Madden v Commissioner of Police
[2023] QCA 31
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- Unreported Judgment
- Appeal Determined (QCA)
- Madden v Commissioner of Police[2023] QCA 31
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Madden v Commissioner of Police[2023] QCA 31
Reported at (2023) 14 QR 1
Madden v Commissioner of Police[2023] QCA 31
Reported at (2023) 14 QR 1
SUPREME COURT OF QUEENSLAND
CITATION: | Madden v Commissioner of Police [2023] QCA 31 |
PARTIES: | JEAN ELLEN MADDEN (applicant) 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) |
ORIGINATING COURT: | District Court at Brisbane – [2021] QDC 152 (Rosengren DCJ) |
DELIVERED ON: | 10 March 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 February 2023 |
JUDGES: | Mullins P and Bond JA and Brown J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – MATTERS SPECIFIC TO CIVIL JURISDICTION OF DISTRICT OR COUNTY COURT – JURISDICTION – OTHER MATTERS – where the applicant had been charged with dishonesty related offences and the complainant offered no evidence and sought orders dismissing the charges – where the applicant sought costs orders in her favour – where the Magistrate dismissed the charges and listed the application for costs for a later date – whether the Court of Appeal should reconsider and then depart from its previous decision that such costs orders were beyond the power of the Magistrates Court where formal dismissal orders had already been made – where the Court of Appeal decided to reconsider and then to depart from its previous decision ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – PROCEEDINGS OF JUDICIAL NATURE – where the Magistrate had been apprised of the applicant’s intention to make a costs application – where the Magistrate made orders dismissing the charges without hearing and determining the costs application – whether the applicant had been denied procedural fairness District Court of Queensland Act 1967 (Qld), s 118(3) Justices Act 1886 (Qld), s 149, s 150, s 151, s 152, s 157, s 158, s 158A, s 159, s 222, s 224, s 225, s 228 Bell v Carter; Ex parte Bell [1992] QCA 245, disapproved Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, followed Gibson v Canniffe [2008] QDC 319, followed Lynch v Commissioner of Police [2022] QCA 166, cited |
COUNSEL: | D S Caruana for the applicant S A McLeod KC for the respondent |
SOLICITORS: | Jahnke Lawyers for the applicant QPS Legal Unit for the respondent |
- [1]THE COURT: An order made in the Magistrates Court and confirmed on appeal to the District Court refused an application made by the present applicant for costs in respect of four dishonesty related charges which were dismissed when the complainant offered no evidence.
- [2]The applicant now applies for leave to appeal from the orders made in the District Court and seeks orders remedying the impact of what she characterises as either error of law or procedural unfairness.
- [3]For the following reasons, the applicant’s application for leave to appeal should be granted, her appeal should succeed, and orders should be made to facilitate the hearing and determination of her application for costs orders.
The procedural history
- [4]The applicant 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.
- [5]By 4 March 2019, twelve of the charges had been discontinued by the complainant. On 28 August 2019, one of the four remaining charges was listed for a 2-day summary trial to commence on 12 December 2019. The complainant had previously communicated an intention to discontinue the other three charges and they too were listed for mention on 12 December 2019, presumably to give effect to that intention.
- [6]On 3 December 2019, the complainant notified the applicant’s lawyers that they intended also to discontinue the charge which had been listed for trial on 12 December 2019. In such circumstances, the applicant had a statutory right under s 158 of the Justices Act 1886 (Qld) to apply for an order that the complainant pay her costs of the dismissed charges. She intended to make such an application and her intention had been communicated and acknowledged by the prosecuting authority.
- [7]It must have been the mutual contemplation of both the complainant and the applicant that the four remaining charges would be mentioned on 12 December 2019 for the purpose of giving effect to the complainant’s communicated intention that all charges would be dismissed and the applicant’s communicated intention to apply for a costs order in her favour.
- [8]At the callover before the Magistrates Court on 12 December 2019, the complainant was represented by a police prosecutor who had not previously had the conduct of the matters. That prosecutor advised the Magistrate that no evidence would be offered in respect of the matter which had been listed for trial; advised that the applicant would be making an application; and indicated that the prosecution would seek an adjournment of the application. Counsel for the applicant mentioned that the other three charges were to be dismissed. The Magistrate stated that the file before her contained two charges. The prosecutor confirmed that her understanding was all of the charges should be dismissed, but that she had thought that only one charge remained.
- [9]The Magistrate then made an oral pronouncement that "prosecution, having offered no evidence on charges 5 and 7 of 8, those charges are dismissed and the defendant is discharged". Her Honour also initialled an endorsement on the file for those two charges which provided “Prosecutor offers no evidence of charges 5 & 7 of 8. Charges are dismissed. Defendant is discharged”. We interpolate, because it will become relevant later, that, bearing in mind the distinction between judicial and administrative acts examined by Devereaux SC ADCJ (as the Chief Judge then was) in Gibson v Canniffe [2008] QDC 319 at [15] to [19] and [52] to [54], this order was a judicial rather than an administrative act by the Magistrate, and must be regarded as an order made under Part 6 of the Justices Act, and subject to appeal pursuant to s 222 and as limited by that section.
- [10]The prosecutor then sought a timeline in respect of the applicant’s foreshadowed application. The discussion which ensued resulted in the Magistrate being informed that the application was for costs, but that the application had not yet been filed. Counsel for the applicant communicated that his intention was that the application for costs was to be made pursuant to s 158 of the Justices Act. He advised that he was ready to proceed on that application. The prosecutor developed submissions explaining why she was not in a position to proceed.
- [11]In the meantime, the Magistrate had established that there was also a file before her in which the remaining two charges were still live. The evidence before this Court revealed that the file for each of those charges had been stamped “This charge is heard concurrently with charge 5 of 8 … until such time as it is endorsed otherwise.” The transcript reveals that the prosecutor had thought the two charges had already been discontinued. The Magistrate indicated preparedness to give the prosecutor the time she needed and to “leave the charges there” so that they could be dealt with at the costs application. Counsel for the applicant sought to have the matter stood down to take further instructions from his client.
- [12]After a brief discussion about the directions which should be made in relation to the costs application, the Magistrate intimated that she would list a hearing on 18 February 2020 and proposed making directions later in the morning once the matter came back before her. Counsel for the applicant formally placed an application for costs on the record and the Magistrate marked that fact on the file.
- [13]After an hour’s adjournment, the matter came back before the Magistrate. The prosecutor advised that she had obtained instructions that the remaining two charges were to be discontinued. The Magistrate then made an oral pronouncement that "prosecution, having offered no evidence on charges 2 and 3 of 7, those charges are dismissed and the defendant is discharged". Her Honour also initialled an endorsement on the file for those two charges which provided “Prosecutor offers no evidence of charges 2 & 3 of 7. Charges are dismissed. Defendant is discharged”. The observation that this was a judicial act previously made applies equally to this order.
- [14]Counsel for the applicant then filed in Court affidavit material relating to the costs application and written submissions in support of the application which had been made. The Magistrate made oral directions that the prosecution was to file its affidavit by close of business on 31 January 2020. Her Honour then stated that the application for costs was listed for hearing on 19 February 2020. The Magistrate made an initialled handwritten endorsement on the file referred to at [9] which stated:
“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 2020. Application for costs listed for hearing at 9am on 19 February 2020 …”
- [15]That hearing proposed for 19 February was later adjourned to 19 March 2020.
- [16]By the time that the application for costs came on for argument on 19 March 2020, the complainant and the applicant had become apprised of the decision of the Court of Appeal in Bell v Carter; Ex parte Bell [1992] QCA 245 (Bell). It is appropriate to interpolate a brief summary of the decision:
- (a)On 1 July 1991, a Magistrate had, by consent, dismissed charges brought by the applicant against the respondent.
- (b)The dismissal of both charges was at the request of the applicant and had followed the execution by the respondent of a deed earlier on that day, the terms of which precluded the respondent from seeking costs.
- (c)Notwithstanding the deed, the respondent by his counsel applied for costs. In the course of that application counsel submitted that the Magistrate, having exercised his jurisdiction to grant costs, should adjourn the determination of the quantum of the costs to enable material on that question to be placed before him. It seems that neither the respondent nor the applicant took the Magistrate to the terms of the deed.
- (d)The Magistrate’s endorsement on the bench charge sheet indicated that on the day he dismissed the charges, he ordered that the applicant pay the respondent’s costs, and adjourned the quantum of those costs to a date to be fixed.
- (e)The Court of Appeal, in a unanimous judgment by McPherson JA, Davies JA and Thomas J, found that it was unclear whether the Magistrate had purported to adjourn the question of costs to a date to be fixed or purported to order the applicant to pay the respondent's costs, and to adjourn the question of the quantum of those costs to a date to be fixed.
- (f)On a later date, on the basis of evidence then put before him, the Magistrate purported to fix those costs and to order the applicant to pay costs in the sum so fixed forthwith.
- (g)The Court of Appeal found that the respondent had led the Magistrate into error in two respects; first in considering an application for costs when the deed plainly precluded such an application, and secondly in adjourning the question of costs or the fixing of the amount thereof after dismissal of the complaint when either course was beyond power.
- (h)As to the latter proposition, the Court wrote:
- (a)
“Each of these orders is contrary to s. 159 of The Justices Act of 1886 which provides:
“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 prosecution.”
There can be no doubt that on 1 July 1991 the magistrate dismissed the charges. The only question in doubt is whether he made an order for costs leaving quantum to be fixed at a later date, or made no order for costs at all on that date notwithstanding an intimation of his intention to do so. It is not necessary to decide which of these courses he took. Both were beyond power. If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination on the question of costs.”
- [17]The application for costs in the present case was argued on 19 March 2020. The respondent submitted that Bell was binding authority and compelled a conclusion that the Magistrate had no jurisdiction to make a costs order, a formal order of dismissal already having been made. The applicant submitted the contrary.
- [18]On 4 June 2020, the Magistrate pronounced her order refusing the application for costs. In her reasons, the Magistrate, correctly, identified that Bell stood as authority for the proposition that on the proper construction of the Justices Act no order for making a payment of costs can be made once there has been a formal dismissal of the charge or complaint. The Magistrate, as she was bound to do, followed Bell. The Magistrate noted that in the case before her she had both pronounced the dismissal in open court and endorsed the file with the fact of the dismissal having been made. The Magistrate concluded that there had been a formal dismissal of all four charges and she had no jurisdiction to make a costs order. The costs application was refused.
- [19]The following day, the applicant filed a notice of appeal to the District Court from the order made by the Magistrate refusing the costs application. The primary judge recapitulated the events which occurred on 12 December 2019; identified the manner by which the Magistrate made orders dismissing the four charges concerned and endorsed those orders on the file; summarised the competing arguments before the Magistrate in relation to the costs application; summarised the reasoning by which the Magistrate had arrived at her conclusion that the costs application should be dismissed, and then considered whether any error had been demonstrated.
- [20]The primary judge concluded, correctly, that Bell was central to the resolution of the appeal before her. Her Honour rejected the argument that Bell could be distinguished on the basis that it involved a dismissal order made after the execution of a deed which precluded a costs application, forming the view, correctly, that the factual distinction was irrelevant. The primary judge found that before any order had been made the Magistrate had been informed that there would be an application by counsel for the applicant. Further, the primary judge found that the application for costs was made prior to an order being made dismissing the last two charges. She concluded that “[w]hile this is correct, it does not assist the appellant”. The primary judge then considered in detail a number of other decisions of the District Court which addressed the operation of Bell in different factual scenarios. Ultimately, as she was bound to do, the primary judge followed Bell. The primary judge summarised her decision in this way:
“In short, I concur with the magistrate's conclusions that:
- (i)an order for costs cannot be made once there has been a formal dismissal of the charge or complaint;
- (ii)the timing of the filing of an application and purported adjournment for the making of directions for the determination of the application for costs is irrelevant;
- (iii)an application for costs must not only be made but also considered and determined prior to any formal dismissal of the complaint; and
- (iv)subsequent to 12 December 2019 the court did not have the jurisdiction to make a costs order in favour of the appellant.”
The application to this Court
- [21]The applicant applies to this Court for leave to appeal the decision of the primary judge pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).
- [22]She proposed grounds of appeal to the following effect.
- [23]First, the primary judge erred in ruling that the Magistrate had no jurisdiction to award costs. This ground invited the Court to reconsider and then depart from Bell because it was founded on a view of what constitutes a "formal dismissal" or, to use the words of ss 158 and 159, an "order of dismissal", which was not supported by either the language or the intention of the relevant provisions of the legislation.
- [24]Second, and in the alternative, 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.”
The first proposed ground of appeal
- [25]As mentioned, this proposed ground of appeal seeks to persuade this Court to reconsider and then to depart from Bell.
- [26]One important consideration should be mentioned at the outset. In Lynch v Commissioner of Police [2022] QCA 166, this Court held that an applicant who contends that it should depart from its own earlier decision as to the proper construction of the same legislation faces formidable hurdles. Beech AJA (with whom Morrison and Bond JJA agreed) examined the many cases which have elucidated the legal principles governing the question when an intermediate Court of Appeal should depart from its earlier decision[1] and summarised the position in these terms:[2]
“It is apparent from these decisions that a party, such as the appellant, who contends that this Court should depart from an earlier decision as to the proper construction of legislation faces a high threshold requiring materially more than mere persuasion that the construction advanced by the party is the preferable one. Rather, the appellant must persuade the Court to have a strong conviction that the earlier decision is wrong. That has been expressed in various forms of words, including that the earlier decision is ‘opposed to the undoubted intention of Parliament as enacted’, has a ‘patent’ error of construction or is ‘plainly wrong’. I do not perceive these various formulations of the approach to differ in their material substance; they are all ways of expressing the same essential concept.
The reasons for this caution in departing from an earlier decision as to the interpretation of a statute are readily apparent. Experience shows that ambiguity in statutory language is commonplace. Thus, there will often be a choice to be made between competing constructions each of which is reasonably open on consideration of the text, context and purpose of the statute. If the mere preference of a later court for a different interpretation were sufficient to justify departure from the earlier decision, the law and its administration would be liable to undesirable and unjustified instability on the basis of what Mason J termed ‘mere personal choice’. Adopting and adapting what was said by Gleeson CJ (Samuels and Priestley JJA and Hope AJA agreeing) in Clutha Developments Pty Ltd v Barry, if preference for a different construction were a sufficient basis for departure from the construction adopted in [the Court’s previous decision], next year a differently constituted court might prefer the construction adopted in [that decision] and revert to it.”
- [27]We turn then to address whether we can form the necessary strong conviction that Bell should be reconsidered.
- [28]Part 6 of the Justices Act governs proceedings in case of simple offences and breaches of duty. “Simple offence” is defined in s 4 to include indictable offences punishable on summary conviction before a Magistrates Court.
- [29]Section 144 confers jurisdiction on the Magistrates Court to hear and determine complaints in respect of simple offences or breach of duty, where both parties appear personally or by their lawyers. The jurisdiction to “hear and determine” necessarily carries with it the jurisdiction to dismiss a complaint in appropriate circumstances.
- [30]But that much is also made explicit by s 146 which provides that where a defendant pleads not guilty the court may –
- (i)“determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require”; or
- (ii)“…upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing.”
- (i)
- [31]If a matter is not adjourned, then the apparent options are that the court will either (1) convict the defendant, (2) make an order against the defendant, or (3) dismiss the complaint.
- [32]The court is also empowered to require costs to be paid on each of those occasions. Thus:
- (a)s 157 provides:
- “157Costs on conviction or order
- In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.”
- (b)s 158 provides:
- “158Costs 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.
- (2)When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.”
- (c)s 159 provides:
- “159The 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.”
- [33]Notably, s 157 confers a discretion on the court to “… order by the conviction or order” payment of costs. And, when the court, instead of convicting or making an order against a defendant, dismisses a complaint, s 158 provides that the court “may by [its] order of dismissal order” payment of costs. The word “by” in the phrases just highlighted is used to identify the means by which the power must be exercised. The terms by which the power is conferred suggest that it is may only be exercisable by the specified means, and not otherwise. And s 159 strongly suggests that if the power is to be validly exercised, the order concerned must specify the amount ordered to be paid. Two conclusions may be drawn:
- (a)It is a condition of validity of the exercise of power under s 157 that it be made by the means of the particular type of dispositive order identified in the section (namely a conviction or other order against the defendant) and that the order specify the amount of costs ordered.
- (b)It is a condition of validity of the exercise of power under s 158 that it be made as part of the particular type of dispositive order identified in the section (namely an order of dismissal) and that it specify the amount of costs ordered.
- (a)
- [34]Of course, that begs the question as to when each type of dispositive order must be regarded as having been made. Is it when an oral pronouncement to the relevant effect is made in open court? Or is it when some form of written record is made? Or is it when some other formal record is made of the type of order concerned? What are the formal requirements for the making of such orders?
- [35]The following observations may be made.
- [36]First, requirements as to form appear in Part 6 Division 4 “Dismissal” and in Part 6 Division 5 “Convictions and orders” of the Justices Act. However, it is not legitimate to regard sections found in those divisions to be limited in operation to the matters identified by the division heading. For example, s 150 is to be found in Division 4, yet it deals only with convictions and orders and not dismissals. And s 152 is to be found in Division 5, yet because it applies to convictions and orders or “any other record of a decision” must be taken to apply more broadly and including to dismissals.
- [37]Second, and importantly, s 152 specifically records that, subject to the Criminal Practice Rules 1999 (Qld), it is unnecessary for a Magistrate or a clerk of the court to formally draw up a conviction or order, or any other record of a decision, unless, for the purpose of an appeal, or a return to a writ of habeas corpus or other writ from the Supreme Court, a party demands a conviction or order or any other record of a decision to be formally drawn up. “Decision” is broadly defined by s 4 as including “a committal for trial or for sentence, a conviction, order, order of dismissal or striking out or other determination.” Amongst other things, rr 59 and 62 of the Criminal Practice Rules combine to require the proper officer of the Court to make a “verdict and judgment record” which must contain the name of any person “tried, sentenced or otherwise dealt with by the court” and, amongst other things, must also contain the verdict, sentence, judgment or any other order made in relation to the person.
- [38]Third, in the case of conviction or the making of an order against a person, s 150(2) requires the Magistrate to make a minute or memorandum of the conviction or order and sign it. If the person is not present, the clerk of the Court must give the person written notice by post: s 150(3).
- [39]Fourth, s 151(3) requires that the clerk of the court must make a record of the conviction or order and “any other matter”, as required under the Criminal Practice Rules. That record is defined as a “verdict and judgment record”. As previously noted, the effect of the Criminal Practice Rules is that the verdict and judgment record must also contain the verdict, sentence, judgment or any other order made in relation to the person.
- [40]Fifth, in the event of a demand under s 152 for the purposes of an appeal, convictions or orders must be drawn up in proper form by the Magistrate or the clerk of the court and filed with or by the clerk of the court: see ss 151(1) and (2). But even then, pursuant to s 151(4), a verdict and judgment record relating to a conviction or order is to be regarded as a sufficiently proper form of the conviction or order for the purposes of s 151(1).
- [41]The result of the foregoing analysis is that it must be accepted that in the ordinary course of exercising the jurisdiction under s 144, it is not necessary for a Magistrate to cause orders to be drawn up formally, although, some formality may be required for particular purposes.
- [42]One purpose for which some degree of formality is explicitly required is specified in s 149, which provides:
- “149Dismissal of complaint
- If the justices dismiss a complaint, they may, if required so to do, and if they think fit, make an order of dismissal, and give the defendant a certificate thereof, which certificate shall upon production and without further proof be a bar to any subsequent complaint for the same matter against the same person.”
- [43]Section 4 defines “complaint” as including “charge”. The terms of s 149 make a distinction between dismissing a charge and the formal step of making an “order of dismissal”, the latter only becoming necessary if the Magistrate is required to make such an order for the purposes of a defendant obtaining a “certificate thereof”. There is no reason why the request for an “order of dismissal” and the “certificate thereof” could not occur after the Magistrate had dismissed the charge.
- [44]Let it be assumed, for example, that a few days after 12 December 2019 the present applicant had made a request of the Magistrate pursuant to s 149 in relation to the charges which had been dismissed. On that assumption, s 149 would have then empowered the Magistrate, if she thought fit, to make an “order of dismissal” and then to give the applicant a “certificate thereof”. In that context “order of dismissal” would have to be construed as a reference to a formal step other than the steps which had already been taken, essentially formally recording the dismissal, so that a certificate “thereof” could then be produced. But in that context the “order of dismissal” would be something which was formally made after the charges had already been dismissed by an order made by the Magistrate.
- [45]Let the analysis be tested by making a different assumption. Assume, for example, that the Magistrate had never had her attention drawn to Bell, had proceeded to hear the costs application in March 2020 and had determined that the complainant should pay the applicant $1,000 costs pursuant to s 158. On the same logic as applied in relation to s 149, the Magistrate might then have formulated an order which formally recorded the dismissal (much as she would have in response to a s 149 request) and which required the complainant to pay $1,000. On the authority of Bell, such an order would be beyond power because the order so formulated could not be regarded as an “order of dismissal” within the meaning of s 159, such an order having already been made on 12 December 2019.
- [46]There are a number of reasons why we regard that conclusion to be founded on a most unpersuasive interpretation of the Justices Act.
- [47]First, it construes the phrase “order of dismissal” as a reference to any order made by the Magistrates Court which brings about an effective dismissal of charges. But that is not consonant with the textual distinction made in s 149 between dismissing a charge and the formal step of making an “order of dismissal”. There is no reason why the reference in those sections ss 158 and 159 to “order of dismissal” may not be similarly construed.
- [48]Second, and further, the conclusion that the fact of an effective dismissal order which has made no reference to costs operates to foreclose the possibility of any subsequent order for costs is inconsistent with the text of s 158A. As to this:
- (a)
- (b)The section specifies a number of specific considerations which must be taken into account in exercising the discretion as to costs conferred by s 158.
- (c)Amongst other things, it provides as follows:
“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 –
…
- (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”
- (d)Section 158A(2)(d) explicitly contemplates that a costs order under s 158 may be made after a charge has already been dismissed on technical grounds.
- [49]Third, in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Mason and Wilson JJ commented (at 320–1) that in the choice between competing interpretations “… the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention”.[4] Courts and parties often find it convenient and efficient to address costs at a time after the “event” (in this case the dismissal) has already occurred. We think it is improbable that the legislative intention was to render impossible such a course. Section 158A(2)(d) supports that conclusion.
- [50]In our view the answer to the question of what is capable of being regarded as an “order of dismissal” must depend on the context in which the question arises. For the purposes of s 149 the phrase must be construed as a reference to an order formally made after a charge has already been dismissed and for the purposes of issuing a “certificate thereof”. For the purposes of s 158A(2)(d) the phrase would be a reference to the order which has been made dismissing the charge. But for the purposes of ss 158 and 159 it encompasses an order which formally records a dismissal having been ordered and orders an amount of costs to be paid, even if there had been some earlier order dismissing the charges.
- [51]Although the view just expressed is the view which we prefer, it then becomes necessary to address whether it is appropriate to reconsider Bell. For three reasons we think it is. First, there is no evidence that the textual distinction identified in [42] and [43] above was either drawn to the attention of the Court or considered by it. Second, as we have mentioned, the terms of s 158A(2)(d) cannot be reconciled with the notion that a costs order cannot validly be made after a complaint has already been the subject of dismissal, and s 158A was introduced after Bell was decided. Finally, reconsideration would avoid substantial injustice in the present case and substantial inconvenience and inefficiency in other cases.
- [52]Although the Magistrate and the primary judge were plainly correct to follow Bell because it was a decision of the Court of Appeal which could not legitimately be distinguished by them, we would reconsider Bell and decline to follow it. On that basis, the Magistrate and the primary judge may each be found to have erred in concluding that it was not open to the Magistrate to hear and determine the costs order before her. It was open to the Magistrate to do so. In the event that the costs application failed, no further order would be necessary than an order refusing the application, unless the applicant sought an “order of dismissal” under s 149. But if the costs application succeeded in relation to one or more of the charges and the Magistrate determined that the complainant should pay to the applicant a particular sum, it would have been open to the Magistrate to make an order which formally recorded a dismissal having been made and ordered an amount of costs to be paid, notwithstanding that there had been earlier orders dismissing the charges concerned. Such an order would fall within the meaning of “order of dismissal” in ss 158 and 159.
- [53]Leave to appeal should be granted and the first proposed ground of appeal upheld.
The second proposed ground of appeal
- [54]Because we would uphold the first proposed ground of appeal, it is not necessary to consider the second proposed ground of appeal. Nevertheless, we should briefly address some remarks to it.
- [55]Both the Magistrate and the primary judge correctly applied Bell, as they were bound to do absent a decision of this Court reconsidering Bell. On the authority of Bell, the effect of the oral pronouncement and endorsement of the file identified at [9] above was to foreclose the possibility of any subsequent order for costs in respect of the dismissal of charges 5 and 7 of 8. And the effect of the oral pronouncement and endorsement of the file identified at [13] above was to foreclose the possibility of any subsequent order for costs in respect of the dismissal of charges 2 and 3 of 7.
- [56]The primary judge found that before the first order was made, the Magistrate had been told that there would be an application by counsel for the applicant with material to be filed. And the primary judge found that the applicant’s application for costs was made before the second order had been made. Nevertheless, the primary judge concluded that “[w]hile this is correct, it does not assist the appellant”. That was an inadequate assessment of what had occurred.
- [57]The primary judge’s own findings revealed that a procedural unfairness had occurred below which had denied the applicant of her rights. Having been apprised of the applicant’s intention to make an application in relation to the charges which she had been told were to be dismissed, the Magistrate should not have made orders for dismissal without ascertaining the nature of the application. Having ascertained that the application was for costs orders, the Magistrate should not have made orders for dismissal without hearing and determining the entirety of the proceeding before her, which meant determining whether or not the orders of dismissal should merely dismiss the charges or should specify some amount for costs. And, if that could not have been conveniently dealt with on that day, the Magistrate should have taken the course identified in Bell, namely to postpone making the orders of dismissal until she was in a position to make a final determination on the costs application. By dismissing the charges on 12 December 2019, the Magistrate denied the applicant procedural fairness, in the sense that her Honour made orders finally determining the proceeding before her without giving the applicant the opportunity to be heard in relation to her foreshadowed application, thereby, if Bell truly represented the law, foreclosing the applicant’s ability ever to be heard on that application.
- [58]It was not the contemplation of any of the participants in the events of 12 December 2019 that the applicant be denied her rights to have her costs application heard and determined, yet that was the outcome. That such an outcome was substantially unfair to the applicant was recognised by the Magistrate in her reasons for the order under appeal to the primary judge, when the Magistrate observed:
“There has been, it would seem to me, an unfortunate and inadvertent consequence as a result of the matters being formally dismissed on the 12th of December 2019. I accept that that was an unintended result by the respondent …”
- [59]If the primary judge had identified the procedural unfairness, the primary judge could not have remedied it without an amendment to the notice of appeal so that it became an appeal from the orders of dismissal. However, that would not have proved to be an insurmountable obstacle, because the primary judge had broad powers which might have been exercised to achieve that goal:
- (a)Section 228 instructs that no appeal shall be defeated merely by reason of any defect whether of substance or of form in any notice of appeal or in the statement of the grounds of appeal.
- (b)Section 224 empowered the primary judge to make orders on her own initiative, including to extend the time for filing of a notice of appeal and to amend the notice of appeal or the statement of grounds of the appeal.
- (c)And s 225 clothed her Honour with sufficient power to set aside the orders for dismissal and to send the proceeding back to the Magistrates Court with directions.
- (a)
- [60]In our view, in light of the fact that – if Bell was to be followed – in this unusual case the dismissal of the charges on 12 December 2019 caused such obvious substantial injustice, even if we had formed the view that Bell should not be reconsidered, we would have found that the primary judge erred by not identifying the procedural unfairness which had occurred in the Magistrates Court and by not making remedial orders to address it. The error would have been regarded to have caused substantial injustice to the applicant. If it had been necessary to do so, we would have granted the application for leave to appeal and upheld the proposed second ground of appeal.
Conclusion
- [61]We make the following orders:
- 1.The application for leave to appeal is granted.
- 2.The appeal is allowed.
- 3.The order made by the primary judge on 28 July 2021 is set aside.
- 4.The following orders are substituted for the orders made by the primary judge on 28 July 2021:
- a.The appeal is allowed.
- b.The order of the Magistrate of 4 June 2020 is set aside and the proceedings are sent back to the Magistrate with directions –
- i.to hear and determine the applicant’s application for costs orders in relation to the four charges; and
- ii.in the event that the application succeeds in relation to any of the charges, thereafter to specify such amounts as are allowed for costs in orders of dismissal of the charges concerned.
- 5.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.
Footnotes
[1]Lynch v Commissioner of Police [2022] QCA 166 at [60] to [68].
[2]Lynch v Commissioner of Police [2022] QCA 166 at [69] to [70], footnotes omitted.
[3] Section 158A was introduced in 1992 by Act No. 40 of 1992, which was assented to on 14 August 1992.
[4] See also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).