Queensland Police Service v McCracken
[2011] QDC 305
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- Unreported Judgment
- Queensland Police Service v McCracken[2011] QDC 305
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Queensland Police Service v McCracken[2011] QDC 305
Queensland Police Service v McCracken[2011] QDC 305
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Police Service v McCracken [2011] QDC 305 |
PARTIES: | QUEENSLAND POLICER SERVICE (appellant) V LEIGH DAVID MCCRACKEN (respondent) |
FILE NO/S: | BD 6/2009 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Magistrates Courts, Emerald |
DELIVERED ON: | 13 December 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 February & 21 November 2011 |
JUDGE: | Ryrie DCJ |
ORDER: |
|
CATCHWORDS: | s 222 APPEAL – where the appellant appealed against an order of the Magistrate dismissing a summary charge against the respondent – where the appellant discontinued the appeal subsequently – where the appellant had agreed to pay the respondent’s costs of the appeal on the standard basis pursuant to the Justices Regulation 2004 – whether the respondent is entitled to recover costs over and above the amounts allowed for under the Regulation Justices Act 1886 (Qld), ss 222; 228A; 232 & 232A Justices Regulations 2004 (Qld), sch 2 Durrant v Gardner [2000] QDC 198, referred to Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169, considered Morton v Queensland Police Service [2009] QDC 233, considered Santosa v Guerin [2007] QDC 335, considered Sorensen v Animanto Pty Ltd [2008] QDC 219, considered |
COUNSEL: | Mr B.I McMillan for the appellant Mr M.E Johnson for the respondent |
SOLICITORS: | Queensland Police Service Solicitor for the appellant Murdoch Lawyers for the respondent |
- [1]This matter initially came on before me while sitting in the appellate jurisdiction of the District Court on 7th February 2011. The matter had been transferred from the Longreach District Court to Brisbane for hearing. The respondent was originally charged with Obstructing a Police Officer in the performance of the officer’s duties. That offence was then heard before an Emerald Magistrate by way of summary hearing. The charge was subsequently dismissed and the respondent was awarded costs. The appellant appealed against that decision (out of time) pursuant to s 222 of the Justices Act 1886 (the Act). After much discussion, an adjournment of the hearing of the appeal was allowed in order for the appellant to prepare further submissions and obtain further (new) evidence. A hearing date was then set for the 21st November 2011 in order that the application to extend time and the appeal proper (including any application to adduce any new evidence by leave) could be heard.
- [2]When this matter then came on before me for that purpose, Counsel for the appellant indicated that it intended to consent to having the appeal dismissed. He conceded that the court had not been told earlier (by filing a Notice of Discontinuance) of its’ intention, but that the respondent had been so advised in August, which was also evident in the correspondence dated 9th June 2011 to the respondent’s solicitors (IGD-1 affidavit Ian Gilbert Dempster sworn 18th November 2011). Both Counsel then informed me that they wished to be heard on the question of costs. I advised both Counsel that I thought I had already dealt with the question of costs on the 7th February 2011. I referred them to the transcript, in particular 1-41 and 1-42 where it was indicated that I had already made an order in respect to costs (which had also been noted on the File Order Sheet). Notwithstanding that fact, both Counsel nevertheless wanted to be heard on the question of costs, after they were unable to come to an agreement with respect to the quantum of costs that ought to be paid by the appellant to the respondent. Because no objection was taken by either party to that course, I acceded to the request made.
- [3]In short, Counsel for the respondent submitted that the costs of the appeal which ought to be paid by the appellant to the respondent should not be referable to the Justices Regulation 2004 (the Regulation) scale (Sch 2) as itemised. Rather, it should be calculated in accordance with the statement of costs annexed to the respondent solicitors’ affidavit sworn 10th November 2011, IGD-9. Counsel for the appellant, on the other hand, submitted that any costs ordered to be paid should only be those calculated in accordance with the Regulation as itemised.
- [4]In support of his submissions, Counsel for the respondent referred to, amongst other things, the following points on his client’s behalf:
- the fact that the Magistrate at 1st instance considered that costs should be awarded against the appellant because he found they had not continued the prosecution in good faith;
- the fact that another District Court Judge had earlier made a costs order over and above the Regulation’s Sch 2 itemised scale because he considered the matter involved some complexity (see 3rd December 2010 costs order and transcript)
- the fact that the appellant had always considered it was an appeal of importance at least to them and that it also was to his client at least up until 7th February 2011, when the appellant only at that stage gave an undertaking that they would not be pursuing the charge against the respondent even if they were successful on the appeal.
- the fact that the matter had been adjourned several times in order for the appellant to get its’ house in order (my words, not Counsel’s) and that his client had been put to considerable expense in the interim.
- the fact that the appellant did not even file its’ appeal ‘in time’ to this court
- the fact that indemnity costs were awarded in Morton v Queensland Police Service [2009] QDC 233 where even though the appeal was ultimately dismissed, the delay attributed by the respondent had caused the appellant significant expense.
- [5]If I understood the submissions made for the respondent correctly, Counsel says that those factors supported a conclusion that this matter fell within the ambit of subsection (2) of s 232A of the Justices Act, and as such, any order as to costs should include a higher amount being allowed (in line with the statement of costs annexed to the affidavit of Mr Dempster sworn 10th November 2011 (IGD-9) in the sum of $22,093.40).
- [6]Counsel for the appellant however submitted that any order made should only be as itemised in Sch 2 of s 232A the Regulations. Counsel submitted that the appeal did not fall within the ambit of subsection (2) of s 232A of the Justices Act because there was no ‘special difficulty, complexity or importance of the appeal’ per se to justify a higher amount being ordered (see Exhibit 1 for full written submissions by the appellant on this issue).
- [7]Having regard to the order which I had already made on the 7th February 2011 (that apparently was not readily understood by either party), I am of the view that the order which now ought to be made, particularly having regard to the submissions which have been made by both parties on this issue for my consideration, is that the appellant should pay the respondent the sum of $9550 inclusive of GST within 14 days. In arriving at that conclusion, I have taken into account the following considerations.
- [8]The starting point in any assessment of costs in respect of an appeal of this type is referable to the appropriate scale, namely Sch 2 of the Justices Regulation 2004 and not the District Court Scale.
- [9]A higher amount of costs should only be awarded where I am satisfied that the higher amount is just, having regard to the ‘special difficulty, complexity or importance of the appeal’ (subsection (2) of s 232A of the Act; see also Sorensen v Animanto Pty Ltd [2008] QDC 219). The case authorities which I was helpfully referred to by Counsel on this issue (Lucy v OCC Holdings P/L & Ors (No 2) [2008] 169; Morton and Sorenson) merely emphasises that point.
- [10]The discretion to award a higher amount of costs is not enlivened simply because the Regulation scale may well be inadequate insofar as costs on a party and party basis (Durrant v Gardner [2000] QDC 198). In other words, subsection (2) of s 232A the Act does not come into operation merely because it is necessary to award a higher amount in order to give an indemnity on a party and party basis to the respondent: see Judge McGill’s observation in this regard at para [45] in Durrant.
- [11]The fact that the Emerald magistrate had made a costs order at 1st instance (pursuant to s 158 of the Act) is of little moment particularly when one has regard to the relevant considerations set out in s 232A(2).
- [12]The authority of Morton which Counsel for the respondent referred to, can also be distinguished. In that case, Judge Durward noted that the appeal (my emphasis) was complex, novel and of importance and because the appellant had expended a significant sum in preparing a response to an affidavit which was subsequently not relied on in the appeal, s 232A considerations were evoked. In this matter however, it is significant to note that the only matter to be argued between the parties on the 21st November 2011 was the question of costs.
- [13]This matter has always however been of some importance to both parties (as conceded the appellant on 7th February 2011 (T1-33; T1-36)) and was at least of some real importance to the respondent at least up until that date. While it is true that any such importance to the respondent would have diminished after that date in light of the concessions made by the appellant (that it would no longer pursue the charge against the respondent even if successful), it was still important nevertheless. It is also of little moment now that the appellant says that the appeal is no longer of ‘importance’ to them as a result of its’ concession that the appeal should now be dismissed. That fact was only communicated formally to this Court on the 21st November 2011 notwithstanding that there was a procedure available to discontinue its’ appeal by notice (s 228A of the Act) regardless of the fact that it had communicated its’ intention to the respondent much earlier by correspondence.
- [14]While I do not personally consider that the matter would have involved any significant degree of complexity or special difficulty per se, unlike the matters ventilated in the various case authorities to which I was referred, I am still of the view nevertheless that the considerations which would have been raised during the hearing of this appeal would have required submissions on the legal interpretation of the Police Powers and Responsibilities Act 2000 and certain provisions, which in my mind at least, would have justified and necessitated the assistance of Counsel. That is to say, the matter was of sufficient complexity and importance to justify an award above the scale amount being awarded. That fact is particularly so in light of the ‘changed’ position that was to be argued on the appeal as foreshadowed by Counsel for appellant on the 7th February 2011, which was a different position to that which had in fact been argued at 1st instance by the appellant before the magistrate regarding the validity or otherwise of the Instrument of Approval which had been signed by the relevant Commissioner of the Police.
- [15]Accordingly, I am of the view that this matter does justify an award of costs in a higher amount, having regard particularly to the relevant considerations set out in subsection (2) of s 232A of the Act, the Statement of Costs provided by the respondent and because of the reasons I have just outlined.
- [16]I therefore make the following orders:
- I grant the extension of time within which to appeal but dismiss the appeal.
- I revoke the costs order made by me 7th February 2011 and order that the appellant pay the respondent’s costs in the sum of $9550 (inclusive of GST) within 14 days.
- I direct that the sum of $9550 (inclusive of GST) shall be paid by the appellant to the Registrar of the District Court Brisbane within 14 days in order that such sum shall be paid over to the respondent (s 232(1) of the Act).
- [17]In order that the costs order which I have just made may be more readily understood, I have calculated that figure as follows:
Counsel fees in the amount of $2200 for preparation of the appeal and drafting and settling outline of argument; Counsel fees for the appearance 7th February 2011 in the amount of $3300; Counsel fees in the amount of $1050 for the appearance 21st November 2011; Attendances by solicitor totalling 6 hours (including instructing Counsel at Court) $1344; Instructions generally and to brief Counsel $1000; Travelling Time 7th February 2011 (instructing solicitor) 1 item $450; Travelling Expenses 7th February 2011 (instructing solicitor) $206. Counsel fees in the amount of $1050 for his appearance 21st November 2011 has been calculated in accordance with the Justices Regulation 2004 (Item 2: For each day of hearing after day 1) only, in light of the fact that the appeal itself was never going to actually proceed to hearing on that date, that fact having been already communicated to the respondent well in advance of that date and the fact that it was the common knowledge of both parties that the only matter to be argued on that day would be in respect of costs. However, because a Notice of Discontinuance was not formally entered by the appellant, an allowance under Item 2 of the Regulation for Counsel’s attendance on the 21st November 2011 is appropriate in all the circumstances. I am also satisfied that no further award of costs should be made in this particular case other than that which I have just made.