Saba v Department of Transport and Main Roads (No 2)
[2013] QDC 128
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Saba v Department of Transport and Main Roads (No 2)[2013] QDC 128
- Add to List
Saba v Department of Transport and Main Roads (No 2)[2013] QDC 128
Saba v Department of Transport and Main Roads (No 2)[2013] QDC 128
DISTRICT COURT OF QUEENSLAND
CITATION: | Saba v Department of Transport and Main Roads (No 2) [2013] QDC 128 |
PARTIES: | GEORGE SABA (appellant) and DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) |
FILE NO/S: | BD4857/12 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Holland Park |
DELIVERED ON: | 7 June 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC, DCJ |
ORDER: | No orders as to costs. |
CATCHWORDS: | Costs of appeal – whether circumstances particular to resolution of appeal generated a “no order” just outcome Justices Act 1886 ss 157, 222, 226, 232, 232A Latoudis v Casey (1990) 170 CLR 534 Saba v Department of Transport and Main Roads [2013] QDC 118 Scanlon v Queensland Police Service [2011] QDC 236 Smith v Ash [2011] 2 Qd R 175 Tamawood Ltd v Paans [2005] 2 Qd R 101 |
COUNSEL: | Mr G Saba (Self-represented) Mr A Mason for the respondent |
SOLICITORS: | (Appellant self-represented) Department of Transport and Main Roads for the respondent |
Introduction
- [1]On 24 May 2013, after making the substantive orders in this appeal, I ordered that both parties had leave to file, and serve, submissions, if any, on costs by 4.00pm on 31 May 2013.
- [2]Since it has been brought to my attention that the appellant was not given a copy of my reasons until 27 May 2013, I have delayed until now reaching any decision on this issue of costs.
- [3]The respondent, for its part, filed its submissions on 27 May 2013.
Power to award appeal costs
- [4]Section 226 of the Justices Act 1886 (“JA”) states that the judge (on appeal) may make such order as to costs to be paid by either party as the judge may think “just”.
- [5]If upon an appeal the Judge orders either party to pay costs, then s 232 and s 232A come into operation. For reasons which will be discussed below, neither of those provisions applies here.
Preliminary View
- [6]In handing down my reasons for that decision in Saba v Department of Transport and Main Roads,[1] I stated that, given the reasons which underlaid the conclusion that I then reached, my inclination was that there ought be no order as to costs of the appeal: at [27].
- [7]The reasons underlying the conclusion were that the appellant, although unsuccessful on appeal, was only unsuccessful because no relevant error had been shown (in circumstances where I determined that the conclusion reached by the learned Magistrate at first instance was one that was reasonably open, but that I had reached that conclusion even though I would have found, myself, to the contrary if I had been the first instance judicial officer).
Respondent’s arguments
- [8]The respondent’s primary argument, although referring to the costs of the appeal awardable under Part 9, Division 1 of the JA (which contains s 226), relied upon extensive reference to the principles applicable to the first instance power conferred by s 157 of the JA.
- [9]The wording differs between the two provisions; and while undoubtedly some of the general principles have common applicability, I find it preferable to consider decisions which have canvassed the actual provision: see the observations of Keane JA in Tamawood Ltd v Paans.[2] Nevertheless, this case also raises the issue of the level of the learned Magistrate’s order as to costs; and s 157 of the JA governed that as discussed below. The essence of the respondent’s argument is that it has “exhausted resources”, that costs “ought to follow this decision” and that an order for costs against the appellant “is appropriate in these circumstances”.
Relevant appeal principles
- [10]In Scanlon v Queensland Police Service,[3] Andrews SC DCJ undertook some consideration of this provision, in some detail. After noting that Latoudis v Casey[4]held that the discretion must be exercised judicially, it was noted that costs are not to be awarded by way of punishment of the unsuccessful party and, if costs are to be awarded, they are to compensate the successful party against its costs of successfully resisting the appeal: at [4].
- [11]In Scanlon, various factors were then considered as being relevant, there, to the issue of the “just” exercise of the discretion. They included:
- the existence of any disentitling conduct;
- the effect, if any, of raising an arguable point on the appellant’s part;
- whether costs follow the event; and
- although not directly relevant here, the contention that there was a practice that costs of appeal for decisions involving a charge of public nuisance are not awarded.
Application of appeal principles
- [12]Here, there was no disentitling conduct on the respondent’s part.
- [13]As noted in Scanlon, it is not the law that costs need follow the event, because “a just order will not always be an order for costs that follow the event”: at [14].
- [14]But the very important factor – which never needed to be considered in Scanlon – is the factor that I have already mentioned of the appellant’s argument concerning the characterisation or description of the conduct in question. Even though he was self-represented, the argument had intrinsic merit, even if it did not eventually prove to be decisive of the outcome.
First instance costs
- [15]Although the appealed orders covered both conviction and sentence, it is clear from the Notice of Appeal that, besides conviction, the only issue that the appellant agitated was the “$700 for attendance fees”. This is acknowledged by the respondent’s Outline of Argument. In circumstances where the respondent – as complainant - had sought $1,500.00 pursuant to s 157 of the JA, where $750.00 was awarded (when the hearing day itself could generate, with instructions and preparation, $1,500.00 pursuant to the Justices Regulation 2004) and where the learned Magistrate appreciated that the appellant/defendant was in another Court on 21 September 2012, there is no basis for concluding that the discretionary decision was in error. A relevant statement of principles applicable here concerning summary jurisdiction was made by Chesterman JA in Smith v Ash.[5]
Outcome
- [16]Accordingly, I consider, in the proper exercise of my discretion, that the just outcome in this particular appeal is one in which neither the appellant (who lost the appeal) nor the respondent (who won the appeal despite my conclusions concerning the characterisation or description just mentioned) should be the recipient of a compensatory order. Furthermore, there was no appealable error in awarding costs at first instance.
Order
- [17]The only order that I intend to make in this case is that there be no order as to costs.