Harvey v Commissioner of Police
[2017] QDC 71
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- Harvey v Commissioner of Police[2017] QDC 71
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Harvey v Commissioner of Police[2017] QDC 71
Harvey v Commissioner of Police[2017] QDC 71
DISTRICT COURT OF QUEENSLAND
CITATION: | Harvey v Commissioner of Police [2017] QDC 71 |
PARTIES: | BARRY HARVEY v COMMISSIONER OF POLICE |
FILE NO/S: | 4955 of 2016 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 24 March 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 March 2017 |
JUDGE: | Richards DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – COSTS – OTHER MATTERS – Where the applicant was self-represented – where the applicant was acquitted of summary offences – where the applicant did not hold a practicing certificate – whether the applicant could act in the capacity of a lawyer and claim professional costs Justices Act 1886 (Qld), ss 72, 158A Legal Profession Act 2007 (Qld), ss 6, 24(1), 30, 31 Magistrates Court Act 1921 (Qld), s 18 Cachia v Hanes & Anor (1994) 179 CLR 403 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 Worchild v Petersen [2008] QCA 26 |
COUNSEL: | The appellant was self-represented Mr D Whitmore for the respondent |
SOLICITORS: | Commonwealth Director of Public Prosecutions for the respondent |
- [1]The appellant was charged with a number of summary offences, namely committing a public nuisance, using a carriage service to menace, harass or cause offence and breaches of bail conditions. The trial proceeded on 31 October 2016 with judgment given on 1 December 2016 when a verdict of acquittal was entered on all charges. On that date, the appellant argued that he should be awarded costs on the basis that he was entitled to taxation for his costs in accordance with the exception that qualified solicitors who act as self-represented litigants are able to claim costs. He relied in that submission on the High Court decision of Cachia v Hanes & Anor (1994) 179 CLR 403, claiming that he is a qualified solicitor because he has a degree in Law from Macquarie University and a graduate diploma in Legal Practice from the College of Law. The learned magistrate refused to order costs on the basis that the appellant, having a law degree but not a practising certificate from Queensland Law Society, could not act in the capacity as a lawyer and therefore would be unable to claim professional costs. This was the primary basis for refusal of costs, although she also noted in relation to s 158A of the Justices Act 1886 (Qld) that proceedings were continued and brought in good faith and there was no failure to take appropriate steps to investigate the matter. In the exercise of her discretion, therefore, costs were not appropriate in any event.
- [2]On appeal the appellant relies heavily again on Cachia v Hanes (supra), which he says provides that a person with legal qualifications can claim their own time in preparing and presenting a case. He submits that the High Court does not discuss the need for a practitioner to have a practising certificate and that because he holds the necessary academic qualifications he falls within the ambit of practitioner as it is referred to in that case. He claims he is a solicitor within the ordinary meaning of the term as he can, with his law degree and diploma of legal practice, represent people in the lower courts and provide legal advice.
- [3]The respondent submits that the general principle in relation to costs for litigants in person is that such a litigant cannot recover costs in respect of time lost by him in preparing and conducting his case. There is an exception to that general principle that a solicitor who appears as a litigant in person can recover professional costs in certain circumstances. This has been accepted in Cachia v Hanes (at 412), although is noted that this discussion was obiter in that case and the High Court regarded the exception with a degree of circumspection. This exception, however, remains the accepted law and has been followed in a number of cases including Guss v Veenhuizen (No 2) (1976) 136 CLR 47 and Worchild v Petersen [2008] QCA 26.
- [4]There is, however, a difference between someone who has completed a law degree and has a diploma of legal practice and a legal practitioner or a solicitor. At the hearing of this appeal, the appellant confirmed that he has not been admitted to practice in any State in Australia nor does he hold a practising certificate. He also confirmed that this was a deliberate choice because he does not want to become part of what he describes as a corrupt system. He maintains that because he has his degree and diploma that he is eligible for admission and therefore is, effectively, as good as a solicitor because he would be admitted to legal practice should he apply for admission. He maintains that nowhere is a solicitor legislatively defined in Queensland and therefore the ordinary dictionary meaning should apply and he would fall within that meaning because of his qualifications.
- [5]With respect, this represents a misstatement of the law and a misunderstanding of the rationale in Cachia. During argument the appellant insisted that the use of the word “practitioner” in Cachia that a practitioner meant that a person did not need to have been admitted or be able to practice within the rules of Law Society to be a practitioner as described by the High Court. However, it is clear upon a reading of the whole of the judgement that the court when using the term practitioner was using the term interchangeably with solicitor. The court observed (at p 411):
“A somewhat anomalous exception was introduced by London Scottish Benefit Society v Chorley (1884) 13 QBD 872 in which a solicitor successfully acted for himself in litigation. It was held that he was entitled to the same costs as if he had employed a solicitor, except for items such as obtaining instructions or attendances, which were unnecessary because he was his own client. The justification given for the privileged position afforded to a solicitor acting for himself is somewhat dubious, but it serves to emphasise the general rule.”
- [6]Clearly the court is adopting, with a great measure of reluctance, the principle that a solicitor acting for himself can recover costs and that largely seems to be because of the position adopted by the court in Guss v Veenhuizen (No 2) which also accepted that that was the principle. Importantly however, the court in Guss v Veenhuizen (No 2) noted (at p 52):
“The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred. The answer depends on the true basis of the rule. Since its basis is not one of privilege to a solicitor (in which case it might be argued that the precise qualification must be satisfied) but is that work done by a solicitor can be quantified on a taxation of costs, there is no reason why work done by the appellant whose lack of the precise qualification was the result of an error of an officer of the court, should not have the benefit of the rule of practice. If the error had not been on the part of an officer of the court but had been the fault of the party himself, the court would not attempt to assess his capacity to do the work done by him. He would be regarded as in the same position as an ordinary layman. But when the lack of qualification cannot be regarded as a lack of capacity because it has occurred simply through the error of a court officer, then the principle to which we have referred earlier in these reasons is applicable and the court should treat him as though he had the qualification which brings him within the rule of practice.”
- [7]This principle was adopted in Queensland in Worchild v Petersen, where the court accepted the principle enunciated in Guss v Veenhuizen (No 2) that costs were not appropriate in a case where a solicitor had not renewed his practising certificate and accepted the view of the District Court judge as correct, namely (at 4[10]):
“He held that the circumstances of the applicant were distinguishable from those in Guss, holding that it was the appellant’s choice not to practice because he had not renewed his Practising Certificate. The learned trial judge was not in error in coming to that conclusion.”
- [8]The practice of a solicitor in the legal profession in Queensland is governed by the Legal Profession Act 2007 (Qld). Section 6 of that Act provides the following terms relating to legal practitioners:
- “(1)An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.
- (2)A local legal practitioner is an Australian lawyer who holds a current local practising certificate.
- (3)An interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.”
- [9]Section 24 provides:
- “(1)A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
- [10]A “solicitor” is defined in the dictionary of the Act (in part (c)) as:
- “(i)a local legal practitioner who holds a current local practising certificate to practise as a solicitor; or
- (ii)an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engaging in legal practice only as or in the manner of a barrister.”
- [11]It follows that the appellant is neither a legal practitioner nor a solicitor in this State because he does not hold a current local practising certificate or an interstate practising certificate. Further, his argument that he is eligible for admission and therefore a solicitor within the ordinary meaning of the term is also incorrect. This is because a solicitor or legal practitioner must not only be eligible for admission but suitable for admission. Eligibility for admission under s 30 of the Act provides that a person is eligible for admission if they are aged 18 years or more and they have attained the approved academic qualifications and the approved practical legal training requirements. They must also be suitable for admission under s 31 of the Act which provides that the Supreme Court can only admit someone if they are a fit and proper person to be admitted. This involves a consideration of their suitability generally, namely a consideration of whether they have previous criminal convictions, their traffic history and whether there has been any academic misconduct or other transgressions of that nature.
- [12]It follows then that the appellant is no more than a lay person with degrees and diplomas in relation to the law. He is neither a legal practitioner nor a solicitor and does not have a right of practice in the Magistrates Court or the District Court. He, of course, does have a right to represent himself under s 72 of the Justices Act 1886 (Qld) and s 18 of the Magistrates Court Act 1921 (Qld) which he did successfully, but that does not entitle him to professional costs. At the hearing of this appeal the appellant also submitted that he was entitled to disbursements although he did not detail what those disbursements were and he did not provide a list of disbursements to the magistrate at first instance. In light of the magistrates remarks that she was not inclined to exercise her discretion in any event to order costs under s 158A of the Justices Act 1886 (Qld), in my view there is no basis to order that disbursements be paid to the appellant.
- [13]The crown has submitted that the appellant should be ordered to pay the costs of appeal if unsuccessful. In my view, given that the respondent is the crown it is not appropriate to make an order for costs.
ORDER
The appeal is dismissed.