Merrin v Commissioner of Police
[2011] QDC 289
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- Unreported Judgment
- Merrin v Commissioner of Police[2011] QDC 289
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Merrin v Commissioner of Police[2011] QDC 289
Merrin v Commissioner of Police[2011] QDC 289
DISTRICT COURT OF QUEENSLAND
CITATION: | Merrin v Commissioner of Police [2011] QDC 289 |
PARTIES: | ANNETTE ELIZABETH MERRIN (Appellant) v COMMISSIONER OF QUEENSLAND POLICE SERVICE (Respondent) THOMAS WILLIAM MERRIN (Appellant) v COMMISSIONER OF QUEENSLAND POLICE SERVICE |
FILE NO/S: | 100 of 2011 101 of 2011 |
DIVISION: | Appellate |
PROCEEDING: | Appeals pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | District Court, Cairns |
DELIVERED ON: | 30 November 2011 |
DELIVERED AT: | Cairns |
HEARING DATE: | 23 November 2011 |
JUDGE: | Everson DCJ |
ORDER: | Appeals dismissed |
CATCHWORDS: | APPEAL – CRIMINAL LAW AND PROCEDURE – costs awarded to unrepresented appellants pursuant to section 158A Justices Act 1886 – whether travelling and accommodation expenses can be awarded Justices Act 1886, s 158A, s 222, s 224 Justices Regulation 2004, schedule 2, part 3 Cachia v Hanes (1994) 179 CLR 403 Commissioner of the Police Service v Merrin [2002] QCA 480 Worchild v Peterson (No.2) [2007] QDC 159 Worchild v Peterson [2008] QCA 26 |
COUNSEL: | C. Heffner for the respondent |
SOLICITORS: | No appearance for the appellants Queensland Police Service for the respondent |
- [1]These are identical appeals pursuant to s 222 of the Justices Act 1886 (“JA”) arising from the decision of a Magistrate sitting at Innisfail on 15 April 2011.
- [2]Although both appellants have sought to raise issues related to alleged police misconduct and compensation for it, these are not properly the subject of an appeal pursuant to s 222 of the JA and I will disregard them. The remaining issue for determination is whether the learned Magistrate should have awarded costs to the unrepresented appellants extending to travelling and accommodation expenses, in circumstances where she dismissed the summary charges brought against each appellant.
- [3]The learned Magistrate exercised her discretion award costs to the appellants pursuant to s 158A of the JA but limited the award to filing fees and other court fees incurred by the appellants. She indicated that she felt constrained by authority to limit the award of costs to this extent and that otherwise she would have also awarded “travelling costs”. The appellants did not give or call evidence and the question of witness expenses did not arise.
- [4]The appellants elected not to appear on the hearing of their appeals, however as the only proper issue before me involves a question of law alone, I am content to determine the appeals having regard to their outlines of argument and the other material they have filed.[1]
- [5]To determine what costs are properly the subject of a costs order pursuant to s 158A it is necessary to consult the scale of costs set out in Schedule 2 of the Justices Regulation 2004 (“JR”).[2] Relevantly Part 3, s 5 of the JR provides:
“Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as an advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.”
- [6]The Court of Appeal was called upon to interpret the practically identical provision of the Justices Regulation 1993 in an appeal, ironically involving the male appellant before me in Commissioner of the Police Service v Merrin.[3] In delivering the judgment of the Court with which the other presiding judges agreed, McPherson JA considered that the provision before him, namely Schedule 2, Part 3, s 1 of the Justices Regulation 1993 ought to be given a wide operation. His honour stated:
“On one reading of this provision, it might be thought to be confined to the persons specifically stated in it; but it is not expressly so restricted and, I consider, must be given a wider operation.”[4]
On this basis travelling expenses which had been awarded to the unrepresented appellant in the court below were upheld and increased by the Court of Appeal.
- [7]Authorities which suggested that travelling expenses should not be the subject of an award of costs to a litigant in person were not placed before the Court of Appeal in Merrin. The relevant authorities were extensively reviewed and applied by the High Court of Australia less than two years later in Cachia v Hanes.[5] The High Court confirmed that, in circumstances where costs are not to be regarded as a total indemnity to a successful litigant, a litigant in person was not entitled to travelling expenses in addition to what he would have been entitled to as a witness fee.[6] Cachia v Hanes was applied by the District Court to the issue of quantification of costs pursuant to s 158A of the JA in Worchild v Peterson (No.2)[7] with the result that the award of costs did not extend to travelling expenses of an unrepresented litigant but was restricted to filing fees and other court fees which had been paid. Subsequently, the Court of Appeal confirmed the decision below, relevantly stating:
“The applicant has not identified any error in the learned District Court Judge’s reasoning. Nothing in the record suggests that there are any other defects in the District Court Judge’s approach of a kind that would result in the exercise of discretion being challengeable.”[8]
- [8]Curiously, the Court of Appeal was not referred to Commissioner of the Police Service v Merrin in the course of the appeal in Worchild v Peterson. It is clear however that the reasoning in Merrin so far as it relates to the appellants’ claims for travelling expenses, is inconsistent with the High Court decision in Cachia v Hanes as applied in the subsequent decisions referred to above. Merrin is therefore not good law in this regard and should not be followed.
- [9]It follows that the learned Magistrate was entirely correct to restrict her award of costs in the manner she did.
- [10]I therefore dismiss the appeals.