Hemelaar v Brisbane City Council (No 2)
[2017] QDC 34
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- Unreported Judgment
- Hemelaar v Brisbane City Council (No 2)[2017] QDC 34
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Hemelaar v Brisbane City Council (No 2)[2017] QDC 34
Hemelaar v Brisbane City Council (No 2)[2017] QDC 34
DISTRICT COURT OF QUEENSLAND
CITATION: | Hemelaar v Brisbane City Council (No. 2) [2017] QDC 34 |
PARTIES: | RYAN NICHOLAS HEMELAAR (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | 3922 of 2016 |
DIVISION: | Criminal |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 27 February 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Everson DCJ |
ORDER: | The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,000.00 to the registrar within three months. |
CATCHWORDS: | CRIMINAL LAW – APPEAL – COSTS – where a higher amount is justified having regard to the special difficulty, complexity or importance of the appeal Justices Act 1886 (Qld) Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111 Environmental Protection Authority v Alkem Drums Pty Ltd (1996) 93 LGERA 83 Smith v Ash [2010] QCA 112 |
COUNSEL: | SC Fisher for the appellant MJ Byrne QC for the respondent |
SOLICITORS: | The Brisbane City Legal Practice for the respondent |
Introduction
- [1]This is an application for costs by the respondent following the dismissal of the appellant’s appeal on 7 February 2017.
- [2]Pursuant to s 226 of the Justices Act 1886 (“JA”), I may make such order as to costs to be paid by either party as I “may think just”. Section 232A thereafter states:
“232A 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.”
- [3]The respondent submits that the appeal was of such special difficulty, complexity or importance that I should allow a higher amount for costs than is provided for under the scale.[1]
Special difficulty, complexity or importance of the appeal
- [4]The appeal concerned whether or not the appellant was entitled to assemble with others in the Queen Street Mall and engage in evangelical activities. These included addressing the public, distributing literature and providing free bibles while utilising a sketch board and easel, signs and banners.[2] The appellant asserted that he was not subject to the restrictions placed on such activities by the Public Land and Council Assets Local Law 2014 (Qld) (“the Local Law”). He asserted that this was because the Peaceful Assembly Act 1992 (Qld) (“PAA”) prevailed over the Local Law making the activities referred to above lawful.[3] Pursuant to the PAA, the appellant gave 111 separate notices of intention to assemble in the Queen Street Mall for six hours at a time.[4]
- [5]The eight breaches of the Local Law, the subject of the prosecution in the Magistrates Court below, and the appeal, therefore arose in the context of a test case concerning the right of peaceful assembly in the context of a public assembly pursuant to the PAA, on the one hand and the right of the respondent to control activities in the Queen Street Mall pursuant to the Local Law on the other. In unsuccessfully challenging the respondent’s authority to control activities in the Queen Street Mall in the way he did, it is just and reasonable that the appellant be subject to a costs order.[5]
- [6]In considering the phrase “special difficulty, complexity or importance” Morzone QC DCJ stated:
“…in my view the test is an objective one of whether the difficulty, complexity or importance of the particular case at hand surpasses what is common or usual in an ordinary sense. The inquiry ought not be directed to (the) subjective importance of the case to the respective parties.”[6]
- [7]The question before me had not previously been considered apart from in the decision the subject of the appeal. It clearly involved a significant issue of public interest. The rights of people, including the appellant, to assemble in the Queen Street Mall and engage in activities, including evangelical activities, was in conflict with the right of the respondent to regulate activities in the Queen Street Mall which may interfere with other members of the public and those who carry on business there. The resolution of the appeal required the consideration of considerable extrinsic material pursuant to s 14B of the Acts Interpretation Act 1954 (Qld), namely the Report on Review of Public Assembly Law by the Electoral and Administrative Review Commission, the Report of the Parliamentary Committee for Electoral and Administrative Review, the Second Reading Speech made to the Legislative Assembly when introducing the Peaceful Assembly Bill and the contents of the official record of the proceedings in the Legislative Assembly which proceeded thereafter.
- [8]In the circumstances, I find that appeal involved a degree of complexity and was important from a public interest perspective. Accordingly, I am of the view that it is appropriate to consider allowing a higher amount of costs than provided for under the scale pursuant to s 232A of the JA.
The quantification of the costs
- [9]The respondent submits that if the costs were ordered pursuant to the scale, the appropriate award would be $2,824.64. The respondent incurred significantly greater costs than this however, principally in engaging Queens Counsel to prepare for and appear on the hearing of the appeal at a total cost of $11,000.00. I note that it also asserted that internal legal costs were incurred up to and including the day of the hearing of the appeal, in the total sum of $3,937.50. However, this amount has not been meaningfully quantified and it does not appear to be potentially capable of an award in any event. In Environmental Protection Authority v Alkem Drums Pty Ltd, Talbot J observed in the context of an application for costs by the Environment Protection Authority in New South Wales:
“The better view, after a review of the authorities, appears to me to be that a corporation which takes the opportunity to use its own legally qualified staff is not incurring an expense which can be directly related to the conduct of the litigation. The salary paid to staff does not equate to out-of-pocket costs of providing legal services which the corporation would not have incurred except for its involvement in the litigation.”[7]
In the circumstances, Talbot J limited the order for costs to disbursements.
- [10]In my view, given the public interest involved in this appeal and its complexity, it was appropriate for the respondent to incur the fees of Queens Counsel in the sum of $11,000.00. I am however cognisant of the fact that whilst legal costs ordinarily compensate the successful party to a degree, they are not the same as costs awarded on the indemnity basis.[8] In all of the circumstances, I am of the view that it is just to order the appellant to pay the respondent’s costs in the sum of $6,000.00.
- [11]Pursuant to s 232(1) of the JA, I must direct that such costs be paid to the registrar and state the time within which such costs are to be paid. I note that the appellant represents an organisation which does not give the appearance of being impecunious. Indeed, no submission has been made that he will have difficulty in complying with a costs order. In the circumstances I am of the view that the costs ought to be paid to the registrar within three months.
Order
- [12]I order that the appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,000.00 and direct that they be paid to the registrar within three months.
Footnotes
[1] Justices Regulation 2014, Schedule 2 Part 2.
[2] RJ [4].
[3] RJ [10].
[4] RJ Magistrates Court [23].
[5] Applying Smith v Ash [2011] 2 Qd R 175, 197 [100].
[6] Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111 [24].
[7] (1996) 93 LGERA 83, 90.
[8] I make this observation taking into account the difference between the appeal and a civil proceeding but noting the comments of Chesterman JA in Smith v Ash [2010] QCA 112, 197 [100].