Cullinan v McCahon[2014] QDC 120

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant has appealed against the dismissal by a Magistrate on 7 June 2013 of the appellant’s application that a complaint laid under the Justices Act 1886  (“Justices Act”) for contravention of s 83(1)(b) of the Building Act 1975 be dismissed with costs. The appellant lost on all grounds before the learned Magistrate. 

2. [2]
   The appellant contends that the learned Magistrate erred in rejecting the various grounds for dismissal of the complaint.

3. [3]
   On 12 November 2013 the respondent filed a submission in this court stating that it agreed to this court making the following orders:

1. (a)
   The appeal be allowed;

2. (b)
   The complaint laid by the respondent the subject of this appeal be dismissed;

3. (c)
   The respondent pay the appellant’s costs of the hearing below pursuant to ss 158 and 158B(1) of the Justices Act fixed in the sum of $3,375.00; and

4. (d)
   The respondent pay the appellant’s costs of the appeal pursuant to ss 226 and 232A(1) of the Justices Act fixed in the sum of $1,800.00.

4. [4]
   Hence, the respondent, having conceded that the appeal should be allowed, has agreed to pay the appellant’s costs in the amounts allowed under the Justices Act and the Justices Regulations 2004 (‘Justices Regulations’). The costs particularised above were calculated on the basis of allowing the maximum claimable under the scale items detailed in items 1 and 4 of Part 1, Schedule 2 of the Justices Regulations.

5. [5]
   The appellant now applies to the court to exercise its discretion under ss 158B and 232A of the Justices Act for a “higher amount for costs” to be awarded on the basis that such higher amount is “just and reasonable having regard to the special difficulty, complexity or importance of the case”.

6. [6]
   As I understand the appellant’s current submissions, he also seeks that the costs be assessed by a cost assessor.

7. [7]
   Hence, the issues for determination are:

1. (a)
   Should the respondent be ordered to pay costs in an amount above the scale items detailed in items 1 and 4 of Part 1, Schedule 2 of the Justices Regulations?

2. (b)
   If so, does the court have the power to order that the costs sought be assessed by a costs assessor?

3. (c)
   If the court does not have that power, what would be an amount that is appropriate in all of the circumstances?

Legislation

8. [8]
   Section 158 of the Justices Act states:

2. (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.

2. (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.

9. [9]
   Section 158B of the Justices Act states:

2. (1)
   In deciding the costs that are just and reasonable for this division, the justices may award costs only—

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

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

2. (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.

10. [10]
    Section 226 of the Justices Act states:

The judge may make such order as to costs to be paid by either party as the judge may think just.

11. [11]
    Section 232A of the Justices Act states:

2. (1)
   In deciding the costs that are just for this division, the judge may award costs only—

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

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

2. (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.

12. [12]
    The appellant was charged as follows:

“The Complaint of Christopher McCahon of Brisbane in the State of Queensland a ‘public officer’ as defined in the Justices Act 1886 as amended and being the Enforcement Coordination Manager, Enforcement Team, Compliance and Regularity Services, Brisbane, Lifestyle Division, Brisbane City Council, made this 19^th day of April 2012 before the undersigned, a Justice of the Peace for the State, who says alleges and avers that he is an officer of the Council and that on 21 October 2011, it came to the Complainant’s knowledge that on 13 September 2010, Mark William Cullinan, being a private certifier as defined in the Building Act 1975, at premises situated at 631 Grassdale Court, Gumdale in the State of Queensland, more particularly described as Lot 1 on RP216813, County of Stanley, Parish of Tingalpa (“the Premises”) and in the Magistrates Court District constituted by the Holland Park Division of the Brisbane District appointed under, and for the purposes of, the Justices Act 1886 and within the area of the City of Brisbane, as constituted by the City of Brisbane Act 2010, as amended, did grant the Building Approval Decision Notice for Addition to Dwelling dated 13 September 2010, before all necessary preliminary approvals under the Sustainable Planning Act 2009 were effective for other assessable parts of the development, contrary to s 83(1)(b) of the Building Act 1975.”

13. [13]
    The Complaint and Summons also stated the following particulars:

“On 13 September 2010 did grant the a (stet) Development Application Decision Notice for Building Work – Addition to Dwelling, before all necessary approvals under the Sustainable Planning Act 2009 were effective for the other assessable parts of the development, namely a Development Permit for Preliminary Approval for Building Work issued by Brisbane City Council”.

14. [14]
    Hence, the essence of the charge was reasonably straight forward – the appellant was accused of granting a Building Approval Decision Notice for Addition to Dwelling before a Development Permit for Preliminary Approval for Building Work was issued. The appellant has submitted however, that this was a matter that involved special difficulty, complexity or importance. As I understand it, that submission is based on the following considerations either individually or collectively:

1. (a)
   this was a charge that invoked the relevance of a number of Acts each of significant complexity;

2. (b)
   this was a charge that required considerable work and effort to meet;

3. (c)
   the complaint was brought outside the statutory time limitation;

4. (d)
   the complaint should have been brought in the name of the Brisbane City Council;

5. (e)
   the complaint was bad in law;

6. (f)
   the complaint was vexatious because it allegedly failed to properly continue the words of the statute in the Sustainable Planning Act 2009;

7. (g)
   the particulars were inadequate; and

8. (h)
   the charge involved an allegation against the appellant in his professional capacity.

15. [15]
    As I have already indicated, the respondent has conceded the appeal. Accordingly, there has been no hearing on the merits of the appeal grounds (which ran to 12 pages).^[1]

16. [16]
    The principles applicable to awarding costs where there has been no determination on the merits were identified by Hill J in Australian Securities Commission v Aust-Home Investments Limited & Ors^[2]:

“(1)Where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order: Stratford and the SEQEB case.

7. (2)
   It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: Stratford supra. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.

7. (3)
   In determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them (SEQEB, supra).

7. (4)
   In a particular case it might be appropriate for the court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times News Paper Co Ltd v McIntosh (1933) 33 SR (NSW) 371.”

17. [17]
    Similarly, in Re Minister for Immigration & Ethnic Affairs & Anor; ex parte Lai Quin, McHugh J stated:

“In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action.  The Court cannot try a hypothetical action between the parties.  To do so would burden the parties with the cost of a litigated action which by settlement or extra-curial action they had avoided.

...

The critical question in this case is whether or not the prosecutrix acted reasonably in bringing these proceedings…”^[3]

18. [18]
    Despite the principles enunciated in these decisions, the appellant initially seemed to be arguing that the appeal grounds raised by him required determination:

“The appellant seeks a Judgment on the substance of these matters to vindicate his professional reputation and so that an evaluated determination can be made about a higher amount for costs having regard to the special difficulty, complexity and importance of the case.”^[4]

19. [19]
    I understand however that the appellants present position is that he does not seek judgment on any of the matters raised, rather he has raised them for the purpose of demonstrating the alleged special difficulty, complexity and/or importance of the case.

20. [20]
    Unfortunately for the appellant, I do not agree that the case was one which involved special difficulty, complexity or importance.

21. [21]
    There is no doubt that it was a matter that had a degree of difficulty and/or complexity attached to it. The question however is whether it amounted to special difficulty or complexity.

22. [22]
    “Special” is relevantly defined in The Macquarie Dictionary as “extraordinary; exceptional; exceptional in amount or degree.”

23. [23]
    The Macquarie Dictionary Online defines it as “distinguished or different from what is ordinary or usual”.

24. [24]
    Examples of cases where special difficulty or complexity was found to exist are Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169 (‘Lucy No 2”) in reference to Lucy v OCC Holdings Pty Ltd [2008] QDC 004 and Morley v Senewiratne & Anor [2008] QDC 296.  These cases involved detailed legal argument by Senior Counsel in hearings that lasted for days.  Whilst the length of the hearing and the fact that Senior Counsel was briefed is not determinative of a finding that a matter involves special difficulty, complexity or importance, it can nevertheless be a relevant consideration in the determination of such an issue.  In this matter, the application before the Magistrate only lasted for a few hours and did not involve any issues that were out of the ordinary. 

25. [25]
    For instance, it can hardly be said that a matter involves special difficulty or complexity simply because the relevant legislation is complex. If that was the criteria for assessing the issue, then the absurd consequence would be that all matters that come before the court under that legislation would fall into the category of having special difficulty or complexity. Whilst the relevant legislation in this matter might have some complexity to it, in my view the charge was quite straightforward in nature and its particulars were brief and neither suggested an especially difficult or complex case.

26. [26]
    It may well have been the case that it was a charge that required considerable work and effort to meet, but, once again that does not suggest any special quality. All charges require work and effort on the part of a defendant and his/her legal representatives. The degree will of course vary from case to case. I am not persuaded that the degree required in this matter was specially onerous, difficult or complex. Whilst I appreciate that the appellant’s legal representative submitted to the contrary, it appeared to me that he had an unfortunate tendency to overly complicate relatively simple concepts. For instance, he submitted that a comment made by a former Lord Mayor at a Council meeting held on 2 March 2010 that “I have put money in the Council budget to literally pursue private certifiers, to gather evidence, to take them to the Building Services Authority (BSA)” added to the special difficulty, complexity and importance of this case. In my view, that comment added nothing to the difficulty, complexity or importance of the matter as it was clearly irrelevant.

27. [27]
    Similarly, he submitted, on a preliminary point, that the difficulty or complexity of the case was increased as a result of an email sent to him on 22 April 2014 (i.e. two days before the hearing in this court) from the respondent’s solicitor advising that if the appellant does not acknowledge that he has seen an earlier email from the respondent’s solicitor, then that earlier email would be re-sent direct to the appellant. I ruled that the appellant’s affidavit exhibiting this email correspondence was irrelevant and therefore inadmissible. It most certainly did not add to the special difficulty, complexity or importance of the case.

28. [28]
    The appellant’s assertion that this was a matter that involved special difficulty or complexity also runs contrary to one of the oral submissions made during the hearing by the appellant’s legal representative, where this interchange between bench and bar table occurred:

“MR ABAZA: Instead this matter went from crisis to crisis. It ought to have been terminated at a very early date.  It had no merit at the beginning.  In fact, it was doomed to fail and what your Honour sees today, in essence, is that 19 months lapsed before the Council saw the writing on the wall, and in that 19 months a great deal of expense was incurred.

HIS HONOUR:  So you say it was obvious that it was doomed to fail from the outset?

MR ABAZA:  Yes.  Yes.

HIS HONOUR:  Doesn’t that counter against your argument that there is a special complexity to this matter?

MR ABAZA:  No, because the case …

HIS HONOUR:  If it was so obvious from the outset, why would it be specially complex?

MR ABAZA:  Well, because of all these steps that had to be taken.  Each step along the way had to be taken.  The application before the Magistrates Court had to be taken.  The inspections had to occur.  The rummaging through all of these documents had to occur.  The letters pointing out the defects had to be written.  The letters that pointed out the issue of the particulars, they had to be written.”^[5]

29. [29]
    I am in no position to decide whether the appellant’s solicitor was correct in his identification of that list of duties, but assuming he is, it appears to me that he has confused the issue of volume of work with the issue of special difficulty or complexity.

30. [30]
    It has also been submitted that the issues as to whether the matter was brought outside the statutory time limit and whether the matter should have been brought in the name of the Brisbane City Council added to the special difficulty or complexity of the case. In fact, the main question agitated by the appellant in the court below was whether the complaint was out of time. Neither of these issues however, involved difficult questions of law. The first turned on an evidentiary question as to when knowledge first came to the complainant and is the type of issue routinely dealt with in the Magistrates (and Superior) Courts.  The second issue was a discreet point that could have been succinctly addressed in submissions. In fact, as I understand it, the submission was reliant upon just the one authority, that is Ipswich City Council v Dixon Build Pty Ltd [2012] QCA 98. 

31. [31]
    The appellant also submitted that the charge was bad in law and/or that the complaint was vexatious because it allegedly failed to properly continue the words of the statute, and that these matters also added to the special difficulty or complexity.^[6] Once again, in my view, these are the types of issues that arise frequently in the courts and are not necessarily demonstrative of special difficulty or complexity. They certainly do not fall into that category in this matter given its reasonably straightforward nature. 

32. [32]
    The alleged inadequacy of particulars also does not assist the appellant’s submission as that was a matter that could easily have been addressed in pre-trial argument.

33. [33]
    Finally, the appellant has submitted that this matter had a special importance because:

1. (a)
   it was a prosecution that involved an abuse of process; and/or

2. (b)
   the matter involved allegations against the appellant in his professional capacity.

34. [34]
    The abuse of process is said to have been constituted by a combination of factors such as the bringing of proceedings out of time, the complaint being brought in the wrong name and the inadequacy of both the wording of the charge and the particulars. In my view however, these matters, neither in isolation nor in combination, result in this case being of special importance. In fact, they do not appear to be issues that are even relevant to that concept.

35. [35]
    In relation to the second point, I accept that this case was important to the appellant, as no doubt every criminal case is to every defendant. To invoke special importance however, the case must involve more than the charge merely relating to a defendant in his/her professional capacity. “Special importance” is clearly a reference to the importance of the case generally, in terms of questions of law or public interest (this list is not exhaustive) and is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her.

36. [36]
    Accordingly, I am not persuaded that this was a case that involved special difficulty, complexity or importance.

Does the District Court have power to order that costs be assessed?

37. [37]
    Despite my conclusion above, I will nevertheless briefly address this issue.

38. [38]
    The appellant initially sought an order for costs to be assessed but, after receipt of the respondent’s written submissions, conceded in reply, that the court had no jurisdiction to order such an assessment under the Justices Act. 

39. [39]
    That position seemed to change again during oral submissions where the appellant’s legal representative submitted that he “thought” that the court does have such a power and relied on Reid v Queensland Police Service [2007] QDC 21.  In Reid, his Honour Judge Tutt, after dismissing the appeal, made an order as to costs in the following terms:

“The appellant pay the respondent’s costs of and incidental to the appeal to be agreed or assessed on the standard basis under the District Court scale.”^[7]

40. [40]
    I note however, that there is no mention in the reasons for Judgment of any submissions having been presented to Tutt DCJ regarding the issue of the assessment of damages, which was hardly surprising as the appellant in that matter was self represented. Given that there is clear and unambiguous authority to the contrary, this decision carries no precedent value.

41. [41]
    The appellant has not otherwise identified the power by which the court can order the assessment of costs in these circumstances.

42. [42]
    The leading authority on the awarding of a higher amount under the Justices Act is Lucy (No. 2). In that matter Robin QC DCJ held that there was no power to order a costs assessment under the Justices Act.^[8]

43. [43]
    Like Robin QC DCJ (and Wall QC DCJ in Santosa v Guerin [2007] QDC 337) I also can find no power that would allow this court to make an order referring the matter to a costs assessor.

Orders

1. The appeal is allowed.
2. The complaint laid by the respondent to this appeal is dismissed.
3. The appellant’s application seeking the court to exercise its discretion under sections 158B and 232A of the Justices Act 1886 is dismissed.
4. The respondent pay the appellant’s costs of the hearing below pursuant to sections 158 and 158B(1) of the Justices Act 1886 fixed in the sum of $3,375.00.
5. The respondent pay the appellant’s costs of the appeal pursuant to sections 226 and 232A(1) of the Justices Act 1886 fixed in the sum of $1,800.00.

44. [44]
    I will hear the parties as to costs regarding the appellant’s application seeking the court to exercise its discretion under ss 158B and 232A of the Justices Act for a higher amount for costs to be awarded.