So & Others v Comptroller General of Customs (No 2)
[2016] QDC 3
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- Unreported Judgment
- So & Others v Comptroller General of Customs (No 2)[2016] QDC 3
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So & Others v Comptroller General of Customs (No 2)[2016] QDC 3
So & Others v Comptroller General of Customs (No 2)[2016] QDC 3
DISTRICT COURT OF QUEENSLAND
CITATION: | So & Others v Comptroller General of Customs (No 2) [2016] QDC 3 |
PARTIES: | CHI HO SO & JASPREET SINGH JOHAL & LUN SHING YIP (appellants) v COMPTROLLER GENERAL OF CUSTOMS (respondent) |
FILE NO/S: | BD 1655/15 BD 1656/15 BD 1657/15 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 29 January 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers. Written submissions of the appellants undated. Written submissions of the respondent dated 25 January 2016. |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – COSTS - Quantum of costs to be awarded Justices Act 1886 (Q) ss 226, 232, 232A Justices Regulation 2014 (Q) schedule 2 Murray v Radford [2003] QCA 91 So & Others v Comptroller General of Customs [2015] QDC 334 |
COUNSEL: | Mr A. Braithwaite for the appellants. Solicitors for the respondents. |
SOLICITORS: | Russo Lawyers for the appellants. Australian Government Solicitor for the respondent. |
Introduction
- [1]This is my decision as to the issue of costs consequent upon the decision given in So & others v Comptroller General of Customs.[1]
Appellants’ submissions
- [2]The appellants submit that they are entitled to their costs of the appeal. It is submitted there was no disentitling conduct by the appellants and they had arguable points. It is submitted that the costs should follow the event. The appellants submit that costs in the sum of $1,500.00 for each appellant for day one and $875.00 for each appellant for a second day (the argument as to costs) should be awarded. This totals $7,125.00.
Respondent’s submissions
- [3]The respondent on the other hand submits that it would not be appropriate to award full costs here as there was no basis to assert that each of the three appellants had somewhat different positions; the triplication of the appeal has not added significantly to the appellants’ actual costs; each appeal dealt with a singular question of law; the same legal representatives acted for the three appellants and the appellants were not wholly successful in their appeals.
- [4]It is submitted the Court could reasonably allow a further uplift fee to reflect the issues involved in conducting three similar appeals in the sum of 50% over the scale of rate for one matter.
The Act
- [5]Section 226 of the Justices Act 1886 (Q) provides:
“Costs
The Judge may make such order as to costs to be paid by either party as the Judge may think just.”
- [6]Davies JA in Murray v Radford[2]considered this section reposes a very wide discretion in the court concerning costs.
- [7]Section 232A of the Justices Act 1886 (Q) provides:
“Costs for division
- (1)In deciding the costs that are just for this division, the judge may award costs only—
- (a)for an item allowed for this division under a scale of costs prescribed under a regulation; and
- (b)up to the amount allowed for the item under the scale.
- (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.”
- [8]Schedule 2 of the Justices Regulation 2014 (Q) relevantly provides in Part 2 that the scale amount is up to $1,500.00 for day one, and up to $875 for each subsequent day of the hearing. Other appearances are up to $250. For a District Court appeal these fees are increased by 20% i.e. $1800, $1050 and $300.[3]
- [9]Schedule 2 Part 1 section 3 of the Justice Regulation 2014 (Q) provides:
“Only necessary or proper costs may be allowed
A cost is to be allowed only to the extent to which –
- (a)incurring the cost was necessary or proper to achieve justice to defend the rights of the party or
- (b)the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.”
Disposition
- [10]In this case I do not consider there was any over-caution, negligence or mistake on the part of the appellants.
- [11]On the other hand, I tend to agree with the respondent that in this case there was “triplication” of the work involved in each of the appeals. Having said that, the appellant’s lawyers did act for three different individuals and each case needed to be considered to some extent.
- [12]Further I also take into account of course that the appellants did not succeed wholly in the appeal, but succeeded to some extent.
- [13]It seems to me, in all of the circumstances, that the respondent should pay costs as follows:
- (a)$1,800 for day one plus 50% (representing 25% for each of the two other appellants) – $2,700.
- (b)$300 for the appearance regarding costs.
- (c)Total – $3,000.
Orders
- [14]I order the respondent to pay to the Registrar of the District Court Brisbane the appellants’ costs fixed in the sum of $3,000 for payment over to the solicitors for the appellants. I order that this sum be paid within 30 days[4].