Dixonbuild Pty Ltd v Ipswich City Council (No. 2)
[2011] QDC 202
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- Unreported Judgment
- Appeal Determined (QCA)
- Dixonbuild Pty Ltd v Ipswich City Council (No. 2)[2011] QDC 202
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Dixonbuild Pty Ltd v Ipswich City Council (No. 2)[2011] QDC 202
Dixonbuild Pty Ltd v Ipswich City Council (No. 2)[2011] QDC 202
DISTRICT COURT OF QUEENSLAND
CITATION: | Dixonbuild P/L v Ipswich City Council (No. 2) [2011] QDC 202 |
PARTIES: | DIXONBUILD PTY LTD (Appellant) -v- IPSWICH CITY COUNCIL (Respondent) |
FILE NO/S: | 2906/2010 |
DIVISION: | Appeal |
PROCEEDING: | Appeal to District Court |
ORIGINATING COURT: | Magistrates Court, Ipswich |
DELIVERED ON: | 8 September 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
ORDERS: |
|
CATCHWORDS: | Appeal – costs of trial and appeal Justices Act 1886, ss 4, 158, 158A, 158B, 159, 226, 232, 232A Justices Regulation 1993 Justices Regulation 2004, s 18, Schedule 2 Allianz Australia Insurance Ltd v Swainson [2011] QCA 179 Dixonbuild P/L v Ipswich City Council [2011] QDC 185 Latoudis v Casey (1990) 170 CLR 534 MacPherson v Commissioner of Taxation [1998] QCA 296 Murray v Radford [2003] QCA 91 Schaftenaar v Samuels (1975) 11 SASR 266 Smith v Ash [2010] QCA 112 |
Background
- [1]On 31 August 2011 I made orders allowing for the appeal in this proceeding, setting aside the appealed orders and dismissing the relevant complaint (Complaint B).
- [2]In addition, I gave liberty to both parties to file written submissions on further orders and costs by 4 pm on 2 September 2011. Both parties have filed written submissions on costs.
Submissions
- [3]It must be said, at the outset, that the submissions on costs have been either of little utility or, with respect, misdirected. In particular, since this is not a civil appeal from the Magistrates Court, the costs are dealt with s 226 (as qualified) of the Justices Act 1886 (“JA”). Additionally, the costs below are dealt with pursuant to s 158 (as qualified) of the JA. Since s 158A of the JA is limited to dismissal of a complaint where the Court gives consideration to an order for costs in favour of a defendant against a specified complainant (namely, “who is a police officer or public officer”), given the conclusions that I have reached in the decision of Dixonbuild P/L v Ipswich City Council [2011] QDC 185 – from which it is absolutely clear that the actual complainant brought the relevant complaint in “his” own name (see [30]) and that, in such circumstances, the respondent sought no amendment (see [36]) – and given the definition of “public officer” in s 4 of the JA, it is patently obvious that even though the complainant was in fact “an officer or employee of a local government”, he was not “acting in an official capacity”.
Costs at trial
- [4]By s 158(1) of the JA, when there is a dismissal of a complaint, the order for dismissal may include an order “that the complainant shall pay to the defendant such costs as to (the magistrate) seem(s) just and reasonable” (emphasis added).
- [5]The term “just and reasonable” is picked up in s 158B of the JA, thereby qualifying s 158. By sub-section (1) it states that, in deciding the costs that are just and reasonable for the Division containing s 158(1), the magistrate may award costs “only”-
- for an item allowed for Division 8 under a scale of costs prescribed under a regulation; and
- up to the amount allowed for that item under the scale.
- [6]There is however an additional provision. By s 158B(2), the magistrate may allow a higher amount for costs if “satisfied” that the higher amount is just and reasonable “having regard to the special difficulty, complexity or importance of the case”.
- [7]My attention was directed to s 158A by the respondent, who was the unsuccessful (by reason of the orders made on appeal) complainant. Since s 158A does not apply, the factors set out in s 158A(2) become irrelevant except as general issues in determining what costs should be awarded at first instance: see, for instance, the comments by McPherson JA, expressing the obiter view of the Court of Appeal in MacPherson v Commissioner of Taxation [1998] QCA 296 at [14]. Furthermore, there is nothing in principle or logic which commands that, even if the complainant is not to be found to be a “public officer”, the fact that the prosecution was bought in a public interest makes the considerations identified in s 158A proper and relevant considerations: see MacPherson, for instance, at [8].
- [8]Rather, the approach which ought to be adopted is that canvassed by Chesterman JA in Smith v Ash [2010] QCA 112. Although in dissent on the major issue, it is clear that Fraser JA concurred in the remarks as to this issue with him. Chesterman JA held that, though costs in summary criminal proceedings do not follow the event as they do in civil proceedings, a successful defendant in summary proceedings “has a reasonable expectation of obtaining an order for payment” of costs “because it is just and reasonable that the informant should reimburse him for his liability to pay costs which have been incurred in defending the prosecution”, referring to Latoudis v Casey (1990) 170 CLR 534 at 569: at [100]. See, also, Allianz Australia Insurance Ltd v Swainson [2011] QCA 179 at [4] – [5]; and MacPherson at [19].
- [9]In Smith, Chesterman JA, in an exposition of relevant principle, referenced Schaftenaar v Samuels (1975) 11 SASR 266: at [102]. There, Wells J (at 274-275) identified the circumstances which courts of summary jurisdiction might consider when making orders for costs, including that:
- the discretion must be judicially exercised;
- in the exercise of the discretion, there is no question of onus;
- the successful party has, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs; and
- the court should not, however, exercise the discretion against the successful party “except for some reason connected with the case”.
- [10]In Smith, it was unnecessary to consider the effect of s 158B of the JA.
- [11]Accordingly, I see nothing in the conduct by the appellant at first instance which commends to me, pursuant to the principles that I have canvassed, an outcome other than the defendant at first instance ought be allowed to have its costs, particularly where all 3 complaints have, in effect, been dismissed.
- [12]In reaching that decision, I have, as contended for by the respondent, noted part of the transcript at first instance (T: 2 - 2.9) where the learned Magistrate stated that he did not intend to make an order for costs in respect of the defendant – although the defendant had succeeded on 2 of the 3 complaints which were heard before him – “considering the comments I’ve made in respect of the attitude of the defendant”. The detail of those comments is then noted by the respondent to the appeal: at paragraph [17] of its submissions. But such identifiable comments concerning “attitude” are entirely irrelevant given the reversed outcome on appeal.
- [13]The problem that I do have, though, in making an order is that the appellant has not taken the opportunity to inform the court as to what items under Schedule 2 of the Justices Regulation 2004, pursuant to s 18, should be allowed, particularly bearing in mind that there was no appeal against the dismissal of an instanter application for costs by the appellant (then the defendant) for the dismissal of the other two complaints. Additionally, the appellant passed up the opportunity to address me on whether s 158B(2) of the JA should be considered. Accordingly, doing the best I can in the circumstances and on the information given to me, with respect to Complaint B, in accordance with s 159 of the JA, I specify that the defendant’s costs on the order for dismissal of Complaint B against the complainant in person are fixed at $1,750.00: see Part 2 (which is the only Part of Schedule 2 for which even the limited evidence that I have can be utilised). I am not minded to seek yet further submissions, particularly where it is possible to take the view that the power under s 158(1) of the JA to award costs is required to form part of the order for dismissal itself: see MacPherson at [14].
Costs on appeal
- [14]As indicated above, the costs on appeal are primarily governed by s 226 of the JA. That provision states that a judge may make such order as to costs to be paid by either party “as the judge may think just” (emphasis added).
- [15]In deciding the costs that are “just” for the relevant Division in which s 226 appears, s 232A(1) of the JA qualifies that provision, stating that the judge may award costs “only”:
- for an item allowed for Division 1 under a scale of costs prescribed under a regulation; and
- up to the amount allowed for the item under the scale.
- [16]By s 232A(2) of the JA the Judge may, however, allow a higher amount for costs if the Judge is “satisfied” that the higher amount is just “having regard to the special difficulty, complexity or importance of the appeal.” Stripped of the issue of “standing” (which the appellant lost), especially in the absence of relevant submissions on costs, I can see no reason to find such factors existed.
- [17]The respondent to the appeal merely submits that, apart from the costs below, “there otherwise be no order as to costs”. Since the appellant has been successful on the primary issue of overturning the remaining conviction, I do not accept that that is the appropriate order: see – though discussed earlier for a different consideration – Allianz at [4].
- [18]For its part, the appellant contended that costs should be its costs “on the standard basis to be assessed”. Quite obviously, that is not the correct basis. But I am just a little perplexed by obiter comments concerning s 226 of the JA in Murray v Radford [2003] QCA 91. Davies JA, with whom Jerrard JA and Mackenzie J (generally) agreed, remarked that the “very wide discretion conferred by” s 226 appeared to encompass an order that costs “be assessed unless otherwise agreed”, observing that he found it difficult to see how such width might be “cut down” by a schedule, such as Schedule 2 of the Justices Regulation 1993 “purports to do”: at folio 5. There was no concurrent consideration of s 232A – which was inserted in 1997 – as potentially providing the enabling power for the “cutting down” by Schedule 2 (which, for relevant purposes, is the same as Schedule 2 in the current Regulations). Interestingly, Mackenzie J retained some doubts, stating that the matter “remains yet to be resolved after full argument if the case arises”: at folio 6.
- [19]Again, because I have not been assisted at all in what are the relevant appropriate items under Schedule 2 of the Justices Regulation – while I do take note of s 4 of Schedule 2 that, for an appeal to a District Court judge under Part 9, Division 1 of the JA, the amount up to which costs may be allowed for legal professional work is the amount that may be allowed under Part 2 as if the work were “for” a complaint, “increased by 20%” – on the limited information available to me I am, as before, restricted to making an award of costs of $2,100.00 (noting that there was a court attendance for the handing down of the decision on appeal). Section 232(1) of the JA requires certain details to be included in any order made as to the costs of appeal.
Orders
- [20]For the reasons analysed above, the orders I intend to make are:
- the respondent pay the appellant’s costs of the trial, fixed in the sum of $1,750.00;
- the respondent pay the appellant’s costs of the appeal, fixed in the sum of $2,100.00; and
- the costs of the appeal are to be paid to the Registrar to be paid over to the appellant within 30 days from the date of these orders.