Meyer v Carey[2012] QDC 188

QDC [2012] 188

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE HARRISON

Appeal No 62 of 2010

Appeal No 97 of 2010

CAIRNS

DATE 21/02/2012

JUDGMENT

HIS HONOUR: There are before me two District Court appeals numbered D62 of 2010 and D97 of 2010 and I am required to determine the issue of costs in relation to both. For convenience, I will deal firstly with appeal number 97 of 2010.

On the 24th of June 2011, I upheld an appeal by the appellant and set aside the conviction for a summary charge under the Transport Operations (Marine Safety) Act 1994. The appeal was heard under the provisions of section 222 of the Justices Act 1886. In view of his successful appeal, the appellant now seeks costs in respect of the appeal and also costs in relation to the original trial.

For the purposes of my decision it is not necessary to go into any detail in relation to the facts of this matter. They are more than adequately set out in the reasons that I gave when I upheld the appeal. It is necessary to consider a number of relevant sections of the Justices Act and I will deal firstly with those.

The costs on the appeal are governed by the provisions of section 226 and 232A of the Justices Act. Section 226 provides, "The Judge may make such order as to costs to be paid by either party as the Judge may think just."  On the face of it, that is a very wide discretion, but regard must also be had to the provisions of section 232A which provides:

232ACosts for division

3. (1)
   In deciding the costs that are just for this division, the judge may award costs only—

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

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

3. (2)
   However, the judge may 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.

In relation to the costs of the original hearing of the complaint, regard has to be had firstly to section 158 of the Justices Act which provides:

158Costs on dismissal

3. (1)
   When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

3. (2)
   When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.

Regard also has to be had to section 158A of the Act which provides:

158AExercise of discretion in relation to an award of costs

3. (1)
   Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.

3. (2)
   In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—

3. (a)
   whether the proceeding was brought and continued in good faith; and

3. (b)
   whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and

3. (c)
   whether the investigation into the offence was conducted in an appropriate way; and

3. (d)
   whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and

3. (e)
   whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and

3. (f)
   whether the defendant unreasonably declined an opportunity before a charge was laid—

3. (i)
   to explain the defendant’s version of the events; or

3. (ii)
   to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and

3. (g)
   whether there was a failure to comply with a direction given under section 83A; and

3. (h)
   whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and

3. (i)
   whether the defendant was acquitted on a charge, but convicted on another.

3. (3)
   If an order for costs under section 158 is made against a complainant who is a police officer or public officer (within the meaning of this subsection), the clerk of the court is to give to the defendant a certificate signed by the clerk showing the amount of costs awarded.

3. (4)
   Subject to subsection, the defendant is entitled to be paid by the State the amount shown in the certificate within 2 months after payment is claimed.

3. (5)
   If an appeal against an order for costs is made under section 222—

3. (a)
   payment of the amount shown in the certificate is stayed until the appeal is decided; and

3. (b)
   payment is to be made of the amount (if any) ordered or confirmed by further order made on the appeal.

3. (6)
   In subsection (3)—

public officer does not include—

3. (a)
   an officer or employee of the public service of the Commonwealth; or

3. (b)
   an officer or employee of a statutory body that represents the Crown in right of the Commonwealth; or

3. (c)
   an officer or employee of a local government.

Regard then has to be had to section 158B of the Act which provides:

158BCosts for division

3. (1)
   In deciding the costs that are just and reasonable for this division, the justices may award costs only—

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

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

3. (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.

For the purposes of section 232A (1) and for the purposes of section 158B (1) I have to have regard to costs set out in schedule 2 to the Justices Regulation. It is not necessary to read that regulation into the record, other than to say that in summary matters the maximum costs allowed under the regulation are $1,500 for the first day of a trial and $875 for any day thereafter. In the case of appeals to the District Court there can effectively be an uplift to a maximum of 20 per cent, which would make the maximum allowable, if regulation costs were ordered, of $1,800 for a one-day appeal.

I note by way of comment that the test under section 158B(2) is virtually the same as the test under section 232A(2), and this deals with the situation where the Court awards costs in excess of the regulation costs.

Now, I will deal firstly with the appeal costs on that particular appeal. The applicant submits that he should be entitled to costs payable over and above the regulations because of special difficulty, complexity and importance of the appeal. The respondent has submitted that the costs on that appeal should be limited to the regulation and should be a maximum, therefore, of $1,800.

In my decision relative to this appeal, I was very critical of the way the case was particularised. It is not necessary to go into that in any detail for the purposes of my decision, but the criticism was quite widespread. It is sufficient for current purposes to say that the particulars of this complaint changed substantially from time to time and, more importantly, changed during the course of what was a four-day trial.

It ended up in the situation where the appellant was convicted on two particulars, neither of which had been supplied prior to the commencement of the four-day trial. This meant that much of the trial preparation and much of the Court time on trial was spent, or should I say wasted, by pursuing particulars that were never eventually relied upon.

It seems to me that the way this was done, of itself did create special difficulty for the purposes of section 232A(2) and also made the matter unnecessarily complex for the purposes of that same subsection.

On the hearing of the appeal, both sides and myself had to wade through a welter of material, much of which was totally unnecessary and would have been unnecessary if the case had been particularised properly in the first place. I even made the comment at one stage in my decision that the whole matter would probably have been done in less than half the time had it been properly particularised in the first place.

These are matters which, I believe, involve no fault on the part of the appellant, and it seems to me a proper case, therefore, because of those special difficulties and the associated complexity to exercise my discretion under section 232A(2) to order costs in excess of the schedule.

Had this matter proceeded to trial on the strength of the particulars that were eventually relied upon, then I may well have approached the exercise of this discretion differently. In those circumstances, I probably would have limited any appeal costs, even though I found error on the part of the Magistrate, to regulation costs. I will deal further in this decision with the quantum of the costs in excess of the regulations.

I will then turn to the costs of the four day summary trial. Essentially here, what I have to do is go through a two stage process considering, firstly, whether I should exercise the discretion to order costs under section 158 of the Act, having regard to the matters relevant under section 158A. If I then decide in favour of the applicant, it is then necessary for me to consider the exercise of the discretion under section 158B(2), which, as I said, is a very similar discretion to the one on 232A(2).

I have considered the matters relevant under section 158A of the Act. I would not make any finding under subsection (2)(a) that the proceedings were brought in good faith. I believe, however, that subsection (2)(b) is relevant, which relates to the failure to take appropriate steps to investigate a matter coming to or within the knowledge of the person responsible for bringing or continuing the proceeding.

Here, I rely on those numerous changes of particulars and it seems to me that the constant changes in particulars, which culminated with the substitution of those on trial, for which he was eventually convicted, clearly pointed to a failure to take appropriate steps to investigate the matter to the knowledge of the person responsible for bringing and continuing the proceeding. Subsection (2)(c) also seems relevant in the sense that the investigation did not, it seems to me, get conducted in an appropriate way.

Thought was not even given, it would seem, to the two very matters which, ultimately, when particularised on trial, led to the conviction which I set aside. Subsection (2)(d) is not relevant because the order for dismissal was not one on technical grounds. I do not believe that subsection (2)(e) is relevant because I do not believe that it could be said that the appellant brought suspicion on himself by conduct he engaged in after the events constituting the commission of the offence, because the real problem here related to the constant shifting of particulars.

I do not believe that subsection (2)(f) is relevant because it seems to me that it would be hard to say that he declined an opportunity before a charge was laid to explain his version of events. He never found out until well into his trial what the particulars of what he was supposed to meet were. Similarly, subsection (2)(g) has no relevance and I do not believe that subsection (h) has any relevance. Certainly, the trial was prolonged and did, in my opinion, get prolonged unreasonably, but this related to the particulars and not to his conduct of the trial. Subsection (2) (i) does not apply because there's no suggestion that he was convicted of another charge on the acquittal of this charge.

The matters under subsection (b) and (c) or subsection 2(b) and (c) are clearly relevant and I have no difficulty in concluding that this is a proper case to award costs. The discretion then has to be exercised under subsection 158B. I believe that this is a case where I should allow a higher amount for the trial costs because I am satisfied that there was special difficulty and complexity in this case. My reasoning in that regard is exactly the same as per my reasoning on appeal, and it is not necessary for me to take that matter any further.

In the circumstances, I will be making an allowance for costs over and above the regulation for the trial of the original complaint, placing myself in the position of a Magistrate who dismissed a complaint. I will deal with the quantum of those costs shortly.

I turn now to appeal number 62 of 2010, which involved totally different considerations. Certainly, the sections 226 and 232A are relevant for the purposes of this appeal and I should add that this appeal, effectively, related to a decision of a Magistrate not to set aside an earlier plea of guilty. I ruled in favour of the appellant and set aside the plea of guilty and ordered that the matter proceed according to law.

In submissions, the appellant has sought a certificate under the provisions of section 22 of the Appeal Costs Fund Act. Section 22 of the Act provides:

22Abortive proceedings and new trials after proceedings discontinued

3. (1A)
   This section does not apply to a guideline proceeding.

3. (1)
   Where after the commencement of this Act—

3. (a)
   any civil or criminal proceedings are rendered abortive by the death or illness of the judge, master, magistrate or justice before whom the proceedings were had or in the case of proceedings had before the Industrial Court on appeal, of any member of that court or by disagreement on the part of the jury where the proceedings are with a jury; or

3. (b)
   an appeal on a question of law against the conviction of a person (the appellant) convicted on indictment is upheld and a new trial is ordered; or

3. (c)
   the hearing of any civil or criminal proceeding is discontinued and a new trial ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default, in the case of civil proceedings, of any of the parties thereto or their legal representatives, or, in the case of criminal proceedings, of the accused or the accused’s legal representatives, and the presiding judge, magistrate or justice grants a certificate (which certificate the presiding judge, magistrate or justice is hereby authorised to grant)—

3. (i)
   in the case of civil proceedings—to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of any of the parties to the proceedings or their legal representatives; or

3. (ii)
   in the case of criminal proceedings—to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or the accused’s legal representatives; any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, who pays or is ordered to pay additional costs or on whose behalf additional costs are paid or ordered to be paid by reason of the new trial shall be entitled to be paid from the fund such costs as the board considers have been reasonably incurred by the person or on the person’s behalf in the proceedings before they were rendered abortive or the conviction was quashed or the hearing of the proceedings was discontinued, as the case may be.

3. (2)
   No amount shall be paid from the fund under this section to the Crown.

3. (3)
   For the purposes of this section, where in criminal proceedings a presiding judge, magistrate or justice directs that the proceedings being heard be discontinued with a view to other criminal proceedings based on the facts alleged against the accused being instituted, it shall be deemed that a new trial is ordered.

Indemnity cost certificates under section 22 of the Appeal Costs Fund Act can be awarded in certain limited circumstances. Subsection 1A(1)(a) deals with a situation of deal or illness by the presiding judicial officer and does not apply here.

Subsection 1A(1)(b) deals with an appeal against conviction where a new trial is ordered, and where this happens on a question of law. The argument advanced on behalf of the appellant is that subsection 1A(1)(c) applies on the basis that the hearing in this matter was discontinued and, in effect, a new trial was ordered in circumstances where it was not attributable in any way to an act, neglect or default of the accused or his legal representatives.

I can not accept the argument that this section applies. I note that the respondent did not oppose the application, and I can well see why it was in the respondent's interest not to do so, but I can not conclude that what we had here was a discontinuance of a hearing.

In the course of argument, I was referred to numerous authorities under very similarly worded Commonwealth legislation and to two lines of cases which dealt with the broader and narrower interpretations of the word "discontinuance" for the purposes of these applications.

I was also referred to a decision of Hoath DCJ in R v. Khoury [2003] QDC 235 where he refused an application for indemnity costs where a matter was adjourned. It seems that the defendant in that case prepared at great cost for a trial and the trial was adjourned at the last minute through no fault of his own. His Honour Judge Hoath analysed the authorities and concluded that an adjournment did not come within the ambit of discontinuance for the purposes of section 22.

It seems to me here that this is an even more clear-cut case. The plea of guilty had been entered some time before and it was necessary to make this application to set aside the plea of guilty. The hearing itself could not have commenced unless and until that plea of guilty was set aside, and that stage was not reached and effectively was only reached after the appellant was successful on appeal and I had the matter referred back to the Magistrates Court. So in the circumstances, it seems to me that section 22 is not of any application and I am not prepared to issue any indemnity certificate under the Appeal Cost Fund Act.

It is then necessary to consider costs further from there. Costs on the successful appeal are clearly available by virtue of section 226 of the Justices Act. Costs orders are not available on the summary hearing because the discretion which arises under section 158 of the Act only arises in circumstances where a complaint has been dismissed and, as I said earlier, this matter never got that far. Costs should follow the event under section 226 and the real issue for me relative to this appeal is whether or not the matter comes within section 232A(2). If not, then the costs order should be regulation costs.

The issues involving this matter were totally different to the other appeal where the appellant was successful. The issue essentially was that on my findings the appellant did raise before the Magistrate an arguable defence under section 24 of the Criminal Code and that once he had done that the plea of guilty should have been set aside. I am unable to conclude in all the circumstances that this is a matter where section 232A(2) applies and it seems to me that it could not be said that this matter had any special difficulty or that it was of sufficient complexity to come within the ambit of section 232A(2). In those circumstances, it seems to me that the costs relative to that appeal should be limited to regulation costs. Certainly, they should be at the top of what is available. So in relation to that appeal, I order that the respondent pay the applicant's costs of and incidental to the appeal fixed at $1,800.

I turn now to the quantum of the order for the costs on appeal and on trial on the other appeal where, obviously, my conclusions are totally different. For convenience, I will deal firstly with the appeal. I have had regard to the affidavit of the appellant and also the affidavit of his solicitor, Mr Richardson, and it does seem as though throughout the course of time the appellant has expended a considerable amount in costs. This was complicated by the fact that he engaged Mr Sweet in the first place on a direct brief. Briefly, there were other solicitors involved, although they seemed to me to be engaged for certain other matters, not necessarily to any great extent on the trial, before Mr Richardson's firm was engaged to assist in the final preparation and to instruct on the trial of the matter.

Now, on the appeal, I have been provided with information in the affidavit of Mr Richardson as to what the actual costs were. He assessed his costs relative to the appeals at $11,000, and that, to me, is not unreasonable. He did, however, enter into an arrangement with the client, for reasons which are set out in the material, to reduce that by 50 per cent. It seems to me on the authorities that I have to look at the actual cost to the appellant in those circumstances. So the actual cost in that regard was $5,500. Some of that related to the other appeal where I have limited costs to regulation costs but it seems to me that the more complex of the two matters was this appeal and, in the circumstances, I am prepared to allow 60 per cent of the $5,500, namely $3,300, for solicitors' costs.

There are two accounts from Mr Sweet relevant to the appeal matters. One as set out in paragraph 16 of the affidavit of Mr Richardson, this was for a total amount of $16,379, which, because he entered into the same agreement with the client, was reduced to $8,189.50. I am prepared to allow 60 per cent of that which I have rounded off at $4,900.

There is also a further account from Mr Sweet which is exhibited to the same affidavit of Mr Richardson and it claims an amount of in excess of $12,000 relative to further work done, particularly in relation to the application for costs. It is difficult to apportion that as between both matters but I accept that there was a substantial amount of work involved and after allowing for the fact that there has been some success in relation to this appeal it seems to me to be just and reasonable for the purposes of the legislation to allow an additional $5,000. That makes the total amount that I have allowed for costs on the appeal, $13,200, and I order that the respondent pay the applicant the sum of $13,200 in respect of the costs of and incidental to the successful appeal.

I have considered also the question of the trial costs. As I said, the trial proceeded for four days. The information from Mr Richardson shows that he charged $11,000 for his involvement in the trial, and that seems to me to be more than reasonable having regard to the length of this matter, much of which arose because of those problems in relation to the constant moving of the goal posts relative to particulars. So I do allow that amount.

There is an account from Mr Sweet for $18,249.52. I have analysed that account and that seems to me to be reasonable in view of the work that was involved. The work was quite considerable, particularly as the defence had to change focus time and time again because of the constant moving of particulars to the farcical point where he was convicted on the strength of matters which were never particularised prior to the trial. So I do allow the account from him.

So, it seems that Mr Normington gave evidence as an expert, and it is very difficult to properly assess what Mr Normington's costs were. The appellant in his affidavit has indicated that he expended about $21,500 on Mr Normington on all matters, but did not have the accounts and was unable to particularise how they were broken up.

Certainly, Mr Normington's evidence was very relevant on the hearing of this matter and one matter that was critical to my findings on the appeal was the fact that the Magistrate never really rejected what he said about the possibility that the valves may not have been in the same state when found after the time in the water as they were when the vessel actually sank. So, it seems to me reasonable to allow something from Mr Normington. It is a very difficult exercise, but doing the best I can looking at his evidence I have allowed an additional $6,000.

Now, there are numerous other accounts involved along the way in preparation. I have not made any further allowances than the ones I have included here for this reason. It seems to me that the matter was unnecessarily prolonged and I don't think this justifies my going back and ordering that every cent ever expended on everything should be recovered, particularly when I have no power on the cost relative to the change of plea, and I have refused the application for an indemnity certificate.

So, in the circumstances I have limited the costs on trial which in my opinion are just and reasonable to $35,249.52, and I order that the respondent pay the appellant costs of and incidental to the original trial following the dismissal of the complaint which I have fixed at $35,249.52 . Do I need to make any further orders?

MR RICHARDSON: No, your Honour. If I could just clarify, the final order you made with the respect to the appeal costs, was that $13,200?

HIS HONOUR: Yes.

MR RICHARDSON: Thank you, your Honour.

HIS HONOUR: I hope that adds up, I'll just check.

MR RICHARDSON: No, your arithmetic did. I thought I heard your Honour say $13,000.

HIS HONOUR: No, the figure was $13,200 that I've got written here.

MR RICHARDSON: Two hundred, that's the costs of the appeal.

HIS HONOUR: If I said otherwise, I'll correct the record if there's no problem from either of you.

MR RICHARDSON: And the - if I can just again clarify, you allowed solicitors on the trial at $11,000.

HIS HONOUR: Yes.

MR RICHARDSON: Counsel fees at 18,000‑‑‑‑‑

HIS HONOUR: 249.52, and 6,000 for the witness.

MR RICHARDSON: Thank you, your Honour.

HIS HONOUR: Yes, and that totals 34,249.52.

MR RICHARDSON: Thank you, your Honour.

HIS HONOUR: Anything from you?

MR RICHARDSON: No, thank you, your Honour.

HIS HONOUR: Ms Thomas?

MS THOMAS: Thank you, your Honour. I have nothing else. I had 13,200 as what you said. Could I order‑‑‑‑‑

HIS HONOUR: Hang on, I may well have added it up wrong. Maths was never my strong point. No, I get 35. I said 11,000, 18,249.52 and 6,000.

MS THOMAS: Yes, yes.

HIS HONOUR: Total, 35,249.52. Sorry, I'll get it right yet. Yes, 35,249.52. Is that right?

MR RICHARDSON: Yes, thank you, your Honour.

HIS HONOUR: All right. If there's any mathematical errors in there I'm sure you won't mind if I correct them when I go through the transcript.

MR RICHARDSON: Certainly not, your Honour.

HIS HONOUR: Yes. Well, thank you both.

MS THOMAS: Thank you, your Honour.

MR RICHARDSON: Thank you, your Honour.