DISTRICT COURT OF QUEENSLAND

The Charge

1. [1]
   The appellant is a public officer and employee of the Townsville City Council.

2. [2]
   The appellant made a complaint against the respondent pursuant to s 106(1)(a)(i) of the Transport Operations (Road Use Management) Act 1995, namely parking a vehicle in a designated parking space when a parking fee had not been paid. She submitted a plea of guilty in writing and a written statement in mitigation of penalty.

3. [3]
   On 07 August 2008 the complaint proceeded ex parte in the Magistrates Court at Townsville. The appellant was represented by a solicitor employed by the Townsville City Council, Ms C Stockall. The respondent was convicted and fined the sum of $40 and ordered to pay of $81.10 costs of court. The learned magistrate refused to make an order for payment of professional costs.

The Grounds of Appeal

4. [4]
   The issue in the appeal is the non-awarding of the professional costs of $75.00 sought by the appellant.

5. [5]
   The Notice of Appeal sets out the grounds as follows:

1. “1.
   The learned Magistrate misdirected herself in law in having regard to the existence and operations of the State Penalties Enforcement Registry (“SPER”) in refusing to award costs as sought.

2. The learned Magistrate in fact and law in characterising the appellant’s seeking its costs as “revenue raising” which is neither correct in fact (or was there any evidence to justify any such conclusion in any event) and in having regard to such supposed “revenue raising”.

3. The learned Magistrate had regard to irrelevant considerations and the purported exercise of discretion to refuse the appellant its costs as sought, namely the existence and operations of SPER and the potential reference of the enforcement of any fine imposed upon the respondent, on the complaint, to SPER.

4. the learned Magistrate failed to have regard, or any proper regard, to material considerations in such purported exercise of discretion by ignoring the appellant’s statutory entitlement to appear by a lawyer on an otherwise competent complaint and the availability to the appellant, under statute, of a costs order specifically reflecting (amongst things) legal professional costs including the equivalent as regards an employed lawyer.

5. the learned Magistrate erred in law (implicitly if not explicitly) regarding costs sought by the appellant as a penalty or punitive of the respondent rather than being compensatory of the complainant (as, in point of principle, such costs are).

6. the learned Magistrate erred in the exercise of the discretion in any event because no or no sufficient circumstances existed to warrant the complainant successful upon the complaint, being denied the costs it sought in the purported exercise of the discretion was entirely errant.

7. The appellant seeks the costs sought by it but denied it by the learned Magistrate.”

Infringement Notices

6. [6]
   The process for recovering unpaid parking fees is commenced by the issue of a parking infringement notice. The person who receives the infringement notice may pay the parking fee within the time provided in the infringement notice. If the parking fee is not paid within the time provided the practice of the appellant is to send a reminder notice to the person. The parking fee can be paid up to the time the appellant takes other steps to recover the parking fee, even as late as a time preceding the complaint being heard in court.

7. [7]
   The other steps involve one of two alternatives. Firstly, the infringement notice can be registered with the State Penalties Enforcement Registry (SPER) which will engage the process provided for in the State Penalties Enforcement Act 1999 (SPERA), which may result in the infringement notice being sent to the court for determination (for example, if the infringement is disputed). The recovery of the parking fee is otherwise the subject of the statutory process. Secondly, the appellant may elect to proceed by way of court proceedings by issuing a complaint to recover the parking fee. In this case, the appellant elected the latter course.

The Proceedings

8. [8]
   The nature of the proceedings in the Magistrates Court was the quick determination and disposal of a large number of similar matters, described by the learned Magistrate as doing them “in bulk”. That was the process applied to a number of adjournments or withdrawals of complaints and ex parte proceedings in respect of matters in which defendants had entered pleas of guilty. Some other matters proceeded slightly differently but they are not relevant to the issue in this appeal.

The Professional Costs Issue

9. [9]
   The issue of making an order for professional costs on the complaint arose in respect to all of the complaints that were to be determined on an ex officio proceeding. The appellant’s solicitor told her Honour that the appellant sought payment of the infringement amount, court costs of $81.10 and $75.00 professional costs on each complaint unless otherwise indicated. Her Honour responded in the following terms (T 1-16 to 1-19):

10. [10]
    The complaint against the respondent subsequently commenced as follows (T 1-20):

 The State Penalties Enforcement Registry

11. [11]
    SPER was established pursuant to SPERA. Its functions include recovering money payable to SPER under that Act or another Act, administering the making of enforcement orders and taking enforcement action under SPERA. One of the objects of SPERA is the maintenance of the integrity of fines as a viable sentencing or punitive option for offenders. An infringement notice involving a vehicle maybe served on a relevant person by an administering authority (it is implicit in this case that the appellant is such an authority with respect to parking infringements within its jurisdiction). SPERA provides in s 15 for the content of infringement notices, stating the amount of the fine for the particular offence, how and where the fine may be paid and the time within which the fine should be paid. Section 22 of SPERA provides for the ways an alleged offender may deal with the infringement notice, including payment of the fine in full to the administering authority or giving to the administering authority an election to have the matter of the offence determined in a Magistrates Court.

12. [12]
    Section 27 of SPERA specifies when an infringement notice offence is to be decided by the court, which includes where an alleged offender makes the election pursuant to s 22 or takes no action pursuant to that section. In such cases, a proceeding for the offence may be started under the Justices Act 1886 or the administering authority may give to SPER prescribed particulars of the offence for registration under part 4 of SPERA. When that occurs, the process provided in SPERA for enforcement and recovery of fines is commenced.

Section 16 – Preservation of Rights to Prosecute on Complaint.

13. [13]
    Section 16 of SPERA specifically preserves the right to recover the parking fee through court proceedings:

  “16. THE EFFECT OF THIS PART ON PROSECUTION

  (1)The fact that an infringement notice has been, or could be,  served on a person for an offence, does not affect the starting or continuation of a proceeding against the person or anyone else in a court for the offence.

  (2)This part does not –

    (a)require the serving of an infringement notice on a  person for an offence, as opposed to proceeding against the person in another way…”

 Costs in the Magistrates Court

14. [14]
    In so far as professional costs in the Magistrates Court generally are concerned, the following statutory provisions are relevant.                           

15. [15]
    Section 72 of the Justices Act 1886 (the Act) expressly gives a party in the position of the appellant the right to appear in proceedings such as the subject proceedings, by a lawyer.             

16. [16]
    Section 157 of the Act provides:

  “Costs on conviction or order

  157 In all cases of summary convictions and order including such conviction or indictable offence, the justices making the same may, in their discretion, order by the conviction or order, that the defendant shall pay to the complainant such costs as to them seem just and reasonable.

  Costs for division

  158B (1) In deciding the costs that are just and reasonable for this division, the justices may award costs only –

    (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and

    (b) up to the amount allowed for the item under the  scale.

(2) However the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”

17. [17]
    Schedule 2 of the Justice Regulation 2004 (the Regulation) contains the scale of costs referred to in s 158(B) of the Act and so far as is relevant, provides as follows:

  “Only necessary or proper costs may be allowed

  3. A cost is to be allowed only to the extent to which –

(a) incurring the cost was necessary or proper to achieve justice or defend the rights of the party; or

(b) the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.” 

 Appellant’s Submissions

18. [18]
    The appellant submitted that a complainant in the Magistrates Court had a statutory right, pursuant to section 72 of the Act, to conduct a case through representation by a lawyer: 

“Lawyer

72 Every complainant shall be at liberty to conduct the complainant’s case and to have the witnesses examined and cross-examined by the complainant’s lawyer, and every defendant shall be admitted to make the defendant's full answer in defence to the charge, and to have the witnesses examined and cross-examined by the defendant's counsel or solicitor.”

19. [19]
    It was submitted that an order for costs upon an unsuccessful party is compensatory of the successful party and not punitive: The appellant referred to Latoudis v Casey (1990) 170 CLR 534 and Coulter v Ryan (2006) QCA 567.

20. [20]
    Mr Bain QC submitted that there was no basis for her Honour’s inference of the proceedings being a matter of “rubber-stamping”, nor was there any explanation of what she meant by that expression. It was submitted that there was no evidence of how many – if any – fines would be ordered to go to SPER. It was submitted that s 16 of SPERA was pivotal in that it demonstrated that there was no impediment to a complainant taking proceedings in the court as distinct from another alternative. Section 34 of SPERA distinguished between an “infringement notice offence” and “orders made by a court”.

21. [21]
    The appellant described the refusal to order professional costs as being “an errant and insupportable departure” from any proper exercise of the costs discretion. Her Honour’s approach was described as being of “personal composition and preference.” It was submitted that the refusal to award professional costs was not a proper exercise of the discretionary power as to costs and the refusal should be set aside and an order for professional costs made by this court.

Respondent’s Submissions

22. [22]
    The respondent submitted that the process provided under SPERA was one that should have been followed by the appellant. It was submitted that having elected to proceed by way of court proceeding and in the context of the alternate process provide by SPERA, the professional costs sought by the appellant were not “necessary or proper to achieve justice” as that expression is used in section 3 of schedule 2 of the Regulation. It was also submitted that the election to recover the parking fee by court proceedings was one made “merely at the wish of the party”. The respondent submitted that there was no discretion to award costs on the basis of s 3 of schedule 2 of the Regulation.

23. [23]
    The respondent sought to give substance to her Honour's refusal to order professional costs on the basis of the experience of the courts that a court proceeding is “not going to be recovering [the fine] any more readily because these are all going to SPER.” The latter is a direct quote of one of the statements made by her Honour. The respondent submitted that the discretion to award costs was fettered by the Regulation and that the refusal was a proper exercise of the discretion. It was said that there was no discretion to award costs against the respondent.

24. [24]
    In oral submissions Mr Greggery referred to the discretion having been in fact exercised on the basis that her Honour stated that she was doing so (T1-19.40) and that the discretion was based on proper considerations, namely her belief that other “councils” recovered parking fees through the SPER process (T1-17.55 to -18.1); and that there were no professional costs incurred in the SPER process (T1-18.3).

25. [25]
    The respondent relied on s 158B of the Act and the Regulation as supporting or justifying her Honours decision.

 Appellant’s Reply

26. [26]
    The appellant submitted that section 158B of the Act related to the quantum of costs only and specifically referred to the expressions used in s 3 of schedule 2 of the Regulation. Mr Bain QC submitted that the expressions “to achieve justice” and “at the wish of the party” referred to disqualifying circumstances in respect to quantum. It was submitted that such was clear from the taxation cases dealing with costs. He submitted that s 158B of the Act and the Regulation were not relevant to the issue of alternative proceedings by way of infringement notice or Court process and the Regulation did not change the discretion provided for in s 157 of the Act.

27. [27]
    Mr Bain QC submitted that her Honour's statement that:

“…I am not minded today to impose the professional fees.  I will the costs because it’s a cost that actually has been occurred [sic] today.”

was inconsistent with the respondent’s submissions.  It was a statement that was contrary to s 16 of SPERA.  If the costs of court were being ordered because they had been “incurred” then there could be no rational argument that the professional costs had not been “incurred”.

 Discussion

28. [28]
    The basis upon which her Honour purported to exercise discretion, if indeed she exercised a discretion at all, was in my view both irrelevant and inappropriate. Whilst other “councils” might elect to proceed in a different way, it could not possibly follow that the appellant was not entitled to professional costs because it elected, as it had a right to do, to proceed differently. The fact that professional costs are not recovered by engagement of the SPER process was not a proper basis for a refusal to award professional costs to the appellant. The referral of infringement notices to SPER is an administrative function. That is a function in contrast to representation in a court proceeding by a solicitor. The availability of the SPER process is also not a proper ground for a refusal to award professional costs, because s 72 of the Act and s 16 of SPERA preserve the entitlement of the appellant to elect to recover the parking fee by court proceedings and through representation by a lawyer.

29. [29]
    I agree with the submission of the appellant concerning inconsistency between the award of court costs on the basis of their having been incurred and the refusal of professional costs, in the absence of evidence that they had not been incurred. On the face of the material before me they plainly had been incurred. There was no proper basis for the refusal to make an order for the professional costs.

30. [30]
    In order for there to be a proper refusal to order payment of professional costs there would have to be some disentitling conduct on the part of the appellant. There is no evidence of such conduct in this case.

31. [31]
    In my view the learned Magistrate took into account irrelevant and inappropriate reasons for her refusal to order professional costs. Her Honour did not properly exercise her discretion as to professional costs. She was in error and her exercise of discretion has miscarried. Her Honour was wrong as a matter of law to proceed as she did in refusing the application for an order for professional costs.

32. [32]
    In my view the basic premise of s 157 of the Act has not been limited by the enactment of s 158A of the Act. The latter provides a list of matters that may be relevant to the exercise of the discretion to award professional costs and refers to matters that may disentitle the party seeking such an order from an order being made in its favour. However, her Honour did not seek to support her refusal on the basis of s 157A. Section 158B is relevant to quantum (for example, what is ‘just and reasonable’) and the discretion as to that issue.

33. [33]
    In Latoudis v Casey (supra) Mason CJ stated (at pp542-543):

“If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”

34. [34]
    McHugh J stated (at pp566-567):

“The rationale of the [costs] order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred.”

35. [35]
    In this case the ‘cause’ is not directed to the election of the appellant to proceed by way of complaint. It is the Respondent’s failure to pay the parking fee on the infringement notice and upon the reminder notice which the appellant issued, without compulsion and as an administrative measure perhaps to avoid further proceedings, it seems, and sent to the appellant.

36. [36]
    That principle has received further recent support in Coulter v Ryan (2006) QCA 567 (paragraphs 29 and 30.)

37. [37]
    Section 3 of schedule 2 of the Regulation concerns the quantum of professional costs only. A party may wish to pursue investigations or obtain reports or obtain, for example, expert reports that are not intended to be used in litigation or in respect of any complaint that is subsequently dealt with by a Magistrates Court. There may be, as Mr Bain QC submitted, good reason for the decision to do those things, perhaps to provide some comfort to the party in its pursuit of the proceedings or as a matter of over-caution, although not necessary otherwise and in those circumstances it might be appropriate not to award the costs of those investigations or reports. I agree that the Regulation and S158B do not impact upon the discretion to award costs per se but are only relevant to the quantum of such costs as may be awarded.

38. [38]
    The legislature has not constrained the award of professional costs in respect of an election to recover payment of an infringement notice by court proceedings. There was no evidence before her Honour which in my view could have supported an exercise of discretion to refuse the applicant its professional costs. There was no dispute on the evidence that they had in fact been incurred. Further it is, at least, implied in the statements of her Honour that she viewed professional costs as being punitive rather than compensatory in the circumstances of this complaint. If that implication is correct, it is contrary to law.

 Quantum of Professional Costs

39. [39]
    The issue of quantum was raised in the outline of submissions filed by the respondent. The appellant, which had not addressed this issue in its outline, did so by way of oral submission and by the tendering of Exhibit 1 which was a report of the Financial Management Research Centre dated 3 April 1991 concerning legal practice charge rates, amongst other things.

40. [40]
    In the course of the hearing any issue about the quantum of the professional costs that been sought below by the appellant, namely $75 in respect of each matter, was effectively abandoned by the respondent. That seems to me to have been the proper course to take because the quantum sought by the appellant was objectively neither excessive nor inappropriate. For that reason I do not need to consider that issue further.

Other Appeals

41. [41]
    Judgment in this appeal will not only determine this appeal, but will also determine the outcome on the same point in another 126 appeals. All 127 appeals were dealt with on the same day and were subject to the same refusal by her Honour to award the professional costs (in each case $75) sought by the appellant.

Appeals against Exercise of discretion

42. [42]
    In House v R (1936) 55 CLR 504 (at p505), Dixon, Evatt and McTiernan JJ stated:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

43. [43]
    In my view the learned magistrate erred in refusing to order professional costs. I will therefore vary her order/decision and in lieu thereof and in the exercise of my discretion order professional costs.

Costs of the Appeal

44. [44]
    The appellant and the respondent have agreed that in the circumstances of this appeal, this case being determinative of a large number of other appeals, the complainant if successful on the appeal will not seek costs of the appeal.

Orders

1. Appeal allowed.

2. Vary the order/decision of the Magistrates Court made on 07 August 2008 by setting aside the refusal to award professional costs and in lieu thereof order the respondent to pay to the appellant the sum of $75.00 professional costs.

3. No order as to costs.