DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter, for reasons I published on 10 December 2004, I allowed an appeal against the decision of a magistrate convicting the appellant of an offence under the Integrated Planning Act 1997, quashed the conviction, and entered a verdict of acquittal.  I made an order dealing with the costs of the appeal, but reserved the question of the costs of the hearing before the magistrate until written submissions from both parties had been received.  They have now been received, and I will deal with that question of costs.

2. [2]
   Before the magistrate the prosecution was successful, and an order for costs was made against the appellant. However, it does not necessarily follow that, the prosecution having on appeal been unsuccessful, an order for costs should be made in favour of the respondent, and in any event there is no reason why the quantum of costs awarded should be the same. Although there is power when dismissing a complaint to make an order that the complainant pay the defendant’s costs in s 158(1) of the Justices Act, s 158A provides that an order for costs in favour of a defendant against a complainant who is a public officer may be made “only if the justices are satisfied that it is proper that the order for costs should be made.”  The term “public officer” includes an officer or employee of a local government (s 4), and therefore this section applies to restrict any order for costs against the respondent.  Subsection (2) goes on to provide a number of matters which justices must take into account in deciding whether it is proper to make the order.

3. [3]
   The extent to which this produces an approach to the exercise of the discretion as to costs which differs from the approach appropriate in the case of an unrestricted discretion is a matter which has generated some divergence of opinion. In MacPherson v Commissioner of Taxation [1998] QCA 396, McPherson JA at [14] said that:  “It might be said that the function to be performed in exercising discretion under s 158A does not greatly differ from what it would be in exercising [an] unparticularised general discretion …”  On the other hand, in Saffery v Ellery [2001] QDC 91, Forde DCJ said that an exposition of the common law approach was of limited assistance in applying the factors which are set out in s 158A:  [7].  Nevertheless, their Honours were entirely consistent in deciding, respectively, that a provision of a Commonwealth Act giving a general discretion as to costs was inconsistent with s 158A, and that where s 158A applied, the exercise of the discretion as to costs in accordance with the exposition in Latoudis v Casey (1990) 170 CLR 534, was an error of law. 

4. [4]
   The statute requires that the various matters specified in subsection (2), along with all other relevant circumstances, be taken into account.  In addition, the formulation in subsection (1), that the order may be made “only if the justices are satisfied that it is proper …” suggests that prima facie no order for costs should be made, whereas under a general discretion in relation to costs the starting point is that costs ought to follow the event:  Latoudis v Casey (supra).

5. [5]
   Turning to the particular matters identified in subsection (2), there is no reason to think that the proceedings were brought or continued other than in good faith.  I also could not be satisfied that there is any failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of the respondent or anyone else associated with the prosecution, nor would I criticise the way in which the investigation was conducted.  Paragraph (d) seems to suggest that if a complaint was dismissed on technical grounds the court should be more reluctant to make an order for costs than if the dismissal was on the ground that there was insufficient evidence.  The present case on my analysis falls into the latter category, which therefore is a factor tending to support an order for costs.

6. [6]
   On the face of it the appellant’s remark, found by the magistrate to have been light- hearted, that he was building a golf course could be said to have been conduct bringing suspicion on himself “after the events constituting the commission of the offence,” as the statute inaptly puts it, since the wording assumes that an offence has been committed notwithstanding that one is considering this issue only in circumstances where the complaint has been dismissed. The difficulty with this approach however is that the circumstances which indicate, and were evidently taken by the magistrate as indicating, that the remark was light-hearted and therefore not one on which any particular reliance should be placed, were circumstances which should have been readily apparent to the council officer concerned, and therefore to those responsible for mounting the prosecution.

7. [7]
   The officer to whom the statement was made admitted in the course of his evidence in the Magistrates Court that sometimes he did not know whether the appellant was serious or was joking when he said something.^[1]  In those circumstances it seems a little surprising that so much reliance was placed by the prosecution on a finding that, when the statement was made that the appellant was building a golf course, it was true.  It does not appear that the appellant unreasonably declined an opportunity before the charge was laid to explain his version of events or to produce relevant evidence.  There is no indication of any failure to comply with a direction under the Act, and that was not relied on by the respondent.

8. [8]
   As to whether the appellant conducted the defence in a way that prolonged the proceedings unreasonably, the proceedings do seem to have gone on for some time, and my impression from reading the transcript is that the trial could have been conducted more efficiently, although it is difficult to tell to what extent this trial was unusual in that respect among trials in the Magistrates Court. The respondent made two particular points in relation to this matter, that the evidence of two individuals who were farming a different and irrelevant part of the land was of no consequence, and that the evidence of experts concerning rehabilitation of the subject land was of no consequence. As to the former, it is difficult to see that this evidence was of any significance, although no objection to its admissibility on the grounds of irrelevance appears to have been made at the trial. It did not occupy much time.

9. [9]
   As to the latter however, it was an important part of the prosecution case as it was mounted that the appellant could not have been using the land for agricultural purposes because of acidification of the soil. Evidence from rehabilitation experts as to the ability to deal with excessive acidity so as to render the land suitable for agricultural production, and, perhaps more importantly, evidence of their having given advice to the appellant in relation to that process, was in my opinion an appropriate and indeed important response to this part of the respondent’s case.^[2]  Indeed, in my opinion it effectively neutralised it.  Given the way in which the respondent mounted the prosecution, and its reliance on the acid soil argument, in my opinion the expert evidence about rehabilitation of the acid soil was entirely appropriate.  Overall, I think that the trial went longer than it ought to have, because of the way in which the defence was conducted, but that I think is a matter which should go to the quantum of professional costs rather than a matter which makes it not proper to make an order for costs at all in favour of the appellant.

10. [10]
    Finally, this is not a matter where the appellant was acquitted on one charge but convicted on another, at least so far as these proceedings are concerned.

11. [11]
    The only evidence that the appellant was specifically constructing a golf course, on the basis of which the prosecution was launched, was a highly superficial resemblance between the appearance of some of the works and the fairway of a golf course, which was effectively countered by the evidence of an expert in golf course design, the supposed similarity between the works and the plan which had been produced earlier in connection with an enquiry as to the council’s attitude to an extension of the golf course into the area concerned, which did not survive close examination by me, and the remark which the magistrate found, reasonably enough in the circumstances, to have been light-hearted. Although the council had good grounds for suspecting that the appellant was doing something that he was not authorised to do, it had in my view only tenuous grounds for the assertion that that something was building a golf course.

12. [12]
    Overall this is a case where an objective consideration of the evidence that what the appellant was doing was starting to construct a golf course reveals that it was really inadequate to prove the respondent’s case. That ought to have been apparent before the prosecution was launched, and in those circumstances overall my assessment is that this is a prosecution which ought never to have been brought. In that situation, taking into account the matters referred to in subsection (2), in my opinion it is proper to order that the respondent pay such costs as are just and reasonable.

Quantum of costs

13. [13]
    Under s 158B, those costs are prima facie the costs allowed in the schedule to the regulation.  The schedule allowed up to $1,500 for work up to and including the first day of the hearing, and up to $875 for each day of hearing after the first day.  There is however a provision in subsection (2) for the justices to allow a higher amount if they are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.  There was I think in the present case some special difficulty and complexity.  In my opinion in view of the difficulty and complexity of the present matter it is appropriate to allow $2,500 for the work up to and including the first day of hearing, and $1,500 for each of the following days, except that I will reduce the number of permissible days by one, that is, allow only three refreshers.  This, as it happens, produces a total of $7,000, which is the amount allowed for the prosecution costs, but that is simply a coincidence.

14. [14]
    The appellant also claims fees for expert witnesses, $950 for Mr Burrup, the expert on golf course design, $4,490.88 for PPK Environment and Infrastructure, in connection with the evidence of Mr Bruckner, the expert on remediation of acid soil, $2,398 for Cardno MDK, in connection with the evidence of another engineer, and $1,881 for Golder Associates Pty Ltd.

15. [15]
    There is no dispute about the fees to Mr Burrup, and plainly they should be allowed. It was submitted however that the amounts claimed in respect of the other witnesses are not shown to be relevant to the proceedings, either because their evidence was not relevant, or because it does not appear from the material that the invoices relate just to work associated with the giving of evidence in connection with this trial. The respondent noted that the appellant was also responding to investigations by the Environmental Protection Agency.

16. [16]
    I think there is some force in this criticism. In relation to fees for PPK, these are said to be “environmental site assessment – Mango Hill Golf Course; onsite inspections, laboratory analysis, report writing and court appearance.” Certainly it would be appropriate to allow the fees charged by Mr Bruckner for his inspection of the property, and for his court appearance, and if there was any laboratory work necessarily associated with that, that should also be allowed. The preparation of a detailed report however is not something which is ordinarily required for a court appearance in criminal proceedings, and it is not at all clear to me that all of this was work which was required specifically for his evidence in this prosecution. The fees charged also appear very high for that purpose. On the other hand, there is no doubt that there would be some fees properly allowable in respect of Mr Bruckner’s evidence. I acknowledge that this is somewhat arbitrary but I will allow $2,250, which is about half the total bill.

17. [17]
    The account from Cardno MBK refers to site visit, report preparation and attendance at court in a period which corresponds with the third day of hearing of the trial. There is no reason to doubt that this money was paid, and with some hesitation I will allow the amount claimed of $2,398. In relation to the account from Golder Associates, this on its face refers to preparation of a site management plan and management of concrete stockpiles. There is also a document dated 23 April 2001, which refers to a site visit to inspect aboriginal middens, and some liaison with the solicitor and with the appellant, presumably in relation to the middens.  It is therefore not obvious that these accounts have anything to do with this prosecution, and I will not allow this amount.  The amount of expert witnesses’ fees allowed is therefore $5,898.

18. [18]
    I therefore order the respondent to pay the appellant $12,898 as costs of the trial.