DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24 September 1999 two complaints came before a Stipendiary Magistrate at Inala. The first alleged that on 16 September 1998 the respondent was the keeper of a dog named Jessy, which dog did attack a man in Bamboo Street, Inala and that on that day the respondent was the keeper of a dog, namely Jessy, of an age of three months or over which was not a registered dog and which was ordinarily kept at particular premises. The second complaint alleged similar offences in respect of a dog named Lucky. The Magistrate dismissed the complaint in respect of the dog named Lucky; in respect to the dog named Jessy, he found the charge proved that this dog did attack a man, but dismissed the charge of keeping an unregistered dog.

2. [2]
   For the offence for which he was convicted, the respondent was required to enter into a recognisance in the sum of $500 to be of good behaviour for six months, on condition that he erect such fences as were required to keep dogs enclosed on his property except when under a leash held by a person capable of controlling them. The Magistrate made an order that the respondent pay court costs of $59 and $70 witnesses expenses, but would not make any order for payment of the appellant’s professional costs.

3. [3]
   By this appeal, the appellant challenges the dismissal of the charges of keeping an unregistered dog, and submits that the respondent ought to have been convicted of those charges. In relation to the offence for which he was convicted, the appellant challenges the failure to order the respondent to pay professional costs. It is convenient to deal with these separately, and the appeal in relation to the charges of keeping unregistered dogs first.

Keeping Unregistered Dogs

4. [4]
   It was common ground during the hearing that the respondent did keep the two dogs in question at the premises alleged in the complaint: decision p. 2. There was evidence that on the day in question a local laws officer spoke to the respondent about the dogs, and issued infringement notices, and there was evidence that the same day the respondent went to a council office and registered the dogs. There was a dispute at the trial as to which occurred first in time, which dispute was not ultimately resolved by the Magistrate.

Certificates Under Justices Act s. 98K

5. [5]
   The Magistrate also had certificates purportedly given under s. 98K of the Justices Act 1886, one of which stated:

“In relation to dog registration, a dog, namely a female, desexed, sable German Shepherd, named “Jessy” was registered to [the respondent] on and from 16 September 1998.  [registration number given].  This registration is current until 30 September 1999.”

There was a similar certificate in respect of the dog called “Lucky”.  The Magistrate took the view that these certificates on their face meant that from one minute past midnight on 16 September 1998 and hence the whole of that day the two dogs were registered to the respondent, and that the evidence called on behalf of the complainant was not sufficient to displace the evidentiary effect of the certificate so that he could not be satisfied beyond reasonable doubt that the two dogs were not registered on the relevant date. 

6. [6]
   The difficulty with this line of reasoning concerns the validity of the certificates purportedly given under s. 98K. The appellant did not dispute the validity of these certificates, which were among a number of certificates put in evidence on behalf of the appellant at the trial, but in my opinion what they purport to certify does not fall within any of the terms of s. 98K(2). The particular paragraph in that subsection sought to be relied on was the paragraph which permitted a certificate to be given as to the ownership of a particular animal, but it is apparent that what is relevant to a charge of keeping an unregistered dog is not the ownership of the dog, but whether or not it is kept, and whether or not it is registered. This is apparent from a perusal of the subordinate legislation of the Brisbane City Council. Registration of a dog is not a system of registration of title, much less a system of title by registration. In my opinion, the certificates relied on in relation to the registration of the dogs “on and from 16 September 1998” did not come within s. 98K and were of no effect, and should therefore have been disregarded by the Magistrate.

7. [7]
   Had there been such certificates validly before the court, and had they been the only reliable evidence as to the question of whether or not the dogs were registered on 16 September 1999, I think with respect that the Magistrate would have been correct in interpreting the certificates as evidence of registration on that date. However, for the reason I have given, the certificates ought to have been disregarded. The question of whether or not the dogs were registered falls to be determined on the basis of the evidence properly before the Magistrate.

8. [8]
   It was open on the evidence to find that the respondent had been spoken to by the council officer at a particular time on 16 September 1998, and that subsequently on the same day he had registered the two dogs at an appropriate council office. The question of whether or not the dogs were registered on that date depends on the factual issue of whether or not certain things were done on that day, and the legal issue of when registration took effect. If the registration took effect as from the beginning of the day, that is once the dog was registered, it had to be treated as having been registered for the whole of that day, and it would not matter whether it was registered before or after the respondent was spoken to by the council officer. If the registration took effect only from the following day, the same would apply. If the registration took effect from the moment that it occurred, it would follow that for part of 16 September 1998 the dogs were registered, but whether they were registered for the balance of that day depended on whether they had been previously registered and whether, if so, that registration had expired.

Provisions of Brisbane City Council Legislation

9. [9]
   Council for the appellant referred to s. 19(2) of the Brisbane City local law (Keeping and Control of Animals) 1997 (“the local law”) which provides that “registration is granted for the term specified in the local law policy” and s. 8 of local law policy Number 1 (“the local law policy”) which provides that for the purposes of s. 19 of the local law:

“Permits and registration will ordinarily be for a term of 12 months from the date of issue of that permit”.

It was submitted that the effect of these two provisions taken together was that registration, once it was granted, took effect for a term “from the date of issue” which in accordance with its ordinary meaning excluded the date of issue.  If this were the case, then it would not matter (except for the purpose of sentence) at what time on 16 September the registration was effected because the dogs only began to be registered on 17 September, so that the offence of keeping registered dogs on 16 September was made out. 

10. [10]
    By s. 8 of the local law:

“A local law policy may require the keeper of an animal of a particular species or breed to register the animal under this part.”

By s. 2(a) of the local law policy, dogs are animals which must be so registered.  Division 6 of the local law is entitled “Obtaining Permits and Registration” but so far as I can see says nothing about how one goes about obtaining registration.  Sections 14-18 and 20-24 apply only to permits, while s. 19 merely says, relevantly, that:

“Registration is granted for the term specified in the local law policy”.

Section 25 deals with revocation of registration and subsection (5) assumes that upon registration a person applying for registration will obtain a “registration receipt” and a “identifying tag”, since there is an obligation on such person, in the event of revocation of registration, immediately to surrender both of these items.  The assumption that registration will result in the issuing of a identifying tag by the council also underlines s. 9(2) of the local law, which makes it an offence for the keeper to fail to ensure the animal wears that tag. 

11. [11]
    The explanation for this lacuna in the local law is that the relevant mechanism is found in the local law policy; I do not understand why this is so, but assume that such an arrangement is valid and effective. By s. 2(c)(6), an application for registration in the prescribed form must include particulars of the keeper, and a full description of the dog, be accompanied by the appropriate fee payable, and include details of previous registration history if applicable. Part of s. 2 of the local law policy provides as follows:

“Upon registration, council will:-

3. (1)
    Issue a receipt where requested in the prescribed form for the prescribed fee;

3. (2)
   Allocate a registration number in respect of the dog described in the application form;

3. (3)
   Issue the applicant for registration a Council approved “identifying tag” which will include the following information:

1. (a)
   the name of the Council

2. (b)
   the registration number allocated in respect of the dog in accordance with para. (b) [sic];

(c)the year in which the registration expires;

(d)details of previous registration history if applicable.

3. (4)
   The Council must cause to be kept a record showing particulars in respect of every dog registered under the provisions of this local law relating to registration.”

12. [12]
    By s. 19(2), registration is granted for the term specified in the local law policy. By s. 8 of the local law policy:

“For the purposes of s. 19 of the local law (Keeping and Control of Animals) permits and registration will ordinarily be for a term of 12 months from the date of issue of that permit.”

Those appear to be the only relevant provisions, but it is possible that there are other provisions which I have missed;  the division of the relevant provisions between the local law and the local law policy, and an absence of any apparent logic in the arrangement of both, make the relevant provisions difficult to identify and follow.  I was not, however, referred to any other provisions in the very thorough outline of submissions on behalf of , so it is unlikely that there is anything else relevant that I have missed.  I think it may be helpful to the Council to have the terms of this legislation reviewed by its legal advisors.  They would be easier to follow if they were as clear and thorough as the outline of submissions for this appeal. 

13. [13]
    It seems to follow from this that when an application for registration is received, the council, presumably if satisfied that the application is in order, will register the dog whereupon it will issue a receipt for the fee, allocate a registration number, and issue an identifying tag bearing that number. Neither the local law or the local law policy appears to identify what the requirements are for registration, or identifies the basis of the decision of the council whether or not to register, or identifies precisely what constitutes the act of registration, but this may not matter. One thing however which would seem to follow from s. 8 of the local law policy is that part of the process of registration would be the determination of the term of registration. Saying that a particular term will “ordinarily” apply to registration indicates to me that there is to be a capacity in a particular case to depart from that specified term, and indeed it may be that there is a discretion as to the term, with no more than a prima facie position that the term of 12 months from the date of issue of the permit will apply in the absence of some good reason to apply a different term. Whatever the true position is, it is clear, in my opinion, from s. 8 that a term of “12 months from the date of issue of that permit” may not in a particular case be the term of the registration. Of course the word “permit” at the end of this provision should be read as “permit or registration as the case may be.”

14. [14]
    It follows that, although the local law policy does not expressly say that one of the things to be done upon registration is the determination of the term of the registration, that must be the case. No doubt if there were a provision which expressly set out what was decided upon registration, that would have been included. I think it also follows that this must be one of the particulars which should appear in the record which the council must cause to be kept in respect of every dog registered. It may well also appear on the “registration receipt”. In those circumstances, the question becomes what was the effect of the particular registration which occurred on 16 September 1998.

15. [15]
    Interestingly, the purported certificates under s. 97K of the Justices Act refer to a term which is different from that stipulated as the ordinary term by s. 8 of the policy, which suggests that perhaps there was a different term determined in the present case;  but those certificates, not being justified by that section, were inadmissible and therefore should not be a basis for speculation as to the actual term of the registration of these dogs.  

16. [16]
    Accordingly, in a particular case, in order to prove the term of registration it would be appropriate to prove the record required to be kept under the local law policy. If the record is kept in a book or register it could be proved by its production from proper custody, or a copy of the record could be proved pursuant to s. 105 of the Evidence Act 1977.  If the record is kept on a computer, an appropriate printout can be proved pursuant to s. 95 of the Evidence Act 1977.  There may well be other ways of putting proper proof before the court, but a certificate under s. 98K of the Justices Act is not one of them.

17. [17]
    It may be, of course, that there was no particular decision made when these dogs were registered as to the term of the registration, and if that were the case, it would follow from s. 8 of the local law policy that the term was “12 months from the date of issue of that permit”. The submissions on behalf of the appellant proceeded on the basis that this was the term of the registration, and as I have explained, in my opinion, the appellant did not in the Magistrates Court prove that that was the case. But if the submission is correct it would not matter when on that day the dogs were registered, so I need to consider when any registration takes effect.

Authorities On Time

18. [18]
    It is a long standing principle of law that fractions of a day are generally disregarded for the purpose of the operation of contracts and statutes. A day was regarded as something essentially indivisible, so that when time starts running from a particular day, fractions of a day are disregarded and the time runs from midnight: Lester v. Garland (1808) 15 Ves.Jun. 248 at 257, 33 ER 748 at 752;  Cartwright v. MacCormack Trafalgar Insurance Co Ltd [1963] 1 WLR 18; Forster v. Jododex Australia Pty Ltd (1972) 127 CLR 421 at 446.  This, I suspect, is a carry over from the mediaeval concept of time as something which passed in discrete lumps consisting of one day each rather than as a continuous stream. Hence, people would speak of the day when Edward the King was alive and dead:  Potter “Historical Introduction of English Law” (4^th ed., 1958) p. 12. See also Holdsworth “A History of English Law” vol 2, p. 34.  This was a reference to 5 January 1066, the day on which King Edward the Confessor died;  because on part of that day he was alive then he was alive that day, and because on part of the day he was dead, he was also dead that day.  It was at the same time the last day of his life and the first day of his death. 

19. [19]
    The same approach led to the traditional rule for computing age, that in law a person attained a particular age on the day before the anniversary of his birth: Prowse v. McIntyre (1961) 111 CLR 264.  This rule, which has now been changed by statute (Acts Interpretation Act 1954 s. 38A) had previously been criticised, for example in that case by Kitto J who said that the rule about indivisibility of days did not provide a logical foundation for it (281 274) and by Windeyer J who said it was originally derived from what seemed to be mistaken reasoning: p. 281.  The theory seems to have been that a person who was one year old would have been alive for 365 days;  the date of one’s birth was the first of these days, and the day before the anniversary of one’s birth was the 365^th, so on that day one had been alive on, and hence for, 365 days, that is one year.  Accordingly, 20 years later one had been alive for 21 years, and had therefore attained one’s majority.  If one envisaged the year as being a pile of 365 tokens, each worth one day, the first being put down at the moment of one’s birth, and each subsequent token added at the first instant of each succeeding day, one would have 365 tokens and hence a full year at the first instant of the day before the anniversary of one’s birth.  If one envisaged age being based on the completion of such piles, and treated as an adult a person who had 21 completed piles, the rule was, in my opinion, logical, but inappropriate in the context of a more modern understanding of the concept of time. The idea may be of Roman, or earlier, origin, and for some purposes at least age was calculated in this way under Roman law:  Jolowicz “Roman Foundations of Modern Law” (1957) p. 121, 123. Note also the mediaeval fondness for the period of a year and a day, to ensure the lapse of a full year: Prowse at p. 280.

20. [20]
    The reasons in Prowse did emphasise that ordinarily periods of one day were treated as indivisible by the law:  fractionem diei non recipit lex (p. 270).  Hence the relevant issue, whenever a period of days had to be computed from a particular act or event, was whether to start the reckoning from the beginning or the end of the day it occurred: p. 280 per Windeyer J.  Ordinarily one does not compute a period of time from the particular moment in time at which the relevant act occurs.  Such a computation was rejected by Grant MR in Lester v. Garland (1808) 15 Ves.Jun.248 at 257; 33 ER 748 at 752, and by Helsham J in Re: Schlesinger (1970) 92 WN (NSW) 753 at 756.  As to whether the day of commencement is to be included or excluded, there was said by Windeyer J to be no universal rule;  where it was not prescribed by statute, the answer depended upon context and circumstances: p. 280.  A similar view was expressed by Barwick CJ in Associated Beauty Aids Pty Ltd v. Federal Commissioner of Taxation (1965) 113 CLR 662 at 668 where he favoured a prima facie position that the period commences at the end of the day;  in the same case Windeyer expressed a preference for the contrary position: p. 669.  Owen J said that usually what was intended was the exclusion of the day of the event which caused time to run (p. 671) but it is clear that no member of the court sought to lay down a binding rule. 

21. [21]
    It was also submitted that as a general rule where a period of time was specified as running “from” a particular date, the date from which the period runs is excluded, although a context could indicate to the contrary: Foster v. Jododex Australia Pty Ltd (1972) 127 CLR 421 at 440-1; Hughes v. N M Superannuation Pty Ltd (1993) 29 NSWLR 653 at 667. Such an approach was consistent with the terms of s. 38(1) of the Acts Interpretation Act 1954.  In its current form, the subsection provides:

“If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and -

1. (a)
   if the period is expressed to be a specified number of clear days or at least a specified number of days – by excluding the day on which the purpose is to be fulfilled;  and

2. (b)
   in any other case – by including the day on which the purpose is to be fulfilled.”

22. [22]
    It was submitted that this applied to the words of s. 8 of the local law policy, but in my opinion this statutory provision is not applicable, because s. 38(1) is concerned with a period “allowed for a purpose” being a “purpose” which is “fulfilled”. The statute is concerned with defining periods within which a person is either required or allowed to do something. For example, if a person is allowed to file a Notice of Appeal within a particular period after a decision is given from which a person wishes to appeal, then this provision would take effect. It would also apply to a situation where a person was required to carry out work under a statutory notice within a specified period. But the registration of a dog is different; there is no particular purpose to be fulfilled during the period allowed by the registration. The effect of registration is simply that, during the period while the dog is registered, it is not an offence to keep the dog. In my opinion, s. 38 is not directly applicable in the present case.

Cases On Same Day Licences

23. [23]
    If the respondent did have the idea of seeking to escape prosecution for the offence by registering the dogs the same day, his idea was ingenious but not novel. In Campbell v. Strangeways (1877) 3 CPD 105, the respondent was prosecuted for keeping a dog without a licence following a visit from an inspector in the morning of a particular day, and he had obtained a licence later the same day.  The Magistrate there held that the licence once obtained was in force for the whole of that day, so the offence was not made out, and dismissed the complaint.  On appeal this was overturned.  The relevant provisions of the statute 30 Vic..c.5 were section 5:

“Every licence shall commence on the day on which the same shall be granted, and shall terminate on the 31st day of December following”.

Section 8:

“If any person shall keep a dog without having in force a licence granted under this Act, authorising him so to do … he shall for every such offence forfeit the sum of £5.”

Grove J said at p. 107:

“Effect can only be given to the Act and to the language of s. 8 by holding that the offence was actually committed on the date alleged and could not be purged by the defendant taking out a licence at a later hour of the same day. … [Fractions of a day will be taken into account when necessary] … The provision that the licence shall commence “on” the day does not necessarily mean that it shall begin at the first moment of the day, but that it shall not go further back than that day. … The sections can be read in a manner not inconsistent with each other, that the respondent did “keep a dog without a licence” that the licence afterwards granted “on” the same day commenced “at and from” the time when actually issued, and was no protection to him for the past offence and that he was, therefore, liable,”

Lindley J agreed with this construction of section 5. 

24. [24]
    The effect of this analysis was that the existence of a provision making it an offence to keep a dog without a licence was treated as providing a statutory context to prevent the ordinary rule, that fractions of a day were disregarded, from taking effect. Had that rule been applied, on the wording of s. 5 it was inevitable that the licence would be regarded as being in force for the whole of the day on which it was granted. The court was so reluctant to accept the notion that a licence subsequently granted could validate conduct which had been an offence prior to granting of the licence, that it regarded as a better solution treating the licence as being in force only on that part of the day on which it was granted which followed the instant when it was granted.

25. [25]
    This analysis was cited with approval (but distinguished) by Harman LJ in Trow v. Ind Coope West Midlands (Ltd) [1967] 2 QB 899 and 921. The result was the same with a fishing licence in Wharton v. Taylor. The Times 14 May 1965 [1965] Crim.L.Rev. 432 where a divisional court allowed an appeal from an acquittal by a Magistrate when the licence obtained later the same day was expressed to apply for the whole of the year 1964.   It has also been followed in two Australian cases where the same stratagem has been employed, although for different types of licences.  

26. [26]
    In Beare v. Ward [1928] SASR 1, the respondent was the subject of a complaint under the Federal Wireless Telegraphy Act of maintaining an apparatus for the purpose of receiving messages by wireless telegraphy without a licence, as a result of a visit at 10.30 a.m. by an inspector who discovered him in possession of an unlicenced crystal wireless receiving set.  Later the same day he obtained a licence, and the complaint was dismissed on the basis that the licence he then obtained was treated as being in force for the whole of that day.  On appeal, however, Angus Parsons J said that the necessity and justice of the case made it proper to ascertain the precise time when the relevant events occurred, and that as the respondent during the earlier part of the day was in fact committing the offence, the appeal should be allowed and a conviction recorded.  It followed that, as the commentator in the Australian Law Journal put it (2 ALR 29):

“Holders of wireless receiving sets accordingly cannot with impunity disregard the Act until visited by a government inspector, and escape the consequences by taking out a licence on the same day.”

27. [27]
    It was also followed when an enterprising Tasmanian fisherman tried the same idea more recently: Haslock v. Blith [1968] Tas SR 1.  It seems therefore that the respondent was pursuing an argument which was not supported by such authorities on the subject as exist. These authorities are consistent with the proposition that, for the purposes of the criminal law, so long as all of the elements of an offence were made out at some time, the offence is committed and it does not matter if one element subsequently ceases to apply: R v. Lobston [1983] 2 Qd.R. 720.

28. [28]
    These cases provide support for the argument that it would not be appropriate to interpret the legislative provisions for fixing the period of the registration as giving it some retrospective effect, because that would enable this device to work. I think there is a good deal of force in that submission where it applies to a term fixed by the legislation in question, but one can say that the proposition that the registration does not begin to take effect until the day after the day on which it is effected is equally unattractive, at least from the point of view of persons who do register their dogs. Consider a situation where the relevant events happen in the opposite sequence; a person who has not previously kept dogs acquires one and immediately registers it. If that registration does not take effect until the first moment of the following day, and that person were found later that same day to be keeping that dog, that person would, if the appellant’s submissions were accepted, be committing an offence of keeping an unregistered dog and would be liable to a penalty. No doubt in such circumstances no penalty would be actually imposed, but that, I think, ought not to be a matter of discretion. The real significance of these examples is that they point up the absurdity of disregarding fractions of a day in this situation. Neither the previous midnight nor the following midnight is a satisfactory point of commencement for the registration.

Conclusions As To Term Of Registration

29. [29]
    In my opinion the term of the registration commenced immediately upon the registration, that is at the particular moment when registration was effected. That is the result of the application of Campbell v. Strangeways and the cases that followed it. As well, in my opinion it is contrary to ordinary human understanding and expectation to say that if a person goes through the steps necessary to register a dog and the dog is registered by the council, and the council places the applicant in possession of the indices of registration (a receipt and an identification tag), the dog is nevertheless not registered until the instant on which the following day commences.  I think that once the council has in fact registered the dog, the dog is registered there and then, unless there was an express determination of a later time from which the registration took effect.

30. [30]
    The words in s. 8 of the policy are more directed to the identification of the point at which the term of registration ends, and the authorities as to the meaning of the word “from” should be applied to identify the time at which that terms ends. In the absence of the identification at some other hour, the term would be taken as ending at midnight, and the only question remains that of identifying the relevant midnight. Following the authorities on the effect of the word “from”, in my opinion, it ended at the last moment of the day which was the last day of a period of 12 months which commenced on the day following the date on which registration was effected; in other words, on the anniversary of the day on which registration was effected. If registration was effected therefore at 3 p.m. on 16 September 1998, the dogs were registered as from 3.00 p.m. on 16 September 1998, and remained registered up to and including 16 September 1999, for all of that day but for none of 17 September 1998 (unless the registration had been renewed in the meantime).

31. [31]
    It was not argued on behalf of the appellant that it would be impossible for the council to determine in a particular case a term which had retrospective effect, but in my opinion it follows from the Campbell line of cases that, whatever its purported term, a licence does not have retrospective effect.  Hence if the dogs were registered on 16 September 1998, that registration could not have been effective to prevent the respondent from being convicted of the offence of keeping unregistered dogs if he were proved to have been doing so earlier that day.

Consequences For Appeal

32. [32]
    It was therefore necessary for the Magistrate to decide whether he was satisfied that the registration of the dogs occurred after the defendant had been found keeping them. There was no finding that that was so, and I do not think that I can make one simply by reading the transcript of the evidence. There are other difficulties. If the dogs were registered on 16 September, whether the offence was committed really depended on whether they had been previously registered. There was evidence of an admission that they were not (p. 2) but this was disputed by the defendant (p. 23) and it is not clear that that evidence was accepted or that the Magistrate was satisfied by it; he referred to one of the dogs wearing a registration tag. The defendant’s evidence was that he kept his dogs registered: p. 24.

33. [33]
    There was also evidence of a computer search which, unless supported by some statutory provision, was inadmissible hearsay. There was some other evidence of the respondent which may amount to an admission that the dogs were not registered prior to his having registered them on 16 September (p. 25, line 24). But that issue was just not resolved by the Magistrate, and I cannot on appeal resolve it against the respondent beyond reasonable doubt, without hearing the evidence again. There is no power to remit the matter for rehearing: R v. His Honour Judge Dodds [1990] 2 Qd.R. 80.  If necessary, I could hear evidence myself (s. 223(3)) but I was not asked to do so, and will not.  The thrust of the appellant’s submission was that the dogs were not registered at all on 16 September, and I have not accepted that.  Any deficiency in the proof of the non-registration of the dogs on part of 16 September is really a produce of the conduct of the trial, and the appellant should not be allowed to remedy that on appeal:  R v. Paddon (CA 122/98, Court of Appeal, 28.8.98).  This aspect of the appeal therefore fails. 

Costs

34. [34]
    In this aspect of the appeal, it was submitted that the Magistrate had, in the exercise of a discretion under s. 157 of the Justices Act 1886, applied the wrong principle in refusing to order the defendant to pay to the complainant any amount for legal or professional costs.  Section 157 provides:

“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.”

35. [35]
    The issue involves the interpretation of the words “just and reasonable”. That is now affected by s. 158B inserted into the Act by s.60 of the Courts Reform Amendment Act 1997, which provides as follows:

“158B(1)  In deciding the costs that are just and reasonable for this division, the justices may award costs only –

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

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

3. (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.”

That provision commenced on 17 July 1999: see 1999 SL Number 98.  On the same day commenced the Justices Amendment Regulation Number 2 of 1999. This regulation provided relevantly a limitation of $1,500 for instructions and preparation for the hearing, including attendance on day one of the hearing.  This matter was dealt with in September 1999.

36. [36]
    The appellant relied on a series of decisions of the judges of this court for the proposition that, when the justices (i.e. the Magistrate) had determined that it was appropriate for an order for costs to be made, the quantum of such order should provide a proper indemnity on a party and party basis.

Cases On Costs

37. [37]
    In Keating v. Kneipp (Townsville Appeal 28/89, Wylie DCJ, 20.2.90, unreported) an appeal was allowed from an order for costs in the sum of $300 made against the complainant on the dismissal of a complaint. His Honour referred to the concept of costs in the legal context, and concluded there that was nothing in s. 158 of the Justices Act, the section dealing with costs against the complainant, or elsewhere to indicate that the term were used other than in its settled legal technical meaning of party and party costs: p. 5.  He concluded after a review of some early authority that:

“Costs in s. 158(1) means those costs, charges and expenses the defendant has reasonably and necessarily incurred to enable him successfully, either completely or in part, to defend himself against the charge alleged against him by the complainant:  in other words, it refers to party and party costs (p.9) … the words “as to them seem just and reasonable” do not, amount to an unfettered freedom arbitrarily to select an amount to be awarded by way of costs.  Justices must exercise their discretion judicially and for reasons which can be considered and justified.  What is done must be done having regard to all reasonable circumstances and must have rational justification either in the result or in the reasons for the result. (p. 10)”.

38. [38]
    There had been some reference to the civil scale of costs in the Magistrates Court, and that His Honour, after analysing the position carefully, concluded that reference to the civil scales was not appropriate, and that reference to the civil scales of other courts would rarely be profitable. This has now been vindicated by the legislative introduction of a special scale for costs ordered under the Justices Act.  His Honour noted that party and party costs were intended to represent an indemnity to the successful party, so that the starting point for any assessment ought to be the costs in fact charged by the successful party’s solicitor.  He noted that the indemnity was frequently not complete, and used in a somewhat special sense, a point emphasised in more recent authority to which I shall refer below.  He then expressed the opinion that the reasonableness of any actual cost, charge or expense had to be judged in the light of the circumstances of the case generally, and of the particular circumstances necessitating the making or payment thereof: p. 15. 

39. [39]
    The Magistrate had failed to give any reasons explaining how he arrived at the figure of $300, and it was not appropriate for a figure to be plucked out of the air. It was appropriate to ascertain a fair and reasonable amount by seeing first what amount was actually paid and then determining, on the basis of evidence and argument, what was a fair and reasonable indemnity. That would involve questions of whether particular items were properly claimed, or whether the claims made for particular items were more than was reasonable for that work. His Honour referred to Nicholson v. Milveskiy (OSC 20/84, Full Court, 6.12.84, unreported) as authority for the proposition that the underlying objective was to provide indemnity for successful party’s costs.  In that case as well, Andrews SPJ cited authority to support the proposition that “it is quite proper to have some regard to scales of costs appropriate in the Magistrates Court in civil proceedings in order to acquire some guide as to what is an amount which is just and reasonable in the circumstances of the particular summary proceedings.”  His Honour Judge Wylie did not regard this as a requirement that the individual amounts prescribed for items should be resorted to, rather than in a general way the principles governing the allowance of items of party and party costs should apply: p. 35. 

40. [40]
    In Hallam v. Condon (Townsville District Court Appeal 1/92), Wylie DCJ, 31.1.92, unreported), there was an appeal from an order that the defendant pay the complainant in respect of a prosecution for an offence under the Traffic Act an amount in respect of costs which included $400 professional costs, on the ground that professional costs should have been allowed in the amount of $940.  The Magistrate in assessing costs stated that he considered $400:

“…to be a reasonable payment in relation to this matter overall.  I am not going to go into any great detail except to say that I do not grant anything in relation to the first appearance on 29 March in view of the fact that a plea of not guilty was recorded.  Whilst I do not reject the reasonableness of the claim of $940, that is not at all an unreasonable claim, but looking at the length of time involved in this trial, and the limited scope of preparation, I think $400 is reasonable.”

His Honour regarded the failure to give reasons why a greater amount would not be allowed as an error of law itself, and expressed agreement with what he had said in Keating, that the order contemplated by the Act was an order which would provide a proper indemnity on a party and party basis, and continued:

“There is no room for plucking a figure out of the air, acting upon intuition;  nor is there room for charity if there be a view that the final amount of reasonable costs is still too much, perhaps bearing in mind the amount of the fine imposed.   In this case a fine of $50 was imposed, but the maximum penalty allowed was a fine of $1,200.”

His Honour held that the amount claimed for $940 was reasonably and necessarily expended in the prosecution of the matter in the Magistrates Court and allowed the appeal and substituted that amount for the amount of $400 allowed by the Magistrate. 

41. [41]
    The decision in Keating was also followed by His Honour Judge O'Brien in Foxwell v. Juszczak (Townsville Appeal 12/93, O'Brien DCJ, 20/8/93, unreported).  In that case the Stipendiary Magistrate, in relation to costs, allowed some amount for professional costs, but not the full amount claimed, apparently not allowing an amount of $510 claimed as the cost of preparation for trial, although without giving any reasons for his omission of that part of the claim.  The failure to give such reasons was held to be an error of law and it was held that there was no basis for not allowing those professional costs.  Accordingly, the appeal was allowed and the amount ordered to be paid by way of costs was increased by this amount of $510. 

42. [42]
    The approach in Keating v. Kneipp is consistent with both earlier and later authority.  In R v. Police Magistrate at Hughenden and Reid ex parte Cumming [1915] St.R.Qd.147, the court considered the appropriateness of an order made on a complaint under the Shearers and Sugar Workers Accommodation Act 1905-1906, under which there was an express power to order costs: s. 12.  Chubb J, who delivered the judgment of the court said at p. 155:

“Costs are an indemnity to the successful party, and they, in general, include fees to counsel or solicitors, fees of court, necessary disbursements, and witness’ expenses.  The only limit to their amount is that they must be necessary and reasonable.”

The court then went on to consider the various items of costs which made up the amount ordered to be paid by the Magistrate, and concluded that in respect of two of them the ordering of that amount was not justified, and indeed amounted to an excess of jurisdiction by the Magistrate.

43. [43]
    More recently, the High Court considered the question of costs, again on dismissal of a summary prosecution, in Latoudis v. Casey (1990) 170 CLR 534.  Mason CJ at p. 543 said:

“If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment to the unsuccessful party.  They are a compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”

Toohey J, at p. 565 also spoke of being just and unreasonable to the defendant against whom the prosecution had failed should not be out of pocket, although he went on to note two areas where it might be appropriate to depart from such a situation, where a defendant had given at the trial an exculpatory explanation which had not been given earlier, although he had had the opportunity of doing so, and where the conduct of the defence caused the proceedings to be unreasonably prolonged, where it was not appropriate that the entirety of the costs be recovered.  But the exercise of a discretion had to be based on the conduct of the defence in relation to the proceedings brought against him or her: p. 565.  McHugh J, the third member of the majority also said at p. 565 that the rationale for making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred in bringing or defending the action.  The order was not made to punish the unsuccessful party. 

44. [44]
    That decision was concerned with the basis on which discretion as to whether or not to order costs in favour of a successful defendant should be exercised; there was no consideration in that appeal of the quantum of such costs, a point made by the Court of Appeal of Victoria in Norton v. Morphett (1995) 83 A.Crim.R. 90.  In that case the Magistrate had considered each item of the bill and allowed the amount he thought just and reasonable in respect of each particular item, which involved reducing the overall bill by more than half. This involved excluding all of the costs associated with certain steps taken by way of preparation for trial, particularly FOI applications to obtain copies of the police brief.  It was said that the Magistrate’s discretion as to the amount was at large (p. 99) and the question of what should be allowed and what not allowed was ultimately a matter for the decision of the Magistrate in the exercise of his discretion in all the particular circumstances of the case.  The point was made that Latoudis was speaking about indemnity in the same way as His Honour Judge Wylie was speaking about the indemnity in Keating, in the perhaps somewhat qualified sense that an indemnity is provided when costs are assessed on a party and party basis: see p. 94, 102.  The point to this decision really is that, so long as the right approach is adopted to the issue of the reasonableness in terms of the party and party assessment of the allowance for any particular item of expenditure by way of costs, what amount is actually allowed is within the discretion of the Magistrate which is going to be difficult to challenge successfully on appeal.  It seems to me, with respect, that that decision is entirely consistent with the Queensland authorities. 

45. [45]
    I would not doubt the applicability of Keating and the other decisions to s. 157 as it stood prior to the commencement of the operation of s. 158B.  It seems to me however clear that s. 158B does apply to the discretion to order costs under s. 157, and both the imposition of a statutory scale and the terms of that scale are relevant to the way in which that discretion must be exercised.  The effect of the section and the regulation is to limit the amount of costs that could have been awarded in the present case in respect of preparation and the hearing to $1,500, unless a higher amount was just and reasonable, having regard to the special difficulty, complexity or importance of the case.  It may be that such an approach is inconsistent with the assumption underlying the earlier authorities, that the legislative intention was that a complainant should receive an indemnity in respect of costs, on a party and party basis, by an order made under s. 157.  Plainly, in cases where the costs incurred by the complainant exceed $1,500, but where there is no special difficulty, complexity or importance in the case, an indemnity cannot be provided.  I do not consider that subsection (2) comes into operation merely because it is necessary to award a higher amount in order to give an indemnity on a party and party basis to the complainant.  Clearly, there was nothing in this case involving special difficulty, complexity or importance. 

46. [46]
    When a statutory scale is provided then the starting point is always that the amount of costs is to be in accordance with the scale prescribed, and even where there is a discretion to award a larger amount, the prescribed scale should be used as a guide to the proper exercise of the discretion: Washbourne v. State Energy Commission (WA) (1992) 8 WAR 188, at 193-4; and see Nicholson v. Milveskiy (QSC 20/84, Full Court, 6.12.84, unreported).

47. [47]
    No doubt in the ordinary case the fact that the costs could have been avoided by the defendant’s pleading guilty at an earlier stage will be an important consideration justifying the exercise of the judicial discretion in favour of awarding costs which would cover the party and party costs of the complainant, subject to the limit prescribed, but there are obviously circumstances where some other order would be appropriate. One case would be where unnecessary costs have been incurred by way of preparation, a situation not excluded by the District Court decisions referred to earlier.

48. [48]
    I think another example is a situation where a number of matters are dealt with together between the same parties, and the complainant is not successful in all of them. That was really the situation here; there were two complaints, each alleging two charges. One complaint was dismissed completely; on the other complaint, one charge was dismissed. The Magistrate made no order for professional costs in favour of the complainant, but those costs were really incurred in pursuing four charges and overall, the complainant had been substantially unsuccessful.

49. [49]
    In all of the District Court cases relied on by the appellant, it was said that there was no issue as to whether it was appropriate to order that the defendant pay the complainant’s professional costs, the only issue was as to the quantum of those costs. In this appeal, however, the real issue was whether it is appropriate for the defendant to pay the complainant’s professional costs at all, that is, whether the Magistrate could reasonably come to the conclusion that there should be no order for professional costs. I think it is clear from what is recorded at pages 8 and 9 of the decision that the refusal to award professional costs to the complainant was based on the fact that the complainant was successful in only one out of the four charges. In my opinion, the Magistrate has made his reasons for the costs order that he made sufficiently clear, and there is no error of law in failing to give reasons. In my opinion, in a situation where the complainant has overall been substantially unsuccessful, it is a legitimate exercise of the discretion conferred by s. 157 to refuse to order the defendant to pay any part of the professional costs of the complainant. Although the defendant conducted his own case and would not have incurred professional costs himself, he would have been put to some personal trouble in defending the charges, and I think that that was a relevant factor.

50. [50]
    The Magistrate said he considered as an alternative ordering the defendant to pay one quarter of the complainant’s professional costs. If the argument for the appellant before me were correct that option would not have been open to him, but in my opinion, it is a legitimate option in circumstances where there are a number of charges and some succeed and some fail, to order that the defendant pay a part of the complainant’s costs, either a part calculated by reference to some appropriate fraction, or an amount determined as reflecting what is seen as a reasonable proportion of the total costs incurred by the complainant.

51. [51]
    Strictly speaking, however, considerations of whether an order for partial costs can be justified on such a basis, and indeed, considerations as to the effect on the earlier authorities of the introduction of s. 158B, do not have to be decided in this appeal. The real issue is whether it was a permissible exercise of the Magistrate’s discretion to refuse to include any amount by way of professional costs in the costs ordered to be paid. In my opinion, it was, and I would refuse to interfere with that exercise of the Magistrate’s discretion. I do not consider that any basis for such interference has been made out.

52. [52]
    Accordingly, the appeal is dismissed.