, limited to four pages, and the Court will resolve on the papers the orders which should be made on those matters.”
- [2]The appellant and the respondent each having delivered written submissions, it is now necessary to resolve the orders which should be made in relation to costs.
- [3]The procedural history of this case and the issues dealt with by this Court on appeal are set out in detail in the Court’s principal judgment. For present purposes, it suffices to make only a brief recapitulation.
- [4]The appellant had been charged with 16 dishonesty related offences in connection with a charity which she had founded for the supply of swags to homeless people. By 4 March 2019, twelve of those charges had been discontinued by the respondent.
- [5]It was the mutual contemplation of both sides that the remaining four charges would be mentioned before the Magistrates Court for the purpose of dismissing the charges and dealing with the appellant’s foreshadowed intention to apply for a costs order in her favour.
- [6]On 12 December 2019, the magistrate made oral orders that the charges were dismissed and the appellant was discharged. So far as the question for costs was concerned, the magistrate endorsed the file with a note which provided:
“Application for costs made. Defence filed material in support of application. Prosecution to file and serve material to be relied upon by close of business 31 January 2021. Application for costs listed for hearing at 9am on 19 February 2020.”
- [7]By the time the application for costs came on for argument, the parties had become apprised of Bell v Carter; Ex parte Bell [1992] QCA 245. In her reasons, the magistrate correctly identified that Bell stood as authority for the proposition that on the proper construction of the Justices Act 1886 no order for making a payment of costs could be made once there has been a formal dismissal of the charge or complaint. The magistrate, as she was bound to do, followed Bell and dismissed the application for costs.
- [8]On appeal from the Magistrates Court to the District Court, the District Court judge also followed Bell and, as she too was bound to do, dismissed the appeal.
- [9]Two proposed grounds of appeal from the District Court were agitated in this Court. First, that the primary judge erred in ruling that the magistrate had no jurisdiction to award costs. This ground invited the Court to reconsider and then to depart from Bell. Second, and in the alternative, that the primary judge erred “by failing to find error in the Learned Magistrate’s decision, made on 12 December 2019, to dismiss the charges before the Magistrates Court, in circumstances where a costs application had been foreshadowed and failing to, on her own initiative, amend the notice of appeal before her to reflect that error.”
- [10]This Court overruled Bell with the result that the first ground of appeal was upheld. The Court also reasoned that if the first ground of appeal had failed, it would have upheld the second ground of appeal.
- [11]The appellant now seeks her costs of the application for leave and of the appeal before this Court on the basis that costs should follow the event. She also seeks her costs of the appeal to the District Court on the same basis. Although the District Court judge correctly followed Bell, the fact that this Court overruled Bell meant that the result should have been different before the District Court judge.
- [12]The respondent contends that it should only have to pay 25 per cent of the costs which the appellant sought. The only basis upon which that contention is advanced is that both parties collectively carried some responsibility for the fact that the appeal had to occur in the first place. There would have been no need either for an appeal to the District Court or to this Court if, in the first place, the parties had ensured that the magistrate had not made formal orders in advance of the hearing and disposition of the costs application.
- [13]Although that proposition is factually true, it does not provide a basis for denying the appellant the normal consequences which follow from the success she had in the Court of Appeal and the success she should have had in the District Court. Viewed from another perspective, one could just as easily say that there would have been no need for either appellate step if the law had not been erroneously stated in Bell. Fairness requires that the appellant be indemnified against the costs she incurred in order to obtain a result which accorded with the law, at least to the extent of costs on the standard basis.
- [14]Costs should follow the event. Accordingly, the respondent must pay the appellant’s costs of –
- (a)the application for leave to appeal to the Court of Appeal;
- (b)the appeal to the Court of Appeal; and
- (c)the appeal to the District Court.