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Whitby v Stockair Pty Ltd (No 2)[2015] QDC 110

Whitby v Stockair Pty Ltd (No 2)[2015] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Whitby v Stockair Pty Ltd & Jackson (No 2) [2015] QDC 110

PARTIES:

ALLAN MATTHEW WHITBY

(appellant)

v

STOCKAIR PTY LTD

(respondent)

and

SIMON GRAYDON JACKSON

(respondent)

FILE NO/S:

BD3058/14

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

19.05.15

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Farr SC DCJ

ORDER:

No orders as to costs.

CATCHWORDS:

COSTS – where indictable offence dealt with summarily

Justices Act 1886 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Bell v Carter; ex parte Bell [1992] QCA 245

Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297

Jones v. Wrotham Park Estates [1980] AC 74

Kammins Co. v. Zenith Investments (1971) AC 850

Mills v Meeking (1990) 169 CLR 214

Smith v Ash [2010] QCA 112; [2011] Qd R 175

Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231

COUNSEL:

Ms L Hamilton for the appellant

Mr D B O'Sullivan QC with Mr J M Noud for the respondents

SOLICITORS:

Commonwealth Director of Public Prosecutions for the appellant

McCullough Robertson for the respondents

  1. [1]
    The court dismissed the appellant’s appeal on 16 April 2015.[1]The respondents now seek an order that the appellant pay them a sum of $40,000 being two-thirds of the costs incurred of and incidental to the appeal.
  1. [2]
    There is some doubt however whether the court has jurisdiction to make any such award of costs.
  1. [3]
    The appeal is governed by Part 9 of the Justices Act 1886 (Qld) (“Justices Act”). The first substantive provision of Part 9 is s 222. Section 222 (1) provides as follows:

“(1)If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [4]
    The appeal in this matter was brought pursuant to s 222 and was conducted in accordance with s 223 of the Justices Act, as an appeal by way of rehearing.
  1. [5]
    Within Part 9, s 226 of the Justices Act provides for the power of a District Court judge to order costs upon the hearing of a s 222 appeal. It provides as follows:

226 Costs

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

  1. [6]
    Section 226 is to be read with s 232 of the Justices Act, which says as follows:

232 Costs of appeal

(1)If upon any appeal the judge orders either party to pay costs such order shall direct such costs to be paid to the registrar to be paid over to the party entitled to the same and shall state within what time such costs are to be paid.

(2)If such costs are not paid within the time so limited the registrar upon the application of the party entitled to such costs or of any person on the party’s behalf and on payment of the prescribed fee shall grant to the party so applying a certificate that such costs have not been paid.

(3)Upon production of such certificate to any justice, the payment of such costs may be enforced in the same manner as is hereinbefore provided for enforcing the payment of costs awarded by justices or by putting the recognisance (if any) in suit or in both of such modes.

(4)No order as to costs may be made on—

(a)the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by justices; or

(b)any proceeding preliminary or incidental to an appeal mentioned in paragraph (a).”

  1. [7]
    The critical question on the jurisdiction point is whether s 232(4) has the effect that the court has no jurisdiction to award costs to the successful respondents in this matter. There is no dispute that the proceedings at first instance were the trials of charges for indictable offences dealt with summarily.[2]The respondents submit however that s 232(4) notwithstanding that fact, has no application in this matter.
  1. [8]
    In support of that submission, the respondents argue that the appeal, being only in relation to the issue of the costs ordered in the court below, was not therefore an appeal in relation to an indictable offence dealt with summarily. It is submitted that as this was not an appeal against the decision of justices to convict or as to the sentence imposed upon conviction, it was therefore not an appeal in relation to the disposition of the charges. It follows, so it is argued, that this was not an “appeal in relation to an indictable offence dealt with summarily” within the natural, ordinary meaning of those words.
  1. [9]
    In further support of that argument, the respondents submit that the language of s 232(4) is to be contrasted with that employed in s 222(1), which refers to an “order made” by justices. It is submitted that if s 232(4)(a) was intended to capture an appeal in relation to costs alone, it could have been expected to have mirrored the language of s 222(1), and to provide that “no order as to costs may be made on the hearing or determination of an appeal in relation to any order made by justices dealing summarily with an indictable offence”, or alternatively “no order as to costs may be made on the hearing or determination of an appeal in relation to any order made by justices dealing with an indictable offence in a summary way”. The respondents submit that the difference in language between the two sections was not accidental and was done advisedly.
  1. [10]
    Section 222(2)(b) specifically restricts the rights of appeal of a complainant aggrieved by an order of justices dealing summarily with an indictable offence by providing that such a person may appeal under s 222 only against sentence or an order for costs. No such restriction is applied to a defendant. The argument for the appellant is that the legislation having specifically contemplated a complainant appealing against an order for costs following the summary trial of an indictable offence, it follows that s 232(4)(a) must, implicitly, have contemplated an appeal of this kind when it speaks of “an appeal in relation to an indictable offence that was dealt with summarily…”. The respondents submit however that the presence of s 222(2)(b) equally tells against such a construction because s 232(4)(a) not only does not refer to s 222(2)(b), but also does not adopt the language of either that section or s 222(1). The respondents note that both of those sections are cast in terms of an appeal against an order made by justices (“… an order made by justices or a justice in a summary way…” (s 222(1)) and “… an order of justices dealing summarily with an indictable offence” (s 222(2)(b))).
  1. [11]
    The respondents submit that as the language used in s 232(4) is quite different from that employed in s 222(2)(b), the natural inference is that the difference in language was intentional, and that s 232(4)(a) is intended to refer to an appeal against the disposition of charges for an indictable offence, and is not intended to capture any other order that may be made upon the summary determination of charges for an indictable offence.
  1. [12]
    I do not agree with that submission.
  1. [13]
    Section 222(1) of the Justices Act provides for a general rule in relation to appeals. However subsection (2) provides for exceptions to that general rule, and subsection (2)(b) states:

“if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs;”

  1. [14]
    Section 158(1) of the Justices Act assumes some relevance. It states:

158 Costs on dismissal

(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.” 

  1. [15]
    Similarly, s 159 of the Justices Act is also of relevance to the issue of the original costs order. It states:

159 The sum allowed for costs to be specified in the conviction or order

The sum so 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 want of jurisdiction.”

  1. [16]
    As can be seen, ss 158(1) and 159 of the Justices Act impose an explicit restriction, which was described by Fraser JA in Smith v Ash[3]as the “technique of making the costs order an aspect of the substantive order”.[4]In other words, under these provisions a costs order is part of the order for dismissal.[5]Once that position is understood, the appellant’s argument is without foundation. The costs order appealed against was part of the order for dismissal in relation to indictable offences dealt with summarily.
  1. [17]
    Furthermore, in my view s 232(4)(a) contains no ambiguity irrespective of the above approach. The subject of an appeal is the issue that is to be determined. For a disgruntled complainant, that means that it must be either an appeal against sentence in relation to an indictable offence dealt with summarily by justices, or an appeal against a costs order in relation to an indictable offence dealt with summarily by justices. Either way, s 232(4)(a) specifically prohibits the court from making a costs order in such circumstances.
  1. [18]
    The respondents have also presented an alternative argument, which develops a purposive approach to this issue of statutory interpretation. I will repeat their submissions in that regard in full:

“31. Subsection (4) of section 232 was introduced by the Courts Reform Amendment Act 1997, on 18 July 1997. Before 1997, section 232 comprised only subsections (1) (2) and (3), which had been added to the Justices Act many years earlier, in 1949.

  1. The addition of subsection (4) to section 232 was part of a suite of amendments that were made to ‘enhance the effective operation of the Queensland judicial system’. Significantly, another amendment made by the Courts Reform Amendment Act 1997 was replacing section 223 of the Justices Act. The new section 223, as amended in 1997, mandated that any appeal under section 222 would always be by way of rehearing on the original evidence given before the justices in the Magistrates Court. Before 1997, section 223 had been in the following terms:

‘223.Appeal to be on original materials unless rehearing ordered or agreed to.

If the Judge so orders or the parties so agree the appeal shall be by way of rehearing but otherwise the appeal shall be heard and determined upon the evidence and proceedings before the justices.’

  1. The new section 223 made clear that all appeals under section 222 would henceforth be by way of rehearing, unless the District Court Judge gave leave to adduce new evidence.
  1. Once the change to section 223 is noticed, it is submitted that it becomes apparent why section 234(4) was introduced into the Justices Act at the same time, with the effect that an appellant from the summary determination of an indictable offence henceforth enjoyed much reduced rights to costs in the District Court, in comparison to other appellants: a result that would otherwise appear to be counterintuitive, or at least anomalous (there being no obvious reason why the right to costs on an appeal should be weaker where the charged offence was more serious).
  1. It is submitted that the reason for introducing section 234(4) in 1997, was to achieve consistency between, on the one hand, the costs position obtaining where an indictable offence was tried in the District Court, and on the other, the costs position obtaining upon a section 222 appeal in respect of the same offence tried summarily, in circumstances where the appeal would henceforth always be by way of re-hearing in the District Court. No costs could have been awarded if the charges had been tried on indictment in the District Court. Given the similarity between a rehearing of the kind mandated by the amended section 223, and the determination of the matter on indictment in the District Court, the purpose of section 232(4) was to achieve consistent costs outcomes in both cases: that is, in both cases, no costs would be payable in respect of the proceedings in the District Court.
  1. It is submitted that this purpose explains why section 234(4) was introduced, and also explains the language employed in section 232(4), and why it refers to ‘an appeal in relation to an indictable offence that was dealt with summarily…’, and not ‘an appeal in relation to an order made by justices dealing summarily with an indictable offence’: as was discussed earlier.
  1. The distinction makes sense once the purpose of section 232(4) is noticed, for a re-hearing of the issue of whether one party should pay the costs of proceeding before justices in a particular amount (or of any other order that did not dispose of the charges by conviction and/or sentence), is not a proceeding that would occur in the District Court if the matter had instead been tried on indictment. In relation to such orders there can be no inconsistency of the kind that section 232(4) was intended to prevent. To put the point another way, the reason for the statutory discrimination against appellants charged with indictable offences, contained in section 232(4), has no application where the appeal is against costs alone.”
  1. [19]
    In Smith v Ash, Fraser JA at [33] when discussing statutory interpretation:

“Gibbs CJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, said that departure from the literal meaning may be justified where the result of giving words their ordinary meaning may be ‘so irrational that the court is forced to the conclusion that the draftsman has made a mistake’, but it is clear that departure from the literal meaning may sometimes also be justified in cases falling short of manifest irrationality.” (footnotes omitted).

  1. [20]
    Fraser JA also referred to the following statement by McHugh J in Mills v Meeking[6]:

“A court cannot depart from the literal meaning of a statutory provision because that meaning produces anomalies or injustices if no real doubt as to the intention of Parliament arises: Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 at pp 305, 320; Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231 at pp 234-235, 237-238; [1978] 1 All ER 948 at pp 951952, 954. But, when the literal meaning of a provision gives rise to an absurdity, injustice or anomaly, a real doubt will frequently arise as to whether Parliament intended the literal meaning to prevail. In such a case, a court may be entitled to disregard the literal meaning. In Cooper Brookes (Wollongong) Pty. Ltd. Gibbs C.J. pointed out (at p 304):

‘There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case ...’

But this does not mean that a court is bound by the literal or grammatical meaning of a statutory provision unless that meaning produces an irrational result. This was made plain by Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty. Ltd. where their Honours said (at p 321):

‘On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.’

Moreover, once it is apparent that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole, the court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision: Kammins Co. v. Zenith Investments (1971) AC 850 at pp 880-882; Jones v. Wrotham Park Estates [1980] AC 74 at p 105; Cooper Brookes (Wollongong) Pty. Ltd., at pp 321-323.”

  1. [21]
    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[7], Hayne, Heydon, Crennan and Kiefel JJ said;

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (footnotes omitted).

  1. [22]
    As I have already stated, in my view s 232(4)(a) of the Justices Act is unambiguous and clear in meaning and its literal interpretation does not result in irrationality, absurdity or an outcome so extraordinary that it allows for the conclusion that the legislature could not have intended such an interpretation. The respondents’ argument therefore, though well-constructed, simply does not overcome that problem.
  1. [23]
    Accordingly, pursuant to s 232(4)(a) of the Justices Act there is no order as to costs.

Footnotes

[1]Whitby v Stockair Pty Ltd & Jackson [2015] QDC 079

[2]See s 4 Justices Act; s 69 Judiciary Act 1903 (Cth); s 60 District Court of Queensland Act 1967; s 9(1) Export Control Act 1982 (Cth); s 135.1(7) Criminal Code (Cth); ss 4G and 4H Crimes Act 1914 (Cth); s 17(1) Export Control Act (Cth). 

[3][2010] QCA 112; [2011] Qd R 175.

[4]Ibid at [27].

[5]See Bell v Carter; ex parte Bell [1992] QCA 245 at folios 4-5.

[6](1990) 169 CLR 214 at 242-243.

[7](2009) 239 CLR 27 at 46-47.

Close

Editorial Notes

  • Published Case Name:

    Whitby v Stockair Pty Ltd & Jackson (No 2)

  • Shortened Case Name:

    Whitby v Stockair Pty Ltd (No 2)

  • MNC:

    [2015] QDC 110

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    19 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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