DISTRICT COURT OF QUEENSLAND

1. [1]
   Years before the events underlying the present proceeding, on 1 July 1991 David Robert Carter executed a deed which recited the agreement of the Crown in right of the State of Queensland by its servants and agents not to proceed with certain charges against him whose operative parts “plainly precluded…seeking costs upon the dismissal of those charges.” See Bell v Carter [1992] QCA 245 at p 3.  Later on that day a Magistrate dismissed both charges.  Mr Carter’s counsel then applied for costs.  The Magistrate, not informed of the terms of the deed, exercised his discretion to grant costs:

“…However, his endorsement on the bench charge sheet indicates that on that day he dismissed the charge, ordered that the appellant pay the respondent’s costs, and adjourned the quantum of those costs to a date to be fixed.

Each of these orders is contrary to s 159 of The Justices Act 1886 which provides:

‘The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of prosecution.’

There can be no doubt that on 1 July 1991 the Magistrate dismissed the charges.  The only question in doubt is whether he made an order for costs leaving quantum to be fixed at a later date, or made no order for costs at all on that date notwithstanding an intimation of his intention to do so.  It is not necessary to decide which of these courses he took.  Both were beyond power.  If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination on the question of costs.

The rule nisi should therefore be made absolute.”  (Ibid at 4-5)

(On a later date, the Magistrate had “purported…to fix those costs and had ordered the appellant to pay (them)”.)

2. [2]
   The main issue in this appeal brought by the complainant under s 222 of the Justices Act 1886 arises from the failure of another Magistrate and some (if not all) counsel to have in mind Bell v Carter at the vital moment in the Magistrates Court at Holland Park on 20 September 2007, notwithstanding that they were aware of the case from previous experience.  The Magistrate here, when counsel for the parties who were going to have to pay costs took the point, accepted that he had made an error and that he was functus officio, without any jurisdiction to make an order about costs.  No submission was made to the contrary.  His Honour stated that the matter would have to be rectified on appeal.

3. [3]
   The trial occupied a couple of weeks of court time, spread over several months. There were four bench charge sheets referable to four separate complaints. The respondents were charged as joint tenants of a property at 292 Pine Mountain Road, Carina Heights (of some 4-hectares of largely forested property abutting the Whites Hill Reserve) that they “did, in the period of 12-13 August 2004, interfere with protected vegetation at the Property, or cause or permit it to be interfered with, when that interference was not strictly in accordance with a permit issued by Council or an exempt activity under Part 7 of the Natural Assets Local Law 2003 contrary to s 7(2)”.  There was a separate complaint for each respondent containing that charge.  Each faced a further two-count complaint, reduced to a single count, as things turned out, that he or she on 9 August 2005 failed to comply with the Compliance Notice dated 11 November 2004, “given…pursuant to s 35(1) of the Natural Assets Law 2003; contrary to s 35(5).”  Recriminations were flying in the course of the appeal hearing as to which side bore responsibility for the length of the trial.  The respondents/defendants necessarily contributed to the duration by raising issues such as the unreliability of official mapping to establish the existence on the property of “protected vegetation”, whether a memorandum from a fire officer, Mr Dawson was a “requisition” within s 69 of the Fire and Rescue Service Act 1990, the validity of the permit referred to in the complaints on multiple grounds, the validity of the Brisbane City Council’s Natural Assets Law 2003 and a limitation argument.  The reading of reasons for determinations that the elements of all charges before his Honour had been established on 8 August 2007 accounted for 80 pages of transcript; his Honour’s very full notes, supplied to the parties in recognition of the delay they were facing in getting a transcript, cover 41 pages.  The remarks in both versions conclude that his Honour was refraining from recording a conviction, as he intended to adjourn the hearing for submissions about “sentence and costs”.  This was expressly “as arranged with/between the parties”.  After second thoughts about the adjournment date the order was:

“Adjourn each of the complaints until 9am on 20 September 2007 for submissions as to sentence and also submissions as to costs.”

Only the solicitors were present in court.  Counsel had joined in writing to his Honour:

“We request that, on that date, you merely announce your intention to rule as you intend to do in this case, publishing by reading into the record the decision you propose to give, without formally making orders.  By this means, the parties can be saved the not inconsiderable expense of preparing to fully argue all possible permutations and combinations of decision and costs argument (including quantum of costs) some of which may or may not eventuate.  Having regard to Your Honour’s intimation given on 8 August, the proceedings may then be stood over to a further mutually agreed date on which final orders can be made and then comprehensive submissions, directed specifically to the outcome previously foreshadowed by your Honour, may be given.”

The letter bespeaks awareness of Bell v Carter.

4. [4]
   On 20 September 2007, Mr Allen, for the respondents, rose to express concern that, if his Honour had said in court on the earlier day, “I find the defendants guilty of each offence”, that was an appealable order for the purpose of s 222(1) of the Justices Act 1886, setting time running against his clients “contrary to the intent of the parties…reflected in (the) letter on 25 July 2007”.  His Honour was asked by Mr Allen to set aside the conviction under s 147A(3)(d); this his Honour did, with some encouragement from Mr MacSporran SC, who expressed some doubt as to the availability of the section relied on.  The Magistrate said:

“In accordance with either s 147(a) or s 188 of the Penalties and Sentence Act and indeed I do believe the Court also has the inherent jurisdiction to do that, I set aside my previous order of 8 August. And I find in respect of the complaints against each defendant that the prosecution have established each element against each defendant beyond reasonable doubt.  And this morning I find them guilty of each offence.  And that is the order as of today for the purpose of the conviction…

Yes, Mr MacSporran, if I could hear you with regards to penalty first, and if there are any submissions for costs we can deal with               that after that.” (Transcript p 4)

5. [5]
   At p 43 of the transcript, at the end of submissions on sentence, one reads:

“I’ll take an adjournment and consider those submissions and I will give my sentence and then I’ll hear the issue for any application for               costs and submissions in that regard.” 

6. [6]
   When the court resumed, reasons for the determination of penalty were pronounced:

“One fine is appropriate against each offender as provided by s 49 of the Penalties and Sentences Act, as each offence arose out of the               one continuing set of circumstances.

I impose one penalty in respect of each defendant and while I have no guidance of any appropriate or similar offenders under the Natural Asset Local Law, I find the penalty of $4,000 is appropriate in respect of Dr Senewiratne and a penalty of $1,000 is appropriate in respect of Mrs Senewiratne.

Without recording a conviction and in accordance with s 12 of the Penalties and Sentences Act, Dr Bryan Senewiratne is [fined] $4,000, in default of payment 46 days imprisonment.  Without recording a conviction, Mrs Kamalini Senewiratne is fined $1,000 in default 10 days imprisonment.

Now, there is the issue of costs, I take it there be no agreement on that…we all have a break until 2pm?  Could we start again then?”

7. [7]
   The fines were transferred to SPER.

8. [8]
   When the court resumed, Mr MacSporran made his application for costs, attracting an objection to his tender of an affidavit on the costs issue from Mr Allen, who made reference to s 158B of the Justices Act which gives a court the possibility of ordering costs higher than scale “having regard to the special difficulty, complexity or importance of the case.”  At page 23 of this transcript, his Honour indicated the view that it was a “complex prosecution…under subsection (2)...the nature of it, the complexity of it and the importance of the case is sufficient for me to consider an allocation of costs greater than the Justices Regulation.”  At page 12, Mr Allen handed up “a schedule of the total amount of the costs…if you were to award costs pursuant to the scale.”  The position was reached (page 32) where “there is a gap between $9,000” (Mr Allen’s schedule amount, approximately) and $166,000 or so (Mr MacSporran’s amount – page 34).  At 51-52, there was an adjournment until 27 September 2007 for handing down of the decision about costs.  On 25 September, Mr Allen wrote to his Honour and the prosecutor’s counsel referring to Bell v Carter and submitting that there was no power to make any order fixing the amount of costs to be paid by each defendant to the complainant.  The letter attached copies of his schedule ($9,750) and the complainant’s ($166,856.90). 

9. [9]
   At a more basic level, there were “filing costs of $128.60 sought in respect of each complaint” to which Mr Allen said he could not maintain an objection (page 25) as they “ordinarily follow”, likewise the postage costs. As to outlays, aggregating $1,912.25 for witness expenses, service of documents and the like, the only quibble indicated related to transcript fees (page 26). There is no reason why such costs ought not to have been awarded or, indeed, the scale costs under the Justices Regulation, which Mr Allen appeared to acknowledge as appropriate by propounding his schedule.  As things stand, because Bell v Carter was overlooked, and because his Honour took the view on 27 September 2007 that there was nothing to be done by way of repetition of the setting aside in reliance on s 147A or s 188 the week before, no costs whatever were awarded.  I think it is clear that before the orders were made imposing sentences, the Magistrate had developed an intention to award costs, and probably in a higher amount than the scale.

10. [10]
    The orders the Magistrate made disabled him from proceeding to make the appropriate or any costs order. The appellant/complainant is thus “aggrieved” by the orders made and entitled to appeal them under s 222(1) of the Justices Act 1886.  That an appeal may be brought in relation to costs only is indicated by s 222(2)(b).

11. [11]
    This appeal is not only about costs, it also seeks determination that the fines imposed were manifestly inadequate and ought to be increased. No complaint was made about the decisions not to record convictions.

12. [12]
    When the appeal came on, Mr Allen rose to raise a preliminary point of law not included in outline of argument dated 8 February 2008, filed as required by Practice Direction 5 of 2001. It was to the effect that the appeal was fatally defective in form, that the court had no jurisdiction to hear it and was based on the proposition that there ought to have been a separate notice of appeal for each complaint, alternatively, for each respondent. I declined to accede to Mr Allen’s request to determine the jurisdiction point before proceeding, being of the view that, everybody being prepared for a full hearing on the merits, that represented the convenient and more economical course (even if it would turn out that a few hours of the participants’ time had been wasted). I was fortified by this preliminary point being one Mr MacSporran SC was not prepared to meet. The jurisdiction issue was to be considered along with the previously identified merits issues. There would appear to be some analogy here with the practice frequently adopted in the Court of Appeal in which the full merits are argued on an application for leave to appeal, even though leave may not be granted in the end result.

13. [13]
    For the appellant, reference was made to s 224(1) of the Justices Act which this court may:

“(a) extend the time for filing a notice of appeal; or

(c) amend the Notice of Appeal…”

also to s 228:

“No appeal shall be defeated merely by reason of any defect whether of substance or of form in any notice of appeal or in the statement               of the grounds of appeal.”

It appeared to me that those provisions, in combination, would render it appropriate, if the preliminary point were good, to amend the appeal by way of confining it to Dr Senewiratne’s matters and allowing the appellant additional time to file a separate appeal in respect of his wife’s matters, she (to all appearances) being in a position to respond to such an appeal, assuming the grounds remained unchanged, without any further preparation.  It would appear a somewhat arid exercise to go through implementation of those steps.

14. [14]
    From experience of dealing with s 222 appeals which, according to the usual practice, are often a group of separate proceedings in separate files in closely related matters determined by the Magistrate at the same hearing, I express a clear preference, which I am sure other judges would share, for a procedure which would collect all such matters in a single court file or proceeding. Unfortunately, that is not the presently relevant test. Section 222 is silent as to whether there must be a separate appeal for each “order” which leads the appellant to feel aggrieved (subsection (8) refers to the approved form, which is not found in the Act or in the Justices Regulation, but, rather, promulgated by the relevant government department).  The form offers no guidance.  Mr Allen’s argument extended the principle of the Act according to which it deals with proceedings commenced by complaint (Section 42) which, apart from exceptional cases, “shall be for 1 matter only” (Section 43); where, as here, the defendant pleads not guilty, the court proceeds to hear evidence following which it “shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require” (Section 146(1)); it is a requirement that a minute or memorandum of any conviction or order be made and signed (Section 150).  This focus on the “order” carries over into Part 9 Appeals, particularly in the definition section, Section 221:  See the definitions of appealed order, relevant Magistrates Court and respondent (the person concerned in upholding the appealed order).  By Section 222(3), to start the appeal invited by subsection (1) the appellant must file a notice of appeal.  There is a comprehensive definition of “order” in Section 4.  The absence from Part 9 of anything corresponding with Section 43(1) may be significant.  That apart, I do not find anything there which limits the subject matter of a notice of appeal in the way contended for.

15. [15]
    Mr Allen drew the court’s attention to decisions which, by allowing what they did, may arguably have acknowledged some underlying idea that there should be separate notices of appeal for separate charges or complaints. In Elliott v Harris (No. 2) (1976) 13 SASR at 518-19, Bray CJ said:

“In limine there is the question of the notice of appeal.  In Samuels v Leech Hogarth J held that there was no objection to appeals against several convictions on several counts in one complaint being instituted by one notice of appeal, and indeed, that it was preferable that this should be done.  With respect I agree, in the circumstances of that case.  It is true that his reasoning does not in terms apply to an appeal against several convictions of the same defendant arising out of different complaints heard concurrently, but I think the logic of the decision does apply.  Section 163 gives the right of appeal to this Court “from every conviction, order, and adjudication of a court of summary jurisdiction…or an order dismissing a complaint of a simple offence.  The appeal is against the conviction, not against the complaint.  If one notice can cover several convictions arising out of one complaint, so, it seems to me, by parity of reasoning it can cover several convictions arising out of different complaints. I think the case cited by Mr Tilmouth, for the appellant, Reg v Justices of Oxfordshire,^[1] is an authority for this.  There three defendants were jointly charged in one complaint. They were convicted and three separate convictions were drawn up (see at p 865 of the English Reports).  They appealed in one notice of appeal. The Court of Queen’s Bench held that the notice was good. Lord Denman C J pointed out that there could be no doubt as to the order (or orders) of the Court of summary jurisdiction to which the notice referred.^[2] Nor can there be here.  Coleridge J said: “We may take the notice of appeal distributively.”^[3] So may this notice be taken. Mr Bishop, for the respondent, distinguished the case on the ground that there was only one complaint. But there were three convictions and I repeat that it is from the convictions that the appeal is given by the statute.

Accordingly, I think that the notice is good, but, of course, there is nothing to stop an appellant from giving a separate notice of appeal from each conviction. In the circumstances of Samuels v Leech^[4]Hogarth J thought that the preferable course was for there to be only one notice of appeal, and, as I have said, I respectfully agree with that. In other circumstances it might be preferable that there should be separate notices.  Indeed, in some cases, as if there were absolutely no nexus at all between the various convictions, I might be an abuse of the process of the Court if there were not several notices.  And, of course, one notice could not cover appeals by entirely disparate parties with no nexus at all.  But, as it is, I think this notice is good. The complaint containing the six counts and the complaint with one count, with which we are concerned, were heard together and the charges relate to the same sort of false pretence.”

16. [16]
    In the same jurisdiction, in Curnow v Police (2008) 100 SASR 290 it was said at 302:

“Only one appeal required

[34] Before concluding these reasons, it is necessary to remark on the fact that three appeals have been instituted when only one was necessary.  These proceedings began with one information by which all three appellants were charged with five offences.  The hearing of the trial proceeded jointly against each of the three appellants.  The Magistrate published one set of reasons.  The general rule is that all persons jointly charged may appeal against an adverse order by one notice of appeal.  There was no occasion for three separate notices of appeal.

[35] In consequence, unnecessary costs have been incurred in drawing, engrossing and filing three notices of appeal, three applications for permission to appeal and three affidavits in support of the application for permission to appeal.  Only one of each document was required.  Another consequence is that, instead of one filing fee of $144 being incurred to file the notice of appeal, three fees in that amount have been incurred.  The appellants’ solicitors cannot in any way justify these additional costs.  I will, therefore, make orders to the effect that the appellants’ solicitors themselves bear the cost for the two filing fees which were unnecessarily incurred, a total of $288.  In addition, there will be an order limiting the costs which the appellant’s solicitors can recover for the work in instituting these appeals to the cost of the preparation and filing of one notice of appeal, one application for permission to appeal and one affidavit in support of that application.”

17. [17]
    In Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 190 FLR 140, there were two corporate respondents charged with taxation offences, multiple offences being charged against each.  The companies were “interconnected” and by agreement all charges were heard together.  The Commissioner filed two notices of appeal, one against each company.  While there was rather a plethora of defects in the appeal procedure leading to the two appeals being summarily dismissed, Asche J accepted the following argument, set out at 142:

“…It is submitted by Mr Mildren QC for the respondents that the Act contemplates separate notices of appeal against every sentence or order which it is desired to appeal from.  This, it is said, can be the only reasonable inference which can be drawn from the expression in s 163 which gives a right of appeal from “a” conviction, order or adjudication and the requirement for the appeal to be on a ground which involves sentence or error or mistake “in every case”:  see also s 171(2) which requires that “every” appeal shall be instituted within one month; see also s 177(1) which provides that “every” appeal shall be heard and determined by the Supreme Court in a summary way. It is further submitted that there would be great practicable difficulties of the notice of appeal encompassed more than one appeal; since the Supreme Court might make different orders in relation to the several appeals mentioned in the notice that is, it may allow one, dismiss one and vary one, all on the same notice of appeal. Furthermore, the provision in s 172(3) that a               prescribed fee shall be paid indicates that the Act intends separate               fees to be paid on each appeal and that he combining of several               appeals in one notice would be an attempt to evade the payment               required.”

18. [18]
    Asche J said at 144:

“I accept the arguments for the respondent that it is defective to file one notice of appeal which relates to more than one appeal.  I accept them for the reasons already advanced but more importantly because the question has already been determined by Kriewaldt J in the case of Lawrie v Stokes (1951) NTJ 66.  In that case the appellant was charged on four separate complaints each contained in a separate document. He was convicted on all four charges and fined on two of them and sentenced to separate and cumulative terms of imprisonment on the other two. He apparently desired to appeal against the convictions which resulted in his imprisonment but he filed only one notice of appeal which purported to be “against (a) certain conviction”. But he then described the “conviction” by referring to the sentences in the two cases in which he had been sentenced to imprisonment.

Kriewaldt J was of the view that separate notices of appeal were necessary in relation to each conviction.  He (at 79) says:

‘It is implicit from what I have said that although the charges were heard together there were nevertheless four distinct matters before the Court.  There were four complaints, four convictions, and four separate penalties were imposed.  The fact that the four complaints were heard together did not convert them into one charge of four offences.  It follows that if the appellant desired to appeal against all four convictions he was bound to give four separate notices of appeal, and similarly if he desired to appeal against two convictions, he was bound to give two separate notices of appeal.

In fact there is only one notice of appeal.  There is a second file in the Supreme Court NO 78 of 1951, which contains only the complaint and conviction on the assault charge and a praecipe to set down, which by the way is not even signed by the solicitor for the appellant.  There is on this file no notice of appeal.  I was informed on the hearing that two ‘setting down’ fees were paid.  I have come to the conclusion that there is only one appeal before me, because there is only one notice of appeal.’

His Honour was of the opinion that he could amend the notice at least by striking out the reference to more than one conviction: see at 80. This, his Honour proceeded to do; and obviously in fairness to the appellant he dealt with the charge which carried the cumulative sentence.”

19. [19]
    I would be somewhat surprised if similar strictness were shown towards a convicted appellant today. One would expect s 228 to make a difference. I would also be surprised if today it were beyond the wit of the appeal court to come to grips with the possibly disparate fates of multiple “appeals”. Here, as it happens, the Magistrate has made a single “order” of penalty covering both relevant offences for each of the respondents, a course encouraged by s 49 of the Penalties and Sentences Act 1992.  The local legislation is different from the Northern Territory’s.  In particular, it does not have anything corresponding to the use of “every”, which was taken to support a notion that a collection of separate “appeals” together might somehow find their way into an omnibus proceeding, with the inconvenient consequences alluded to.  Elliott v Harris was not referred to.  Being a decision in Banco, it is the one that ought to be followed.  Bray CJ’s reasons were agreed in by Bright J.  Zelling J was rather ambivalent about the necessity for separate notices of appeal for each offence, recommending that the South Australian Justices Act be tidied up to remove any confusion.  At 530 he accepted it might be argued, “that if a court did in fact include a number of offences in a formal conviction, there was only one conviction to be appealed against and if that was so, the point I’m now discussing would not arise.”  The Chief Justice appeared to have an open mind regarding a single notice of appeal by disparate parties if there was sufficient nexus.  There was sufficient nexus in the circumstances of the old English cases, as I think there is here, although the respondents were not jointly charged.  The relevant facts are limited to work done at the respondents’ jointly owned property in the presence of both of them (in the appellant’s case) and work not done there as required by identical compliance notices given to the two of them.

20. [20]
    Reference might be made to the Acts Interpretation Act 1954 as warrant for reading the singular “order” in s 222 as covering the plural case, while noting that Zelling J in Elliott at 529 doubted that the South Australian equivalent would help, being in “doubt whether that section has any effect on forms such as the one…just quoted” (529).

21. [21]
    If “protecting the revenue” were ever a consideration in Queensland in these matters, it is no longer.  There are no filing fees.  If there had been, I would prefer  the approach of Debelle J in Curnow.

22. [22]
    In the circumstances, I reject the preliminary points. If it were necessary, the case for turning to s 224 and s 228 to cure the difficulty would be compelling. (The foregoing was prepared before receipt of written submissions of the appellant dated 5 December 2008, which do not lead me to change what has been written; they appended, for use if necessary, an amended and a new notice of appeal as envisaged in [13] above.)

23. [23]
    The appellant fails to satisfy me that the fines imposed on the respondents were manifestly inadequate, although they may appear light. The respondents are people in their seventies of impeccable character, indeed with long and proud records of achievements in service to the public, who had no difficulty in assembling a big cast of referees who wrote in glowing terms (for the most part, if not entirely, aware of the charges). Mr MacSporran submitted the offending was more deserving of punishment, more blatant, because of the history of dealings with the Council. It was said to place the respondents in a worse position to have sought the permit. Assessments had been sought, in a context where fire had already damaged a shed on the property, from fire authorities. In my opinion, it can be taken as favourable to the respondents that the authorities were brought in. The permit to clear vegetation which the Council issued to Dr Senewiratne (only), when it came, came with conditions incorporated that would be costly and difficult to satisfy: a large area of problem understorey comprising lantana, groundsel and a large list of other pest species had to be removed without damaging protected trees. The respondents gave no evidence, so we are left to guess at their thought processes. A contractor with mechanised equipment adapted to clearing (a drott) was brought in and an acre or more was cleared by this means, without damage to the larger established trees. A good number of “saplings” of the species, defined as within 100mm diameter, were destroyed along with the unwanted undergrowth. The Magistrate preferred the evidence of one Council officer that up to 300 saplings may have been removed, to that of a colleague who estimated up to 60. I am inclined to think it would be open to this court to proceed on the basis of the lower figure. It would not make much difference in the result.

24. [24]
    The case is far from the typical one of an offender pursuing some commercial purpose who lays waste protected vegetation. There was no suggestion that the respondents have any commercial end in mind. Nor did they lay waste to their land. Photographic evidence indicates that what the drott operator left was generously treed woodland not really capable of being turned to any purpose other than people and animals enjoying it, which might have been pleasing to all had some appropriate ground cover become established. Aerial photography before and after suggests that the depredations were barely discernible from above; I doubt they would be at any distance.

25. [25]
    I am less sympathetic to the respondents in respect of their failure to re-vegetate as the Compliance Notices obliged them to. It seems that their response was to do nothing at all, rather than make some gesture towards at least partial compliance. For years the Council had been seeking to acquire some of the property as part of its program of acquiring bushland. In 2007, procedures for its compulsory acquisition were advanced to the stage of publication of the relevant notice in the Government Gazette. I agree with Mr MacSporran that there is a lack of evidence to illuminate this aspect of the respondents’ case. The point is presumably that the Council would become responsible for the (relevant) 2.59 hectares resumed, and that this represents kind of justification for the non-compliance offence here. It is the one carrying the heavier maximum penalty: $37,500 as against $15,000. Potentially, each of the respondents could have been fined $52,500. It was accepted that the maximum penalty ought to be reserved for the most serious case, which I suppose would be complete destruction of all protected vegetation on a (possibly much larger) site by a “developer” with a commercial motive, followed by refusal to implement revegetation. The case is far removed from anything of that order. I would accept that the respondents wanted to achieve the outcome of a pleasant dry sclerophorous forest. It is the failure to do what the Council required after Dr Senewiratne approached it, which is said to make the offence more serious.

26. [26]
    The aggregate penalty of $5,000 is just under 10% of the maximum. It was split by the Magistrate in recognition that, for all that appeared, Mrs Senewiratne’s role was minor, nothing being shown against her other than physical presence while some work was going on when her husband played a more active role, for example, instructing the operator to cease work when the Council officer required that. While accepting that each respondent faced a penalty, there is a troubling aspect, to my mind, in an outcome involving multiple penalties because there are numerous defendants brought before the court, when a corporate offender responsible for the same situation would face only a single penalty. In a husband and wife situation like the present, I would think it appropriate to have regard to the maximum penalties provided only once, allocating the penalty between the spouses in whatever proportions seemed appropriate.

27. [27]
    There is a lack of comparable sentences, although a fair number of sentences by Magistrates involving destruction of vegetation. Typically, they involve clearing on a much larger scale (although in one case a large fine was imposed for destruction of a single fig tree), to permit a crop to be grown, for example. In some cases, the vegetation was classified as “endangered”, which is not the case here.

28. [28]
    Another aspect which I consider significant is the Magistrate’s sentencing on the assumption that there would be a substantial financial detriment to the respondents by way of costs to be paid to the complainant (of course, there was the further burden of having to bear their own costs). The rationale for ordering costs, generally a possibility only in summary prosecutions, is to limit the extent to which a complainant who establishes a case for conviction is out of pocket – rather than punishment of the offender. The costs order, if made, is not really part of the sentence. It cannot have default imprisonment attached. It is established that when the appropriateness of a fine amount is in question, regard may be had to the impacts of an associated costs order. Thus, in Dever v Creevey; ex parte Creevey [1993] 1 Qd R 232, at 247, Thomas J said:

“Penalty

The appeal also raises the ground that the penalty was manifestly excessive.  The stipendiary Magistrate imposed a fine of $2,000 and ordered the appellant to pay costs fixed at $1,936, allowing one month to pay.

The maximum penalty (prescribed in penalty units) translates into a maximum penalty of $24,000 (s 94(3)). It was not suggested that it was inappropriate to order costs or that the quantum of the costs was unfairly assessed. However, the incidence of the costs order needs to be kept in mind in considering the question whether the fine is unduly oppressive or inappropriate.”

29. [29]
    At 239, McPherson ACJ had said:

“As regards the appeal against penalty, it was submitted that a fine of $2,000 was manifestly excessive, the more so when account is taken of the order that the defendant pay the costs of the prosecution.  The latter may well be a relevant factor in the assessment of penalty; but it must be said that it is primarily the natural consequence of the defendant’s own decision to defend the complaint laid against him, and of having done so unsuccessfully and, as it now appears, without justification in fact or law.”

Byrne J agreed with both of the other members of the Court. 

30. [30]
    To the extent that the fines under appeal may appear lenient, I would think this is the explanation. The “comparable sentences” made available show a pattern of the costs exceeding the fine in matters like the present. In Bone v Mothershaw [2003] 2 Qd R 600; SLR B29/2002 however, the fine was $20,000, the costs $6,513.

31. [31]
    There was going to be a substantial costs order (one in excess of $9,750 in my opinion) at first instance, but for his Honour’s confessed error (I do not accept Mr Allen’s submission that the error was solely the appellant’s, in failing to prevent the Magistrate from pronouncing the sentences as he did, without having first identified an amount of costs to award, to satisfy s 159, citing University of Woollongong v Metwally (1984) 158 CLR 447, 483, as quoted in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645.  It was said the appellant was bound by the way her case was conducted before the Magistrate.  Perusal of the transcript indicates to me that this was nothing like a case of counsel deliberately sitting back while his Honour was obviously running foul of Bell v Carter.  It would have required very quick thinking to intervene at that point.  I think it is a travesty to present the appellant as now trying to present a different case. 

32. [32]
    Although the appellant does not satisfy the court that the fines imposed below were inadequate and so ought to be set aside, it does persuade the court that the relevant orders were made in error by being made when they were with the consequence of preventing his Honour’s implementing his intentions to make an order for costs in favour of the appellant; on this basis, those orders should be set aside.

33. [33]
    So far as costs are concerned, I do not propose to say much. I have been required to make similar determinations on occasions, most recently in Lucy v OCC Holdings Pty Ltd (No. 2) [2008] QDC 169, in which may be found a statement of the kind of approach I think the court ought to adopt.  I am in no sense treating Lucy or any case referred to in the reasons given there as indicating what ought to be the outcome here.  This reference is made simply for the purpose of avoiding repetition at length of the principles I set out to apply in the present appeal.  The award will necessarily fall far short of what the appellant seeks, and for similar reasons, including that I do not think the respondents ought to be made pay for the costs of two counsel being engaged at the trial.  I am not inclined to alter that approach here although in the future I may have to revisit it, if, for example, the unusual phenomenon of an application by the respondents-defendants to strike out the prosecutions as an abuse of process (encountered in Lucy and replicated here) should proliferate in a concerning way.  Engagement of senior and junior counsel to deal with such challenges may well be reasonable, as well as advisable. 

34. [34]
    These matters were complex, and made more so by the points the respondents chose to run at trial (I do not suggest unreasonably). Tending to support a larger costs order is the substantial level of costs incurred and paid. While accepting that the appellant’s assertions about costs are not supported by any itemised account, or documentation by way of vouchers and receipts (which would preclude any order for payment of them in full), I am in no doubt that the bulk of the costs has been properly and reasonably incurred – producing a sum so far in excess of any costs order the court is likely to make that it would be an indefensible imposition upon the parties to require a conventional taxation or assessment.

35. [35]
    The appellant, as prosecutor, cannot expect anything like a costs indemnity. Traditional practice precluded costs orders for or against the prosecution. The statutory in-roads are on the basis of a modest scale which imposes a cap. The discretion the court has to exceed that cap must still have regard to it as the starting point. In other words, I think the question comes down to one of by how much should the cap amounts be increased. If distinctions are to be drawn between prosecution and defence, I would expect the court to be more parsimonious in awarding costs in favour of the prosecutor, at least where he or she is or represents a public authority, such as a local government, which bears the responsibility of enforcing State and local laws.

36. [36]
    In current circumstances, it cannot be expected that this will be achieved either without cost or cheaply. The engagement of two counsel, especially where the defendant engages only one, generates in me concern of an appearance of imbalance if the defendant is unsuccessful and faces having to pay for the bigger battalions on the other side.

37. [37]
    While it may not fit easily with the view taken that it is appropriate for there to be this single appeal, rather than two or four separate appeals, one tenable way of working out costs is to calculate separately the costs for each complaint, and award them cumulatively. That was the way in which costs were resolved in Lucy (where there were multiple appeals).  This is a stronger case for the prosecution than Lucy in that the present respondents have been found guilty after a trial, showing that the prosecutions were well founded.  In Lucy there is yet to be a proper hearing on the merits.

38. [38]
    It is preferable to fix costs now, rather than remit the exercise to the Magistrate.

39. [39]
    Notwithstanding the quibble at first instance in respect of transcript fees, I would allow the outlays the prosecutor claimed ($1,912.25) and the court costs ($268.40). As to legal professional costs, the allowance should be $39,000, which may be seen as accepting Mr Allen’s identification of scale costs for the Magistrate, namely:

and applying it separately for each complaint (the amounts to be cumulative) or as a single set of costs (on the basis of a single hearing) inflated by a factor of four in recognition of the complexity of the matter, one might add the difficulty of them and, indeed, the importance of them.  The sum falls short of the “round global sum” I had pencilled in in a draft of these reasons.

40. [40]
    The appeal is allowed. The Magistrate’s orders, except for his finding the elements of the charges proved, are set aside. Instead, this court, without recording convictions, fines the first respondent $4,000, the second respondent $1,000 (as his Honour did), and orders them to pay the appellant prosecutor’s costs of the trial fixed at $41,180.65. The making of formal orders in court will be deferred. Presumably, the appellant will be seeking her costs.