Leyden v Gourley[2005] QDC 234

DISTRICT COURT OF QUEENSLAND

1. [1]
   At all material times the respondent was the holder of a weapon’s licence and an armourer’s licence pursuant to the provisions of the Weapons Act 1990. On 7 September 2004 the appellant, as an authorised police officer, issued a suspension notice suspending the respondent’s licences pursuant to s 28 of the Act. The respondent appealed to the Magistrates Court at Mareeba against the appellant’s decision to suspend his licences pursuant to s 142 of the Act.

2. [2]
   The appeal came on for hearing before His Honour Magistrate J Lock at the Mareeba Magistrates Court on 14 January 2005. His Honour ruled that the notice of suspension was withdrawn by the effect of an order he made in relation to Weapons Act offences with which the respondent was charged. He formally ordered that the appeal be dismissed; finally he ordered that the appellant pay the respondent’s costs of the appeal which he fixed at $350.

3. [3]
   The appellant appeals against that order to this Court pursuant to s 149 of the Act which provides as follows:-

“149. A party aggrieved by the decision of the Court may appeal to the District court but only on a question of law.”

The ground of appeal advanced by the appellant is that the Magistrates Court had no power to make an order for costs in relation to the proceeding. This is plainly a question of law.

4. [4]
   Mr Jarro for the appellant referred me to s 148 of the Weapons Act which sets out the powers of the magistrates Court on an appeal brought pursuant to s 142 of the Act. It provides as follows:-

“(1) In deciding an appeal the Court may –

1. (a)
   Confirm the decision appealed against, or

2. (b)
   Set aside the decision and substitute another decision, or

3. (c)
   Set aside the decision and return the matter to an authorised officer with directions that the court considers appropriate.

3. (2)
   In substituting another decision the Court has the same powers as an authorised officer.

3. (3)
   If the Court substitutes another decision the substituted decision is taken for the purposes of this Act to be an authorised officer’s decision.”

5. [5]
   In substance Mr Jarro submits that s 148 limits the power of the Magistrates Court to making such orders as expressly provided for, which does not include an order in relation to the costs of the proceeding. He referred me to a judgment of McGill DCJ in Phillips v Woolcock (2002) QDC 035 where his Honour said:-

“There does not appear to be any power to make an order in relation to the costs of the appeal to the Magistrates Court.”

With respect to my learned colleague he did not consider the question in any detail nor give any reasons for his tentative view.

6. [6]
   Mr Jarro also relied on a decision of the Full Court in Queensland Fish Board v Bunney ex parte Queensland Fish Board 1979 QdR 301. As the judgment of Connelly J notes at p 302 the proceeding in the Magistrates Court was brought pursuant to the provisions of the Justices Act 1886 as amended. Mr Jarro also referred me to the judgment of the Court of Appeal in Phillips v Morris ex parte Director-General, Department of Families Youth and Community Care (1999) 1 QdR 89. In that case the proceedings were before a Magistrate constituting a Children’s Court, the proceeding was therefore governed by the Children’s Services Act, the Children’s Court Act and the Children’s Court Rules. Therefore in that case the Court concluded that there was no power to award costs under any of those statutory provisions.

7. [7]
   Mr Jarro submits that the power to order costs in a proceeding such as this must be granted expressly by statute. I accept that submission and there is no need to refer to authorities. Mr Wrenn submits that the statutory authority given to the Magistrates court in this proceeding to make an order for costs arises under r 680 of the UCPR. I do not consider that r 680 gives a court any power to award costs, rather that arises out of r 689 of UCPR which provides as follows:-

“(1) Costs of a proceeding including an application in a proceeding are in the discretion of the court but follow the event unless the court considers another order is more appropriate.

3. (2)
   Sub-rule (1) applies unless these rules otherwise provide.”

The issue therefore is whether or not the Uniform Civil Procedure Rules applied to this proceeding in the Magistrates Court.

8. [8]
   The application of the UCPR is expressly provided for in r 3 as follows:-

1. (1)
   Unless these rules otherwise expressly provide these rules apply to civil proceedings in the following courts –

   • Magistrates Courts.
2. (2)
   In a provision of these rules a reference to the court is a reference to the court mentioned in sub-rule (1) that is appropriate in the context of the provision.

9. [9]
   The jurisdiction of the Magistrates Court to deal with civil proceedings is governed by the Magistrates Courts Act 1921 as amended. In State of Queensland v Mowburn Nominees Pty Ltd (2004) QCA 212 the Court of Appeal dealt with an appeal to a Magistrates Court pursuant to s 36 of the Stock Act 1915 as amended against a decision by the Chief Inspector of Stock. The relevant provisions of the Stock Act bear a remarkable similarity to the provisions of the Weapons Act dealing with appeals to the Magistrates Court. The issue under consideration in the Mowburn case was whether or not there was a right of appeal from the Magistrates Court to the District Court pursuant to s 45 of the Magistrates Court Act. That is not the issue here but in determining that there was a right of appeal to the District Court pursuant to s 45 of the Magistrates Courts Act it was an essential implication that the Magistrates Court, when exercising its jurisdiction pursuant to s 36 of the Stock Act, was acting in the course of its civil jurisdiction as provided for in the Magistrates Court Act. The Court of Appeal referred to the following passage from the judgment of the High Court in Electric Light and Power Supply Corporation Ltd v The Electricity Commission of New South Wales (1956) 94 CLR 554 at p 560:-

“When the legislature finds that a special question of a judicial nature arises but there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents, including the liability to appeal, it will say so.”

10. [10]
    In my view whilst sections 142 – 148 inclusive of the Weapons Act regulate appeals to the Magistrates Court to some extent they do not constitute a complete code. The practice and procedure of the Magistrates Court pursuant to the Magistrates Courts Act and the Uniform Civil Procedure Rules apply in relation to matters not covered expressly by the relevant provisions of the Weapons Act. Section 148 specifies the powers of the Magistrates Court in dealing with the substantive appeal. But that section does not expressly or impliedly prevent the Magistrates Court from making other orders that the Court has the statutory power to make in the exercise of its jurisdiction.

11. [11]
    I am fortified in my view that the Magistrates Courts Act and Uniform Civil Procedure Rules apply when a Magistrates Court is exercising its jurisdiction under Part 6 of the Weapons Act, by s 57 of the Magistrates Courts Act which provides as follows:-

“57. The procedure for appeal to a Magistrates Court is, in the absence of relevant rules, as directed by a Magistrate.”

12. [12]
    I am therefore of the view that the learned Magistrate had power to make the order for costs which he made. In my view the appeal should be dismissed. I will order as follows:-

1. That the appeal be dismissed.

2. That the appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.