DISTRICT COURT OF QUEENSLAND

1. [1]
   On 8 January 2001 a Notice of Appeal in the form appropriate to an appeal under s. 222 of the Justices Act 1886 was filed in the District Court at Brisbane.  The notice purports to give notice of an appeal to a judge of the District Court under the provisions of s. 222 against an order made on 8 December 2000 at the Magistrates Court Nanango, that the further hearing of a proceeding be adjourned, and that the appellant pay the costs of another party to that proceeding.  The proceeding was identified by file number 1160/2000.  That was originally a Kingaroy file number attributed to a matter in the Magistrates Court at Kingaroy;  subsequently it was given file number 2131/2000 in the Magistrates Court at Nanango, and subsequently again the file number M. 209650/00. 

2. [2]
   The Magistrates Court proceeding which has been identified in these various ways was an application pursuant to s. 425 of the Police Powers and Responsibilities Act 2000 (“the Act”) commenced by the first respondent Senior Constable Frank by filing in that court a document headed “Form 45” and identified as “application for order regarding ownership dispute” which was sworn by him on 19 September 2000.  I was told that the reference to “Form 45” is because this is the form approved by the Commissioner of Police, pursuant to s. 457 of the Act which provides that the Commissioner may approve forms for use under the Act.  I shall return to the appropriateness of this form;  for present purposes what is significant is that it is clear that the proceeding which was before the Magistrates Court at Nanango on 8 December 2000, in which the order sought to be the subject of appeal was made, was the hearing of an application under s. 425 of the Act. 

3. [3]
   This section provides as follows:

2. “(1)
   This section applies if there is a dispute about the ownership of a relevant thing.
3. (2)
   A police officer may apply to a magistrate for an order                        declaring who is the owner of the thing.
4. (3)
   The police officer must give anyone the police officer   reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place for hearing the application.
5. (4)
   The magistrate may make the order the magistrate considers appropriate.
6. (5)
   If the magistrate cannot decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.”

4. [4]
   The section appears in Division 2 of Part 3 of the Act; Part 3 is concerned with things in the possession of the Police Service, and its object is, as far as practicable, to ensure that such things are retained by the police service only for as long as is reasonably necessary, and that they are handled in an efficient, safe and accountable way: s. 421. Section 424 permits a person who claims to have a legal or equitable interest in a thing in the possession of the police service for at least 30 days to apply to a magistrate for an order that the thing be delivered to the person. There is also a provision for a police officer who has seized a thing for certain specified reasons to apply to a Justice of the Peace (magistrates court) or a magistrate for various orders, identified in s. 427. The Part goes on to make specific provision for dealing with dangerous drugs, weapons, perishable things and things subject to forfeiture.

5. [5]
   There are no other provisions in the Act which say anything as to the mechanism by which such an application is to be made, or which provide any appeal from the decision of a magistrate on such an application. The inclusion of such a power in the Act is a recent development; in the 1997 equivalent Act there was no such power. There has, however, been a long standing provision in s. 39 of the Justices Act 1886 for a magistrates court to make an order for the delivery of property which has come into the possession of a public officer in connection with any charge or prosecution or otherwise in the course of duty of that officer to the person who appears to be its owner, or to make such order in relation to property that the court considers appropriate. 

6. [6]
   The object of such a provision is to provide a summary and expeditious means by which property which has come into the possession of such officials can be dealt with, usually in circumstances where there is some dispute between competing claimants, in a way which provides protection to the official against inadvertent conversion of the property: Bullock v. Dunlop (1876) 2 Ex.D 43 at 46 per Cleasby B.  Significantly, s. 39 provides in subsection (2) that the order does not prevent a person from recovering the property by action from the person to whom the property is delivered under the order, although there is a requirement that any such action be commenced within six months after the making of the order: subsection (3).  There is no equivalent provision in s. 425, which suggests that a declaration by a magistrate as to who was the owner of the property made under that section would be binding, at least on persons who had had notice of the application and therefore the opportunity to be heard.  Section 425 was inserted into the Act by Police Powers and Responsibilities and Other Acts Amendment Act 2000.  This Act also amended s. 39 to provide in effect that an application could not be made under s. 39 by a police officer, except in a very limited category of cases which is not presently material. 

7. [7]
   One issue which arises in connection with s. 425 is whether the magistrate when dealing with an application is performing a judicial function, as a member of the magistrates court, or is performing an administrative function as persona designata.  Although the section refers to the application being made to a magistrate rather than to a “magistrates court”, subsection (3) contemplates a hearing of which interested persons are given notice, and subsection (2) speaks of an order declaring who is the owner, that is, the making of a determination inter parties of who is, not who appears to be the owner as contemplated by s. 39 of the Justices Act, with no saving proviso for a claim to be pursued on a later action.  Ordinarily one would regard the determination of ownership of something as a judicial function, although if it is only ministerial the order would not be conclusive, so there would be no need for a provision permitting a later action to be brought. 

8. [8]
   Section 39 speaks of a “magistrates court” and the cases on that section generally suggest an assumption that the power being exercised is judicial. The equivalent section in England was held to activate a general power in the court to make an order for costs, if the application was commenced by complaint: R v. Uxbridge Justices; ex parte Commissioner of Police of the Metropolis [1981] QB 829.  That would not be the result if the magistrate was performing a ministerial function:  Re Ascot Racecourse & Recreation Grounds Ltd (1951) 51 SR (NSW) 340.  In Parker v. Gordon (O.S. 34/94, Cullinane J, 16.12.94, unreported), the power under s.39 was said to be ministerial (apparently without argument to the contrary) so as to enable review under the Judicial Review Act 1991, but this was on the authority of Young v. Young (1910) 17 QJP 4.  So much was argued on one side in that case, but so far as I can see Chubb J did not adopt or approve it, and in any case since 1910 that Act has been amended to provide for an application to a magistrates court.  With respect, I do not agree with the characterisation in Parker of the power in s.39. 

9. [9]
   Perhaps the use of the term “magistrate” is a reflection of a drafting practice which recognised the distinction formerly drawn between a court and a judge or magistrate sitting in chambers. At one time if a statute provided that an application for some relief could be made to the Supreme Court, the application was made by motion to the court, that is to a judge sitting “in court”, and the proceeding commenced by filing a notice of motion. On the other hand, if the statute provided that the application could be made to “a judge of the Supreme Court” this meant the application was made to a judge in chambers by originating summons: SCR 0.2 r.1; O.64 r.1(k). In the same way, an application to a magistrate would be heard by a magistrate in chambers: Magistrates Courts Rules 1960 rr 288, 289.

10. [10]
    That distinction, however, was abolished in respect of all courts by s.128 of the Supreme Court Act 1991, a provision which was inserted by s. 24 of the Civil Justice Reform Act 1998 and which applies to the magistrates court.  See also s. 130(2), which would have applied to s. 425 had it then been in force, and had s. 425 referred to the application being made to “a magistrate in chambers”. 

11. [11]
    On the whole, I do not think the drafting of s. 425 was intended to suggest that the application was to be made to a magistrate in some capacity other than as a member of a magistrates court, or that the application was to be dealt with other than in court; particularly significant is the reference to the “magistrate hearing the application”. By way of contrast an application under s. 426 can be made to a justice of the peace (magistrates court) instead of a magistrate, there is no provision for a hearing or notice to anyone, and the orders which may be made (“after considering the application”) do not involve any determination of title. I do not think it was the intention to confer on a magistrate an administrative or ministerial function when dealing with an application under s. 424; the magistrate hearing the application would be performing a judicial function as part of the magistrates court^[1]. 

12. [12]
    If this is so and the application is to a magistrate performing a judicial function as a member of a magistrates court, it follows that r. 10 of the Uniform Civil Procedure Rules applies to such an application. That rule says:

“A proceeding must be started by application if an Act or these rules require or permit a

person to apply to a court for an order or another kind of relief and –

1. (a)
   the Act or rules do not state the type of originating process to be used;  or

2. (b)
   a type of originating process (other than a claim or application) is required or permitted under a law.”

The Act does not state the type of originating process to be used, and the Act permits a person to apply to a court for an order or another kind of relief.  In my opinion, it follows that the proceeding by which the application is made “must be started by application”.  That means that the appropriate form is Form 5, an originating application. 

13. [13]
    The Act does not specify the form to be used for the application, so there is no form for such an application which is made by the Act the form for use under the Act. Where an Act gives jurisdiction to a court to grant particular relief on application, the form of application is, subject to the express terms of the Act, a matter for the court, and the form to be used is the form determined by the court, not the form determined (in effect) by the applicant. In my opinion, if the Uniform Civil Procedure Rules apply, the application is to be in the approved form (r. 26(1)), that is to say, the form approved by the rules committee pursuant to s. 118A of the Supreme Court Act 1991.  I suspect that if the form for an originating application had been used by the applicant in the magistrates court a good deal of the confusion which appears to have attended the hearing of the matter in that court would have been avoided. 

14. [14]
    It may also have avoided the consequence that the appellant was led to attempt to appeal under s. 222 of the Justices Act against the order which was made, on 8 December 2000, that the hearing be adjourned and that he pay an amount as the costs of the adjournment to the third respondent.  That section provides in subsection (1):

“When any person feels aggrieved as complainant, defendant or otherwise by any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty such person may appeal as hereinafter provided to a District Court judge…”.

In my opinion, it is quite clear that that does not apply to the appeal which the appellant seeks to bring in the present case.  He is not aggrieved by an order made “upon a complaint for an offence or breach of duty”;  he is aggrieved by an order made on an application for a declaration: Young v. Young (supra). There was no offence or breach of duty alleged, there was no complaint under the Justices Act, and there was no final order “upon” the complaint:  Schneider v. Curtis [1967] Qd.R. 300 at 304. On its face therefore s. 222 has no application. 

15. [15]
    It would be possible of course for some other provision to permit an appeal in respect to some other matter to be made “under s. 222 of the Justices Act 1886”, but there would, in my opinion, have to be some express provision to that effect in the Act for that result to be achieved.  There is no such provision in the Act, so far as I can see, and no one on the hearing was able to refer me to any such provision in the Act, or indeed in any other Act, which had that effect.  Indeed, there is no provision in the Act for appeal against any order made by a magistrate in any proceeding under the Act, so it is not clear that there is any right of appeal against such an order.  When an application was made under s. 39 of the Justices Act, an appeal against an order on the application could formerly be brought by way of order to review under s. 209 of that Act:  Norman v. McPhee [1951] QWN 48, and see for example Byrne v. McNamara [1961] Qd.R. 204. However, appeals under s. 209 of the Justices Act were abolished by the Courts Reform Amendment Act 1997. 

16. [16]
    In any case, whether or not an appeal can be brought to the District Court or any other court from an order made on an application under s. 425 by any other process, in my opinion it is clear that an appeal under s. 222 of the Justices Act is not available for that purpose.  It follows that the appeal is incompetent and should therefore be struck out.  There is, in my opinion, no valid appeal before this court.  In view of this, it is unnecessary to consider whether other deficiencies in the notice of appeal would in any case lead to the conclusion that the District Court had no jurisdiction, because of the failure to fulfil the requirements of subsection (2).  My conclusion is that there is no valid appeal before the court pursuant to s. 222 of the Justices Act, or indeed on any other basis. 

17. [17]
    With the notice of appeal was filed an application in From 9 seeking interlocutory orders, and also orders said to be “on appeal” in the form of a declaration that the appellant is the owner of a particular bulldozer, the subject of the application under s. 425, and an order that the costs order the subject of the appeal be quashed, and an order for the costs of the appeal. Reference was made to s. 113 of the District Court Act and s. 225 of the Justices Act.  The former provision confers certain powers on a District Court when hearing an appeal from a magistrates court, but does not confer jurisdiction to deal with any particular matter by way of appeal from a magistrates court;  that is a matter which must be provided for by some other Act, so that there is an appeal properly before a District Court, before it can exercise the power conferred by s. 113.  The latter provision deals with the powers of a judge hearing an appeal under s. 222, and in my opinion does not apply because there is no valid appeal under s. 222 before the court.  In my opinion, this application insofar as it seeks interlocutory relief is dependent on the existence of a valid proceeding before the court, and in my view there is none;  insofar as it seeks final relief, it does not purport to invoke any jurisdiction conferred on the District Court, so it is also ineffective for the purposes of enlivening the court’s jurisdiction. 

18. [18]
    The application was made returnable on 30 January 2001, and came on before me on that date. On that occasion Mr. Bell, who held a power of attorney from the appellant, sought leave to appear for the appellant on the basis that the appellant was elderly and unable because of his physical condition to conduct the proceedings himself, and because he held the appellant’s power of attorney. A person not a lawyer may appear by special leave, although he is not entitled to recover remuneration for doing so: District Court Act s. 52.  That seemed to me to be a convenient course to follow, a conclusion which was not falsified by anything which subsequently happened in the course of proceedings before me.  When the matter was called on, Mr. Bell withdrew the appellant’s application, so it is strictly unnecessary for me to deal with the substance of that application, although had the issue arisen I would have concluded that there was no jurisdiction in the court to give any relief sought in that application. 

19. [19]
    However, the third respondent to the appeal, a person who had been given notice of the proceeding before the magistrate and had appeared there, sought leave to file and read an application seeking orders that the appeal and the appellant’s application be dismissed. This was, in my opinion, unnecessary; indeed, there being no valid proceeding before the court in which such an application could be made, in my opinion strictly speaking there was no jurisdiction to entertain that application, except insofar as the application sought a determination that the court had no jurisdiction to entertain the appeal. It is, in view of my conclusion on that matter, unnecessary to deal with that application further.

20. [20]
    That application also purported to be by another party, “Seng Machinery Sales”, said to be a registered business name and said to have an interest on the basis that it claimed some interest in the chattel the subject of the application to the magistrate. It is not clear that it was a party to the proceeding before the magistrate, and it was never made clear to me that it would have had any right to make an application in the proceeding started by the notice of appeal had there been any proceeding within the jurisdiction of the court validly started by that notice of appeal, but since in my view there was not, it is really unnecessary to determine that question.

Costs

21. [21]
    The first respondent, who was the applicant before the magistrate, and the third respondent who was the party interested before the magistrate, each applied for costs associated with their appearance on 30 January, and their response to the appellant’s proceedings, against the appellant. Mr. Bell, on behalf of the appellant, submitted that there should be no order as to costs. This raises first the issue of whether, in circumstances where a matter is before the court which the court has no jurisdiction to entertain and which is struck out on that ground as incompetent, this court has power to deal with the costs of the process by which that is determined, or indeed any other costs incurred in connection with the purported appeal by parties other than the party initiating it. There is then the separate question of how any such jurisdiction should be exercised in the present case. I will deal first with the question of whether there is such a jurisdiction.

Jurisdiction To Order Costs

22. [22]
    There is in the District Court Act 1967 no express power to deal with the costs of a matter which comes before the court where the court decides that it has no jurisdiction; there is no equivalent to the provision to that effect in s. 149 of the District Court Act 1973 of New South Wales, s. 55 of the County Court Act 1958 of Victoria, s. 65 of the District Court of Western Australia Act 1969^[2] or s. 43(1) of the Federal Court of Australia Act 1976.  Indeed, there is no general provision in the District Court Act for the court to award costs. In a matter where jurisdiction is conferred under s. 68 of the District Court Act, the court would have power to order costs pursuant to s. 69 of the Act, but the proceedings before me did not involve any matter where jurisdiction was conferred by s. 68. 

23. [23]
    The District Court, not being a superior court, has only such jurisdiction as is conferred on it, expressly or by implication, by statute. The power to award costs in proceedings is not a matter of necessary implication; common law courts had no power to award costs until such powers were conferred by statute: Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 at 488; R v. South Brisbane Justices; ex parte Zagami (1901) 11 QLJ 81 at 83. It follows that the power to award costs is not something which is to be implied by the mere creation of a court.

24. [24]
    On the other hand, a capacity to determine whether or not it has jurisdiction may be seen as something which is inherent in the nature of a court, so that a court is regarded as necessarily having a power to decide whether or not it has jurisdiction to deal with a matter: Pezet v. Pezet (1946) 47 SR(NSW) 45 at 51, where Sir Frederick Jordan also said that it followed that a court had jurisdiction to deal with the costs of the proceeding.  His Honour however was speaking about a proceeding before the Supreme Court of New South Wales.  The former proposition must, in my opinion, apply even to a court of limited or statutory jurisdiction such as the District Court, a conclusion which has the support of Katz J in Khatry v. Price [1999] FCA 1289, where His Honour said at para. 15:

“Every Australian court must have at least a limited jurisdiction in every proceeding in which its jurisdiction is purportedly involved, namely a jurisdiction to determine whether it has the jurisdiction which has been purportedly involved.”

In that case, however, His Honour held that in a matter where the Federal Court had purported to exercise jurisdiction which the High Court subsequently determined it did not have, there was no jurisdiction to deal with the costs of the proceedings. 

25. [25]
    Under the former District Court Rules 1968, r. 367 provided that:

“When an action or appeal is brought in a District Court which the court has not jurisdiction to try or hear, the judge shall … have power to award costs, to the same extent, and recoverable in the same manner, as if the court had had jurisdiction in the matter of the action or appeal, and the plaintiff had been non-suited or the appeal had been dismissed.”

There were perhaps difficulties with other parts of this rule, because of a possible inconsistency between it and s. 85 of the Act^[3] and because it purported to confer jurisdiction to hear an appeal by the consent of the parties to the appeal, but in any case whether the rule was otherwise valid is now academic because it has been repealed:  Supreme Court Act 1991 s.118B.  There is no provision in the Uniform Civil Procedure Rules dealing with the costs of a proceeding which is not within the jurisdiction of the court.  The general power to award costs in r. 689 does not expressly extend to costs in a matter where the jurisdiction of a court is not validly invoked; it speaks of “costs of a proceeding”. 

26. [26]
    There is a good deal of authority, both in Australia and England, dealing with the question of jurisdiction to make an order for costs in circumstances where a matter is brought before a court where the court does not have jurisdiction to deal with it. Most of these authorities can be reconciled in the manner set out in a helpful article by A.J. Snelling in (1935) 8 ALJ 404, which stated that they support these propositions:

1. “(1)
   In the absence of statutory provision, where an inferior court  created by statute decides that it has no jurisdiction in the matter then such court has no jurisdiction to make any order in respect of costs. 

2. (2)
   The position is the reverse in the case of a superior court in England and in Australia, such courts having inherent jurisdiction to deal with costs even where there is no jurisdiction over the matter.”

The authorities cited date from a decision of the Court of Exchequer in Lawford v. Partridge (1857) 1 H&N 621, 26 LJ Ex 147, 156 ER 1350.  An action had been brought in a county court and, once it emerged that a question of title to land was involved, which under the relevant statute meant that the court did not have jurisdiction, the county court judge non-suited the plaintiff and ordered him to pay costs.  It was held that he had no jurisdiction to make the order as to costs. 

27. [27]
    That decision was subsequently cited with approval in England in Watson v. Petts (No.2) [1899] 1 QB 430 by Channell J, and was followed in New South Wales, in relation to the New South Wales District Court, by the Full Court in Ex Parte Asher (1865) 4 SCR (NSW) 71 at 81 and in Ex Parte Lawry (1868) 7 SCR(NSW) 183, which in turn was followed in Ex Parte Charlton (1869) 8 SCR(NSW) 158.  There was a decision to the same effect by the Victorian Full Court in Dowd v. Shire of Violet Town (1899) 25 VLR 281 and other Victorian decisions to the same effect are Cash v. Cash (1896) 22 VLR 110, Loft v. Wade (No.2) (1898) 24 VLR 216, Re: Henry (1888) 9 ALT 125 and Hickey v. Gillingham [1913] VLR 184.  The only decision to the contrary identified in the article, or in the Australian Digest, is the decision of the New South Wales Court of Arbitration in Re: Kirby [1906] Arbt R. (NSW) 306, which Snelling submits is erroneous and contrary to the other authorities. 

28. [28]
    By way of contrast, there are decisions in which it has been recognised that a superior court has an inherent jurisdiction to deal with costs in circumstances where a matter is brought before it which is otherwise not within its jurisdiction. Some of the earlier English cases were considered by the Full Court of South Australia in Commissioner of Taxes v. Rooney [1936] SASR 289 at 296, where it was held that the Supreme Court had jurisdiction to make an order for costs in relation to an attempt to appeal to the court from a decision of a local court on an appeal under a taxation statute where the Supreme Court had no jurisdiction to hear the appeal.  Later English cases to the same effect are Re: J H Robertsons Application [1930] 1 Ch. 186 at 193 and Dennis v. Malcolm [1934] Ch. 241 at 253. 

29. [29]
    Queensland decisions to the same effect in relation to the Supreme Court’s jurisdiction to order costs in such circumstances are Pritchard v. Howard Smith & Sons Ltd (1891) 4 QLJ 64 and White v. White (No. 2) [1923] St.R Qd. 69.  Nothing was said about the position of an inferior court in the later case;  in the earlier, Lilley CJ said at p. 69:

“I have known costs awarded in inferior courts when the plea of jurisdiction has been tried”

and expressed some sympathy with the position of a person who has been put to expense as a result of another having set the law in motion improperly, but did not actually decide that there was jurisdiction in an inferior court to make such an order in those circumstances.  Of course, there was a statutory power to make such an order in the District Court in 1891.

30. [30]
    In Pezet v. Pezet (1946) 47 SR (NSW) 45 at 51, Sir Frederick Jordan said:

“Apart from this, it has been held that even if a court has no jurisdiction to determine a matter which is sought to be litigated before it, it has at least jurisdiction to determine, finally or provisionally as the case may be, whether it has jurisdiction or not, and therefore jurisdiction to deal with the costs of the proceeding.”

He then cited authorities;  the first was Carr v. Stringer (1858) EB &E 123, an English case concerning the jurisdiction of the English High Court.  The second was Morse v. The Australasian Steam Navigation Company (1870) 9 SCR 81, which concerned the jurisdiction of the Supreme Court of New South Wales; in that case Ex Parte Charlton (supra) was cited, but evidently distinguished by the court.  The remaining authorities cited are the two more recent English cases referred to earlier.  All of the cases cited are therefore cases where the decision was made in relation to a superior court, and indeed Pezet was a decision concerning the Supreme Court of New South Wales in its divorce jurisdiction. 

31. [31]
    In those circumstances I do not think Sir Frederick Jordan should be taken as laying down a proposition which was intended to apply to inferior courts as well as superior courts, although the breadth of the language used by His Honour might otherwise suggest that his remarks were more general. There is a note on the decision dealing with the jurisdiction to order costs in (1947) 41 QJP 43, which suggests that it was assumed that it applied to the Magistrates Court of Queensland. Pezet was cited and followed by the New South Wales Court of Appeal in Proust v. Blake (1989) 17 NSWLR 267 at 272, but again in the context of the jurisdiction of the Supreme Court. In Khatri (supra), Katz J distinguished Pezet (and Rooney and Proust) without considering whether their application was confined to the power of a superior court, or whether, if so, they applied to the Federal Court.

32. [32]
    No doubt the practical reason why there are not more recent authorities dealing with this question in relation to inferior courts is that legislatures responded by conferring express power on inferior courts to deal with the costs of proceedings before them where there was otherwise no jurisdiction. In England such powers were conferred by s. 114 of the County Courts Act 1888, and this provision was copied in Australia, for example, in s. 124 of the District Courts Act 1891 in Queensland.  I have already referred to the current provisions in other states.

33. [33]
    When District Courts were reintroduced in Queensland the District Court Act 1958 contained a provision to similar effect in s. 127, but when the bill was introduced to replace the 1958 Act the then Minister for Justice in the second reading speech^[4] stated that provisions relating to practice and procedure, which had previously been included in the Act, were to be dealt with by rules of court.  Evidently the fact that s. 127 dealt with jurisdiction rather than practice and procedure was overlooked, as the provision was dropped from the 1967 Act but appeared in the District Court Rules 1968, in r. 367.  So long as there was some provision to this effect, it would overcome the difficulty in most cases, although there was still room for argument about the scope of the provision as shown by Watson v. Petts (No. 2) [1899] 1 QB 430, and R v. Beecham & Co; ex parte R.W. Cameron & Co [1910] VLR 204. 

34. [34]
    When the Queensland District Court was abolished, a similar power was inserted in the Magistrates Court Act 1921 to award costs when a matter was brought before a magistrates court which it did not have jurisdiction to try: s. 4(9).  That subsection was by Act 39 of 1993 renumbered as s.4H, and subsequently again renumbered as s. 12 before being omitted in the amendments to the Magistrates Courts Act 1921 effected by the Civil Justice Reform Act 1998.  So far as I can see, that Act did not provide any substitute power, either specifically for the magistrates court or more generally for Queensland courts. 

35. [35]
    The explanatory memorandum for the Civil Justice Reform Act says that s. 12 was omitted to avoid any inconsistency with s.81 of the District Court Act, but so far as I can see there was no inconsistency between those provisions.  Section 81 is the provision for removal to the District Court of a matter commenced in the Magistrates Court where the District Court does but the Magistrates Court does not have jurisdiction;  it is analogous to s. 85 which provides for the removal from the District Court to the Supreme Court of a matter commenced in the District Court where that court does not have jurisdiction.  Neither section makes any reference to the question of costs, and as a consequence there is no power in the transferring court to make an order for costs: Hares v. Lea (1870) LR 10 Eq 683.  So far as I can see, far from being inconsistent with s. 83, the former s. 12 complemented it by providing a power which was otherwise unavailable. 

36. [36]
    So far as I am aware, however, in Queensland at the present time there is no provision either in the District Court Act or in the Uniform Civil Procedure Rules which confers on the District Court a general power to award costs in matters where the court does not otherwise have jurisdiction, or indeed confers on the District Court power to award costs in terms wide enough to cover such a situation.  Inferior courts have no power to make orders as to costs except when such a power has been conferred by statute:  R v. Justices of South Brisbane; ex parte Zagami (1901) 11 QLJ 81 at 83; Crowe v. Bennett; ex parte Crowe [1993] 1 Qd.R. 57 at 62;  Phillips v. Morris [1999] 1 Qd.R. 89.  A power to award costs must be conferred expressly or by necessary implication, and in the latter situation the existence of the power must clearly appear:  Queensland Fish Board v. Bunney [1979] Qd.R. 301 at 303, where it was held that a power in a magistrates court exercising jurisdiction under s. 61 of the Fish Supply Management Act 1972-1976 to “make any other order it considers just” did not extent to a power to make an order in respect of the costs of an application under that section^[5].  Accordingly, in my opinion, in the case of an inferior court the existence of jurisdiction to decide whether or not there is jurisdiction to deal with a particular matter does not imply the existence of a power to deal with the costs involved in relation to either that determination or the matter as a whole. 

37. [37]
    It follows that in my opinion I have no jurisdiction to make any order for costs in relation to the proceeding before me on 30 January 2001. However, in case it should be thought elsewhere that I do have jurisdiction to make such an order, I should indicate the costs order which I would make if I had jurisdiction.

Precautionary Determination On Costs

38. [38]
    The notice of appeal is unclear as to who is the respondent to the appeal, but the application filed with it identifies among the respondents as the applicant before the magistrate, Senior Constable Frank, and Mr. Seng, as an “interested party”; that is a person to whom notice has been given of the proceeding before the magistrate, and in whose favour the order for costs of the adjournment was made. On 30 January counsel appeared on behalf of the first respondent, and submitted that there was no jurisdiction to entertain the appeal, and sought costs in the sum of $1,650. The third respondent also appeared by counsel, who also appeared for Seng’s Machinery Sales, as mentioned earlier, and sought costs of behalf of his client in the sum of $4,050, which included the costs of the appeal, the appellant’s application and the application filed on behalf of his clients. As I have indicated earlier, in my opinion that application was entirely unnecessary, and I would not order any costs in relation to that.

39. [39]
    I feel some sympathy for the appellant, because the question of how to appeal against an order made in such circumstances is a difficult one, as is the question of whether there was jurisdiction in the magistrate to make the order. I think that there was some justification in taking steps to raise the issue of jurisdiction, and the first respondent did not do much more than that, and in his case there was the further consideration that it is difficult to see that it was proper for him to be joined as a respondent to the appeal anyway, because apparently no costs order in his favour was made so it is not clear that he had any interest.

40. [40]
    The matter is further complicated by the fact that on 25 January 2001 the Queensland Police Service wrote to the appellant pointing out the jurisdictional problems, and inviting him to abandon his appeal and related application forthwith, advising that if he did so no costs would be sought against him. That was a very fair offer in the circumstances, and subsequently the application was withdrawn, but only just before the hearing, and the appeal had not been withdrawn at the time of the hearing before me. The appellant however did not have much time to respond to that letter before the hearing, so the withdrawal of the application was probably timely, but the appeal was not withdrawn.

41. [41]
    On balance if there were jurisdiction to order costs I would order the appellant to pay some costs to each respondent, but fix an amount not intended to give a full indemnity, to mitigate the burden on the appellant in view of such co-operation as he did show, and in the case of the third respondent to recognise the fact that the response to the appeal was, to some extent, excessive. In all the circumstances I would fix costs in favour of each respondent in the sum of $1,000.

42. [42]
    In the event, however, I will make no order other than to order that the appeal and applications be struck out as incompetent.

Drafting of Section 425

43. [43]
    In conclusion, may I offer a comment about the drafting of s. 425. In my opinion it is unsatisfactory in a number of respects because it leaves unclear a number of matters, particularly the question of whether the power exercised by a magistrate under the section is judicial or ministerial. It is really a matter of policy whether the legislature intends it to be one or the other, but as will be apparent from my earlier analysis in the present case there are some indications either way, and although I have a view as to the true interpretation of the section, it would be better if the section were unambiguous. If the section is intended to confer a mere ministerial power, then in my opinion it should:

1. (a)
   provide for the magistrate to give a direction  as to what the police officer is to do with the thing, rather than make a declaration as to the owner of the thing; 

2. (b)
   contain an equivalent of s. 39(2) of the Justices Act 1886

3. (c)
   combine subsections (4) and (5); 

4. (d)
   provide expressly that neither the police officer nor the State of Queensland is to be liable to any person as a result of anything done with the thing in accordance with a direction of a magistrate under the section;  and

5. (e)
   provide in subsection (3) for notice to anyone whom the police officer reasonably believes has or claims a legal or equitable interest in the thing.

If the intention is that there be a judicial determination by the magistrate of title to the property, the section should provide that:

1. (a)
   the application be made to a magistrates court, not a magistrate – if this is done it will not be necessary to deal with questions of procedure, as the Uniform Civil Procedure Rules will be picked up automatically;

2. (b)
   there be a mechanism for appeal, preferably not by applying s. 222 of the Justices Act, which is a cumbersome and unsatisfactory form of appeal anyway.  An application under the section could involve a thing of considerable value;  in Byrne v. McNamara [1961] St.R. Qd. 204 there was an application under s.39 of the Justices Act in respect of an ingot of gold.

3. (c)
   there be a provision like s. 39(2) of the Justices Act 1986;  and

4. (d)
   notice be given to any person the police officer reasonably believes has or claims a legal or equitable interest in the thing.

I have not considered the other provisions in Part 3 but it may be worthwhile looking further at some of the other sections to see whether they raise similar problems.