Kelly v Amundsen[2012] QDC 201

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant brought two complaints against the respondents under the Peace and Good Behaviour Act.  These were filed in the Registry of the Holland Park Magistrates Court on 15 April 2011 and 23 May 2011.  The learned Magistrate gave directions on 29 September 2011 and again on 22 December 2011 and both complaints were listed for hearing on 1 and 2 February 2012. 
2. [2]
   However, on 16 January 2012, the appellant gave notice to the Registry and I take it to the respondents, that she withdrew the complaints.  The matter came on before the learned Magistrate on 18 January 2012.  The appellant was not present and was not heard on that occasion.  That is because she had given notice that she withdrew the complaints. 
3. [3]
   I should say at this stage that the complaints allege conduct on the part of the respondents to the effect that the female respondent told the male respondent to hose the appellant.  There was also an allegation that the female respondent threw large tree branches into her property.  The appellant alleged she was very concerned the female respondent would throw these branches at herself and her children, as a result of the hosing incident.  A second complaint has alleged similar conduct and a fear of injury and damage to property.
4. [4]
   Returning to the course of events, as the file shows, the learned Magistrate did not record that the complaints were withdrawn but rather that the complaints were dismissed. 
5. [5]
   In relation to costs, the learned Magistrate ordered that they be assessed on an indemnity basis.  I should say that the respondents were represented before the learned Magistrate on 18 January 2012.  Unfortunately there is no transcript available of what happened on that date except from what is on the Court file. 
6. [6]
   The events then show that the respondents had costs assessed and on 28 February 2012, a cost certificate dated 27 February 2012, was filed in the Registry of the Court.  Costs had been assessed in an amount of $18,944.98. 
7. [7]
   On 19 March 2012, the appellant's solicitors filed in the Registry a notice of objection.  Procedures seem to have been taken with a view to having these costs determined as between the parties. 
8. [8]
   The learned Magistrate invited the parties to attend the Court on 23 March 2012.  The learned Magistrate has stated in a decision delivered on 13 April 2012 that on that day, 23 March 2012, counsel for the appellant relying on the decision in Besgrove v Larson [2001] QDC 144, there was no power to award costs at all in view of the appellant's solicitors writing and informing the Registrar on 16 January 2012 that he had been instructed to withdraw the application. 
9. [9]
   The written submissions of the learned Magistrate stated that no order for costs was made on the order striking out the complaints.  The learned Magistrate took the view though that this submission was without foundation.  Clearly he took the view that the order that he had made in respect of costs was appropriate.  The learned Magistrate took the view that he did make an order pursuant to section 158 and section 159 of the Justices Act on ordering the dismissal of the complaints. 
10. [10]
    The learned Magistrate accepted in his reasons delivered on 13 April 2012 that the effect of Besgrove v Larson, a decision of his Honour Judge McGill SC, was that under the Peace and Good Behaviour Act 1982 the provisions of the Justices Act are applicable.  That is, section 8 of the Peace and Good Behaviour Act 1982 provides "Subject to this part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of the prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 6, as if such complaint were a complaint in respect of such an offence." 
11. [11]
    I should have read also into the record that the heading to section 8 of this Act is "Application of Justices Act."
12. [12]
    Therefore, the learned Magistrate took the view that the Justices Act did apply to the dismissal of the complaints, however, he said no amount was fixed at the time of the orders he made on 18 January 2012 as he was ordered that the costs were to be assessed on an indemnity basis.
13. [13]
    The learned Magistrate noted that in the recent decision of HMG v BRC [2010] QDC 485, his Honour Judge Dorney QC held that in relation to a costs order pursuant to the Domestic and Family Violence Protection Act 1989 at paragraph 60 said, "There is no such order as a payment on an indemnity basis under the Justices Act." 
14. [14]
    Therefore the learned Magistrate took the view that the order he made on 18 January 2012 should therefore be corrected.  He then corrected it by setting it aside and said that a new order would be made.  
15. [15]
    He invited submissions.  The effect of that was that on 13 April 2012, he ordered costs under the Justices Act in the sum of $2,600.
16. [16]
    The appeal before me today is an appeal by the appellant by which she says the learned Magistrate erred at law in making an order for costs against her because he lacked the jurisdiction to do so. 
17. [17]
    It seems to me that there is some doubt, certainly in my own mind, whether the learned Magistrate could have allowed or whether the learned Magistrate should have allowed the withdrawal of the complaints rather than dismissing the complaints.  In this respect, I refer to Turner v Randall; ex parte Randall [1998] 1 Qd R 726. 
18. [18]
    However it does seem to me that it still would be a matter for the learned Magistrate whether the learned Magistrate was prepared to permit the withdrawal of the complaints notwithstanding the appellant sought withdrawal of the complaints. 
19. [19]
    As the Court demonstrated in that case, if a withdrawal occurs rather than a dismissal, the defendant can lose the benefit of s 149 of the Justices Act.  That section provides for dismissal of complaint and is as follows:  "If the Justices dismiss a complaint, they may if required so to do and if they think fit, make an order of dismissal and give the defendant a certificate thereof, which certificate shall upon production and without proof be a bar to any subsequent complaint for the same matter against the same person." 
20. [20]
    Therefore it would have been relevant on the 18th of January 2012 before the learned Magistrate whether he should allow withdrawal of the complaints rather than dismissal.  That is the respondents could lose a protection if the complaints were allowed to be withdrawn rather than dismissed. 
21. [21]
    In any event, as the record shows before me, the learned Magistrate did not allow the complaints to be withdrawn, although he did not have the appellant present or represented to make submissions to the contrary, but rather he did dismiss the complaints. 
22. [22]
    Therefore in my opinion, following Besgrove v Larson, the provisions of the Justices Act were applicable.  However, the learned Magistrate, in my opinion, did not have jurisdiction to make the order for costs that he did make on that date.  That is, that the costs be assessed on an indemnity basis.  He did not have that power under the Justices Act.
23. [23]
    This brings me though to the point of what has occurred subsequently to the 18th of January 2012 in this matter.  It is submitted by the appellant that the learned Magistrate was obliged if he was to exercise his discretion under the Justices Act, to make the order for costs in relation to the dismissal when he dismissed the complaints.  That is, he did not have power at a later date to set aside the order that was made which he had no power to make and substitute a different order for costs. 
24. [24]
    In this respect, I again find some difficulty in that it seems if it had been brought to this attention, the learned Magistrate would have made an order for costs under the Justices Act as he eventually did make on the 13th of April 2012, that he was obliged to make the order under the Justices Act and could make an order for indemnity costs. 
25. [25]
    In this respect, I refer to Bell v Carter; ex parte Bell [1992] QCA 245, where the situation was one of the Magistrate dismissing two charges.  The dismissal of the charges at the request of the appellant followed the execution by the respondent of a deed protecting the prosecution in general terms.  As the Court noted, the deed plainly precluded the respondent from seeking costs upon the dismissal of the charges.  However, apparently the respondent continued to press for costs. 
26. [26]
    The Court noted that s 159 of the Justices Act provided, "The sum allowed for costs shall in all cases be specified in the conviction or order or order of dismissal or order striking out a complaint for one of prosecution." 
27. [27]
    The Court noted there was no doubt the Magistrate dismissed the charges.  However, the only question in doubt was whether he made an order for costs leaving quantum to be fixed at a later date or made no order for costs at all on that date, notwithstanding an intimation of his intention to do so.  The Court said it is not necessary to decide which of these courses he took.  The Court said both were beyond power. 
28. [28]
    The Court then said, "If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the Court is in a position to make its final determination on the question of costs."  Therefore the Court held that the learned Magistrate in that case could not make an order for costs because he had not made the order at the time of the dismissal of the charges.
29. [29]
    In my opinion, the same situation exists in the present matter.  The learned Magistrate did not make on the day he dismissed the charges, namely the 18th of January 2012, a costs order under the Justices Act.  At that time and following the decision of Bell v Carter; ex parte Bell, in my opinion the learned Magistrate ought to have, if there was to be a valid order costs in the respondents' favour, and made the order for costs on that date.  In my opinion the slip rule is not available to rectify what has occurred in this case.  Therefore the learned Magistrate, I hold, erred in making an order for costs against the appellant on the 13th of April 2012 in this matter.  Therefore, I allow the appeal and set aside the order made by the learned Magistrate on the 13th of April 2012.
30. [30]
    In relation to the costs of this appeal, I do not allow costs for the appearances on the 23rd of March 2012 and the 13th of April 2012.  In my opinion they were part of the proceedings in the lower Court.  I also consider they arose out of the withdrawal of the complaints by the appellant and there would be concern on the part of the respondents to recover their costs, however, they did though not inform the learned Magistrate accordingly of his power which was limited to making the costs order on the day of the dismissal of the charges. 
31. [31]
    However I do allow the appellant her costs of the appeal which I consider is to be dealt with under the Justices Act, as all other proceedings should be, in a manner that comes under the Peace and Good Behaviour Act 1988.  I order the respondents to pay the appellant the costs of this appeal fixed in the sum of $1,800 to be paid to the Registrar within 21 days to be paid to the appellant.
32. [32]
    I note for the record, even though there were two complaints, they were effectively consolidated into one complaint.