Worchild v Peterson (No. 2)[2007] QDC 159

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: The appellant seeks an order that the respondent pay his costs of defending the charge in the Magistrates Court and his costs of successfully appealing his conviction in this Court.

The appellant is unrepresented, and was unrepresented before the Magistrate. 

The case of Ellery, relied on by the appellant is, in my view, distinguishable.  In that case the appellant was legally represented.

As to the appeal, the respondent contended that he was required to address grounds of appeal which were either groundless or not dealt with on the appeal.  That often occurs, and by itself, is no reason to deprive a successful party of his costs, or some or most of them. 

The respondent has also referred to section 65 of the Evidence Act as if this, had it been referred to in earlier argument, may have led to a different result on the appeal.  I am unable to agree (and that much appears to be faintly conceded in paragraph 19 of the respondent's written submissions) and in any event, even if the respondent was correct, the same section may have authorised the admissibility of the map referred to in the passage of evidence set out on page 7 of my judgment.  The respondent also concedes that the prosecution may have been at fault in the respect referred to in paragraph 23.  The fact remains that before the Magistrate gave his decision the appellant had made his hearsay objection perfectly clear.

The respondent criticises the appellant for taking a "tactical decision" as to the admissibility of evidence.  He was entitled to do that and that stance did not obviate the necessity for the Magistrate to deal with the charge on the basis of evidence strictly admissible.

The appellant was admitted as a solicitor on the 27th of June 2003, but apparently does not now, and did not have a practising certificate when he represented himself before me or before the Magistrate.  The rule allowing costs to a legally qualified person acting for himself (even if not entitled to practise) referred to in Guss v Veenhuizen (No.2)(1976) 136 CLR 47 is not dependent on the circumstances first being exceptional (as contended for by the respondent)  rather, it was said that such costs are awarded "upon an exceptional basis and not upon the basis upon which costs are ordinarily awarded" (paragraph 16).

Further, the appellant is not claiming legal costs as such as the respondent submits.  He was entitled to represent himself.  He is entitled to certain costs calculated by reference to those charged by a solicitor, if, in fact, he is entitled to costs at all.  In paragraph 6 of the judgment, the High Court said

"Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because he, happening to be a solicitor, his costs are able to be quantified by the Court and its officers." 

This distinguishes the statutory provisions relied on by the respondent.

In my view, the circumstances of the appellant are distinguishable from those in Guss, and in this respect, I adopt what Mr Justice Studdart said in Lloyd v. Hill [2004] New South Wales Supreme Court 652, as follows:

"[15]  It is correct that a defendant solicitor who appears in person is entitled to recover such costs as he could have recovered had he employed a solicitor to act for him, save for items which do not become necessary because the solicitor is acting for himself: see London Scottish Benefit Society v Chorley & Ors (1883-84) 13 QBD 872; Tolputt & Co Ltd v Mole (1911) 1 KB 87; and Guss v Veenhuizen (1976) 136 CLR 47; but see also Cachia v Haynes (1993-94) 179 CLR 403 where the principle was criticized in the joint judgment of Mason CJ, Brennan, Deane, Dawson and McHugh JJ at 412-413.

[16]  In Guss v Veenhuizen, the solicitor who was party to the proceedings had his costs disallowed as, unbeknown to him at the time of the proceedings, he was not entitled to practise in the High Court because his name did not appear on the register of practitioners.  That his name had not been placed on the register was due to some administrative error in the registry.  In concluding that the solicitor was entitled to recover his professional costs, Gibbs ACJ, Jacobs and Aitkin JJ said at p 52:

'The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred.  The answer depends on the true basis of the rule.  Since its basis is not one of privilege to a solicitor (in which case it might be argued that the precise qualification must be satisfied) but is that work done by a solicitor can be quantified on a taxation of costs, there is no reason why work done by the appellant whose lack of the precise qualification was the result of an error of an officer of the Court, should not have the benefit of the rule of practice.  If the error had not been on the part of an officer of the Court but had been the fault of the party himself, the Court would not attempt to assess his capacity to do the work done by him.  He would be regarded as in the same position as an ordinary layman.  But when the lack of qualification cannot be regarded as a lack of capacity because it has occurred simply through the error of a Court officer, then the principle to which we have referred earlier in these reasons is applicable and the Court should treat him as though he had the qualification which brings him within the rule of practice.'

[17]  There was a different outcome in Kenna v Connolly (1943) 17 ALJ 32.  In that case fees were not allowed in respect of counsel or his solicitor who had failed to register for practice in the High Court as required by s 49 of the Judiciary Act.

[18]  The present case is to be distinguished from Guss.  It is not suggested that the lack of a practising certificate after 30 June 2001 was due to some error of an officer of the court; rather it appears Mr Longman made no application for renewal of his practising certificate."

In the present case it appears that the appellant himself has chosen not to practice, and in those circumstances, he should not have the benefit of the rule of practice allowing a lawyer representing himself to recover costs. 

The hearing in the Magistrates Court was on the 4th October and the 8th of November 2006, and before me on the 8th of May 2007.  The appellant's Restricted Employee Practising Certificate expired on the 30th of June 2006 and he deposes that he could not afford to renew it. 

So far as s 158A(2) of the Justices Act is concerned, in my view there was, within the meaning of sub-paragraph (d), insufficient evidence to convict the appellant.  The respondent's case was not properly prepared and was evidentially deficient, and to the extent possible a costs order in favour of the appellant is warranted.

The appellant's costs are limited only to "costs out of pocket" (London Scottish Benefit Society v Chorley & Ors (1884) 13 QBD 872 and 875) but not including "the costs and expenses of his travel and loss of time" (per Coke cited in Cachia v Haynes & Anor (1994) 179 CLR 403 at paragraph [11].  He is not entitled to witness expenses but is entitled to any filing fees and other Court fees paid by him.  This applies to the hearing in the Magistrates Court and in this Court.

For these reasons, I order that the respondent pay the appellant's costs in the Magistrates Court and the District Court, limited to any filing or other Court fees paid by him.