Scanlon v Queensland Police Service
[2011] QDC 236
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- Unreported Judgment
- Scanlon v Queensland Police Service[2011] QDC 236
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Scanlon v Queensland Police Service[2011] QDC 236
Scanlon v Queensland Police Service[2011] QDC 236
DISTRICT COURT OF QUEENSLAND
CITATION: | Scanlon v Queensland Police Service [2011] QDC 236 |
PARTIES: | JOHN SIMON SCANLON (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | Appeal D2/10 |
DIVISION: | Appeals |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 10 October 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written Submissions to 6 October 2011 |
JUDGE: | Andrews SC, DCJ |
ORDER: | Order that the appellant pay $1,800 costs to be paid to the Registrar at Brisbane of the District Court of Queensland to be paid to the respondent within twelve months of today. |
CATCHWORDS: | COSTS OF APPEAL – Justices Act s 222 appeal – where appellant unsuccessful – whether costs should follow the event – whether respondent’s failure to agree to change of venue was conduct disentitling it to costs – where respondent’s submissions unhelpful – whether unhelpfulness of the respondent’s submissions disentitled it to costs – where appellant had arguable appeal point – whether the appellant’s arguable point was sufficient basis to make no order as to costs – whether there is a practice in appeals from decisions involving a charge of public nuisance to make no order as to costs – whether there is a public interest basis to make no order as to costs of appeals from convictions for minor charges – whether costs should be assessedJustices Act 1886 s 222, s 226, s 232 and s 232A Justices Regulation 2004 (Qld) Schedule 2 Part 2, Schedule 2 s 3 Latoudis v Casey (1990) 170 CLR 534 Yanner v Eaton [1999] HCA 69; (1999) 168 ALR 1 |
COUNSEL: | |
SOLICITORS: | Robinson and Robinson Lawyers for the Appellant C A Bradley, Queensland Police Service Solicitor for the Respondent |
- [1]The appellant, Mr Scanlon, was convicted of one count of public nuisance in the Longreach Magistrates Court on 25 August 2010. The public nuisance arose from his use of indecent language to two police officers in the earshot of members of the public in a public place. Mr Scanlon was fined $450 and no conviction was recorded. Mr Scanlon admitted the use of the language but denied an offence on several bases. One basis involved a question of principle. Essentially it was that in the circumstances in which he spoke to police officers his use of admitted language was not obscene. He appealed pursuant to s 222 of the Justices Act 1886 to the District Court of Queensland. The hearing was on 19 and 20 September 2011. The decision was handed down on 20 September 2011 and Mr Scanlon was unsuccessful in his appeal.
- [2]
- [3]The Justices Act s 226 applies. It provides:
“226 Costs
The Judge may make such order as to costs to be paid by either party as the Judge may think just.”
- [4]The Justices Act s 226 gives the Court a discretion to order costs “as the Judge may think just.” That discretion must be exercised judicially.[3]Costs are not to be awarded by way of punishment of the unsuccessful Mr Scanlon. If costs are awarded they are to compensate, to indemnify the successful party against its cost of successfully resisting the appeal.
- [5]What matters are raised by the parties as relevant to the issue of a just exercise of the discretion?
- [6]Has there been conduct of the QPS disentitling it to costs?
- [7]There is conduct of the QPS relied upon by Mr Scanlon’s solicitor, Ms Warwyk as disentitling the QPS to costs. That conduct is submitted to be the indication by the QPS that if an application to transfer the appeal hearing from the Longreach District Court to the Southport District Court was made by Mr Scanlon, it would be opposed. Mr Scanlon did not make an application to court for change of venue to Southport. Mr Scanlon also tried to persuade the DPP in Rockhampton to agree to a transfer to the District Court in Rockhampton to secure an earlier hearing. The request was originally opposed on the basis that if witnesses were to be called then it would be cheaper to recall them in Longreach. Ultimately, the respondent called no witnesses. The submission does not expressly identify why the refusals to change venue are misconduct or why the refusals otherwise amount to conduct relevant to costs. The matter was eventually transferred to Brisbane.
- [8]It may have been determined sooner if a change of venue had been agreed to by the DPP or the QPS. It is not explained for Mr Scanlon why the delay has a bearing on costs. The hearing may have been delayed but costs were not increased by refusals to agree to two proposed changes of venue.
- [9]The contents of the written and oral submissions of the QPS are raised by Mr Scanlon’s advocate as a disentitling feature. It is submitted that the submissions for the QPS made little reference to Mr Scanlon’s case law and materials. I accept that submission. The submissions for Mr Scanlon put into writing were in two parts. The first was presumably prepared by Mr Scanlon. It was not helpful. It would have been confusing for the QPS or any reader who tried to assess the grounds and merits of the appeal. A subsequent written submission was prepared by Ms Warwyk, including fresh grounds of appeal and is the product of considerable research, analysis and industry. I would have been assisted if the QPS in written or oral submissions had been more responsive to the subsequent written submissions and altered grounds of appeal from Ms Warwyk. However, one reason for the unresponsiveness of the written submissions of the QPS is that the written submissions of the QPS were in response to the first written outline which Mr Scanlon filed. Mr Scanlon’s first submissions were of so little use that they were not relied upon for him at the hearing of the appeal. The second outline prepared by Ms Warwyk was a helpful document. It was late. I accept that it was not responded to in writing and accept that it received little reference in the oral submissions for the QPS. I do not regard the unresponsiveness of the submissions of the QPS to the second written outline as conduct disentitling the QPS to costs. The unresponsiveness of the submissions of the QPS may have relevance to the quantum of costs. It was not submitted against the QPS that its conduct prolonged the hearing or increased the costs of the QPS or of Mr Scanlon. Its conduct did not. It simply made the task of the appeal judge more difficult because there was no effective reply to the extensive submissions for Mr Scanlon.
- [10]I proceed on the basis that nothing about the conduct of the QPS is disentitling. The conduct of the QPS was accommodating at the time of the hearing. It consented to a significantly expanded list of appeal grounds, quite different from those in the notice of appeal. It did not oppose the addition of an oral ground raised during submissions for Mr Scanlon. The conduct of the QPS by withholding an objection to late grounds of appeal and late written submissions meant that more solid grounds of appeal and arguments could be raised for Mr Scanlon shortly before and during the hearing of the appeal. It meant that Mr Scanlon’s appeal could be heard without the inconvenience of further delay. The QPS had arguable grounds for requesting an adjournment to consider the new and late grounds of appeal and the supporting arguments. Because the QPS took no objection, Mr Scanlon was not put at the risk of further delay.
- [11]Was the appellants arguable point a reason to make no order against him for costs?
- [12]It was submitted for Mr Scanlon that it is relevant that he appealed against conviction only and not also against sentence. That submission was not elaborated upon. Perhaps it implies that the appeal was responsibly brought because it raised an arguable point of mixed fact and law and that the appeal can be contrasted with appeals without an arguable point. If that implication was intended then I accept it applies in this case. There was an arguable point. However, in many proceedings which reach appeal stage the unsuccessful party has an arguable case and often the unsuccessful party has acted reasonably in litigating to appeal hearing. Commonly, awards of costs are made to the successful party notwithstanding that there has been reasonable conduct by the losing party.
- [13]Do costs not follow the event?
- [14]Ms Warwyk submits that costs do not follow the event, but rather, are a matter for the discretion of the Court. I accept that costs need not follow the event. The wording of Justices Act s 226 allows for an order which is just and a just order will not always be an order that costs follow the event. In considering how to exercise the discretion, in the absence of disentitling conduct by the QPS, the fact that the QPS won the event is very relevant matter. I will consider it when I exercise the discretion to make such order as to costs as I may think just.
- [15]Is there a practice that costs of appeals from decisions involving a charge of public nuisance are not awarded?
- [16]Ms Warwyk referred me to the reasons in twelve cases relating to appeals from decisions involving a charge of public nuisance. She submitted that the cases show that costs are very rarely awarded against the losing party. An extract from her submission follows:
- Dowling v Robinson [2005] QDC 171: Judge Robin QC awarded costs against the unsuccessful, self-represented accused as he considered the appeal to be ‘tantamount to an abuse of process by Mr Dowling’. The amount of costs were ordered at $500.00 with an unlimited period of time to pay.
- Butterworth v Geddes [2005] QDC 333: Appellant’s appeal against public nuisance conviction was unsuccessful. Forde DCJ made no order as to costs.
- Couchy v Birchley [2005] QDC 334: Appellant’s appeal against public nuisance conviction was successful. McGill DCJ made no order as to costs.
- Green v Ashton [2005] QDC 008: Appellant’s appeal against public nuisance conviction was unsuccessful. Skoien DCJ made no order as to costs.
- Kris v Tramacchi [2006] QDC 035: Appellant’s appeal against public nuisance conviction was unsuccessful. Forde DCJ made no order as to costs.
- Madsen v Queensland Police Service [2006] QDC 505: Appellant’s appeal against public nuisance conviction was unsuccessful. Forde DCJ made no order as to costs.
- Andrews v Rocklea [2008] QDC 104: Appellant’s appeal against public nuisance conviction was unsuccessful. Rackemann DCJ made no order as to costs.
- Courtney v Peacock [2008] QDC 87: The Appellant’s appeal against public nuisance conviction was successful. Nase DCJ made no order as to costs.
- Lucas v Casson [2008] QDC 163: Appellant’s appeal against public nuisance conviction was unsuccessful. Forde DCJ made no order as to costs.
- In Bee v Ziebarth [2009] QDC 297, the Appellant was found guilty of public nuisance by the Magistrates Court. The Magistrates Court made an order for costs against the Appellant citing the principle that ‘costs follow the event’. The Appellant appealed against the costs order and the Respondent conceded the appeal. Devereaux SC DCJ allowed the appeal saying at pages 2 to 3:
“If the Magistrate was of the view that costs ordinarily follow the event, and if that view led to the order in this case, that view was wrong. Any such view was gainsaid by the High Court in Latoudis v Casey.”
- Atkinson v Gibson [2010] QDC 10: the Appellant’ appealed against the Respondent being acquitted of public nuisance and having a costs order made against him at the Magistrates Court. The appeal was unsuccessful. Bradley DCJ made no order as to costs.
- House v Queensland Police Service [2010] QDC 538: The Appellant’s appeal against conviction was successful and the matter was remitted back to the Magistrates Court for rehearing. Harrison DCJ found that there was possible misconduct on behalf of the police prosecution and referred the matter the Crime and Misconduct Commission. There was no order as to costs.
- [17]Analysis of the published reasons at those references leads me to reject the submission. They are not authority for principles relating to costs of appeals. They are weak evidence of any trend. If anything, the few occasions where costs were raised were occasions which contradict a trend to make no order. They contain little or no analysis of the appropriateness of orders for costs against unsuccessful parties to appeals. In Dowling v Robinson [2005] QDC 171 costs were awarded against the losing party. In the reasons for cases numbered 2, 4, 5, 6, 7, 8, 9 and 11 there was no mention of appeal costs and no indication as to whether costs were sought after delivery of the reasons. For case 3, the submission is not correct that the reasons suggest no order was made as to costs. His Honour observed that he would hear the parties as to costs of the appeal. In case 10 costs of the appeal were reserved. The passage quoted from case 10 has to do with costs before the magistrate and is not concerned with costs of the appeal. In case 12 the appellant appeared in person. There was no indication as to whether costs were sought after delivery of the reasons. There would have been no legal costs to award to the successful litigant in person, save perhaps if there was a filing fee for a notice of appeal.
- [18]I am not persuaded by the cases cited that there is a rule or practice which governs or relates to the exercise of the discretion provided for at Justices Act s 226 to order costs in the case of an appeal from a conviction for public nuisance.
- [19]Is it against public interest to make costs orders in appeals related to public nuisance?
- [20]Ms Warwyk submitted that if costs are awarded against Mr Scanlon it would also have public interest implications as it would possibly discourage future appellants from similarly challenging minor charges. It was not suggested expressly that the appeal was a matter of public interest. If that was intended, I note that in Yanner v Eaton [1999] HCA 69; (1999) 168 ALR 1 it was observed in a joint judgment of the full bench of the High Court that costs of the unsuccessful appeal to the Court of Appeal and of the successful appeal to the High Court should follow the event in the High Court, and that the importance of the point which the respondent maintained should not change the order for costs against the respondent.
- [21]The fact that an appellant may be discouraged from appealing from a conviction for a minor charge if the appellant anticipates that the appellant may be ordered to pay compensatory costs to the other party if the appeal is unsuccessful does have public interest implications. The implications were not explored in the submission. The reference in the submission to public interest makes the submission appear superficially to have a moral force. The implications are many and are both positive and negative for the appellant. It is unfortunate if meritorious appeals will not be brought because an appellant fears an order for costs if the appeal fails. It is fortunate that successful respondents are not left to pay the legal costs of successfully defending appeals and especially where the appeal is instigated by another. The fact that appellants may be concerned about orders for costs when considering whether to appeal from convictions for minor matters does not persuade me that successful respondents must pay their own legal costs as a general rule or that the QPS should be refused its costs in this case.
- [22]It is submitted for the QPS that Mr Scanlon was put on notice that costs would be sought from him. That was not refuted in the supplementary submissions on costs subsequently supplied for Mr Scanlon. The notice to Mr Scanlon was apparently at the time that the QPS provided its outline of argument. I accept the submission of the QPS that it has been put to expense responding to the appeal and that it is just that it be awarded compensatory costs sufficient to indemnify it against the expense to which it has been put.
Quantum of costs, assessment and time to pay
- [23]Justices Act s 232A provides so far as is relevant:
“232ACosts for Division
- (1)In deciding the costs that are just for this division, the Judge 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 …”
There is provision in the section to allow a higher amount but it is not sought by the QPS in this case.
- [24]There was argument raised for Mr Scanlon about quantum and time to pay and whether there should be assessment of costs.
- [25]There is no contest that the court might award up to $1800 for instructions and preparation for the hearing, including attendance on the first day of hearing. That follows from Justices Regulation 2004 Schedule 2 s 4 and Part 2. I find that the court can also award up to $1050 for the second day’s hearing.
- [26]Though the hearing was conducted over two days the QPS seeks an amount in accordance with the scale of costs prescribed under the relevant regulation for a hearing of only one day in an amount of $1,800. Pursuant to section 3, schedule 2 of the Justices Regulation 2004 (Qld) a cost is to be allowed only to the extent to which the incurring of the cost was necessary or proper to achieve justice or to defend the rights of the party or was not incurred by overcaution, negligence, mistake or merely at the wish of the party. The cost of responding to the appeal was prima facie necessary or proper to achieve justice or to defend the rights of the QPS.
- [27]Ms Warwyk submitted that the QPS has not provided any evidence as to how an order for costs of $1,800.00 would be justified pursuant to section 3, schedule 2 of the Justices Regulation 2004 (Qld). The submission was not explained. Schedule 2 at section 3 provides:
3 Only necessary or proper costs may be allowed
A cost is to be allowed only to the extent to which—
(a)incurring the cost was necessary or proper to achieve justice or to 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.
- [28]The costs sought by QPS meet the description in Schedule 2 Part 2 of Justices Regulation 2004:
Work for hearing of complaint up to and including day 1
1 Instructions and preparation for the hearing,
including attendance on day 1 of the hearing. . . . . . . up to $...
After day 1
2 For each day of the hearing after day 1 . . . . . . . . . . . up to $...
- [29]There was a written outline for the QPS in response to the first abandoned outline from Mr Scanlon; counsel appeared for the QPS instructed by an officer of the DPP for two days of hearing, and made oral submissions at the hearing. The QPS provided written submissions on costs. These matters persuade me that there were legal services performed for QPS and that the services meet the description “instructions” and the description “preparation for hearing” and “attendance on day 1 of the hearing” and for a “day of the hearing after day 1”. At [11] above I explained why the written submissions for the QPS were unhelpful. The reason for that cannot be attributed to the QPS. The fact that the QPS seeks only $1800 and does not seek a further $1050 for the second day of the hearing and does not seek anything for written submissions on costs is relevant to my assessment of whether the $1800 it seeks is just. I assess that it is a just amount having regard to the description in the schedule of legal works.[4]The work done for the QPS complies with the description in the schedule. The QPS was entitled to seek $1800 to the end of the first day’s hearing and another $1050 according to the schedule, for the second day.
- [30]Ms Warwyk submits there should be no order as to costs but that if the Court be minded to award a sum of costs against Mr Scanlon despite her submission, costs should be assessed to ensure that all costs were properly incurred. That assessment would add to expense. No submission was made that work meeting the description in Schedule 2 Part 2 was not done for the QPS. Rather there was a submission that less than $1800 is just having regard to disentitling conduct of the QPS. I have rejected the submission of disentitling conduct. I refuse the application that costs should be assessed.
- [31]I find $1800 to be a just amount to award by way of costs.
- [32]The order to be made is governed by Justices Act s 232 which provides, so far as is relevant:
“232Costs of Appeal
- (1)If upon any appeal the Judge orders either party to pay costs such order shall direct such costs to be paid to the Registrar to be paid over to the party entitled to the same and shall state within what time such costs are to be paid.”
- [33]Mr Scanlon is an apprentice electrician with a mortgage, or so it is submitted. I act on that basis. In that circumstance I accept the submission for him that only two months to pay is oppressive. No alternative was suggested. I will allow twelve months.