O'Connor v Commissioner of Police
[2021] QDC 120
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- Unreported Judgment
- O'Connor v Commissioner of Police[2021] QDC 120
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O'Connor v Commissioner of Police[2021] QDC 120
O'Connor v Commissioner of Police[2021] QDC 120
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Connor v Commissioner of Police [2021] QDC 120 |
PARTIES: | PAUL BRENDAN O'CONNOR (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO: | 2 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 |
ORIGINATING COURT: | Magistrates Court at Townsville |
DELIVERED ON: | 27 July 2021 |
DELIVERED AT: | Townsville |
HEARING DATE: | 14 May 2021 and upon written submissions |
JUDGE: | Coker DCJ |
ORDER: | 1. That the appellant pay the respondents costs of the appeal fixed in accordance with the provisions of section 232A of the Justices Act 1886 (Qld) and schedule 2 of the Justices Regulation 2014 (Qld) in the amount of $1800. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – where appeal was unsuccessful – where Respondent seeks costs – where Appellant opposes any costs order none having been sought in the Magistrates Court. |
LEGISLATION: | Justices Act 1886 (Qld) s 226, s 232A Justices Regulation 2014 (Qld) Sch 2, Pt 1(4) |
COUNSEL: | Self-represented appellant C. Hoyer for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]This judgment relates to costs in respect of the matter of Paul Brendan O'Connor v The Commissioner of Police. On the 2nd of November 2020 Paul Brendan O'Connor appeared on his own behalf before the Townsville Magistrates Court in answer to a complaint that he drove at a speed greater than the speed limit of 60 kilometres per hour. The learned Magistrate on that day, Magistrate Taylor, reserved his decision; indicating that he would notify the parties when the decision was ready.
- [2]The decision was handed down by Magistrate Taylor on the 15th of December 2020 and the learned Magistrate found that he was satisfied that the Prosecution had proved all of the essential elements of the offence beyond a reasonable doubt. There were, on the 15th of December 2020, still some issues that were required to be dealt with, particularly in relation to a question of costs of the hearing in the Magistrates Court, such that the matter was adjourned for two further days at which time the Magistrate was advised that the appellant and the prosecutor, having had discussions, were agreed that there would be no application made by the Prosecution as to costs. As a result of that indication being given, the Magistrate then formally convicted the appellant and fined him a total of $354 with that fine referred to SPER for registration.
- [3]Thereafter, on the 11th of January 2021, the appellant filed a notice of appeal; noting various grounds in relation to that appeal. The matter was heard by way of appeal by me on the 14th of May 2021 and on the 26th of May 2021 I delivered reasons and orders. The orders of the Court were as follows:
(1) the appeal is dismissed;
(2) a response by the appellant to the respondent’s submissions as to costs be filed within 14 days of today.
- [4]The reason for that second order was that in the outline of submissions filed on behalf of the respondent, the submissions on costs were included in the outline in the event of the appeal being unsuccessful. The appellant has, in accordance with those directions, filed material in response and I note that that material was filed on the 1st of June 2021 in a document headed ‘Submission as to Costs and Apprehended Bias of Judge Coker.’
- [5]Additionally, a further supplementary pleading was filed or received, at least, at the Court on the 6th of June 2021. That document headed Supplementary Pleadings to Submission as to Costs and Apprehended Bias of Judge Coker was noted and post-dated the 8th of June 2021 though, as I say, received on the 6th of June 2021 so as to comply with the orders made on the 26th of May 2021.
- [6]The issue of costs in relation to this matter is dealt with succinctly in the submissions filed on behalf of the respondent. The application is brought pursuant to the provisions of section 226 of the Justices Act 1886 (Qld). Section 226 is in these terms:
226 Costs
The judge may make such order as to costs to be paid by either party as the judge may think just.
- [7]Quite simply, it provides that a District Court Judge upon an appeal may make such order as to costs to be paid by either party as the Judge may think just. Section 232A of the Justices Act 1886 (Qld) details the costs in relation to an appeal, and section 232A is in these terms:
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.
- [8]The section clearly contemplates the gradual increase in relation to an amount for costs recognising that the costs can be ordered according to the scale of costs prescribed under the relevant regulations. Though subsection (2) does enable a Court, if satisfied, that a higher amount is just, having regard to the special difficulty, complexity or importance of the appeal. The relevant regulation is detailed in schedule 2 of the Justices Regulation 2014 (Qld) and provides at Part 1(4) as follows:
4 Appeal to District Court judge—professional costs are 20% higher than for complaint
For an appeal to a District Court judge under part 9, division 1 of the Act , the amount up to which costs may be allowed for legal professional work is the amount that may be allowed under part 2, as if the work were for a complaint, increased by 20%.
- [9]In this matter the uplift of 20% would mean that the total which could be ordered by way of costs is $1800 unless it were contemplated that there should be a higher amount ordered as a result of special difficulty, complexity or importance of the appeal. That amount of $1800 arises as a result of the fact that the legal costs which may be allowed for legal professional work undertaken for a hearing of a complaint up to and including one day is $1500. Of course, that is the basis upon which the original complaint in the Magistrates Court was brought. Accordingly, an uplift of 20% takes the amount of $1500 to $1800; which is claimed in this matter.
- [10]The basis upon which the costs are sought is simply as a result of the fact that the appeal was brought, it was defended by the respondent and the appellant was unsuccessful. The normal course in relation to costs in relation to proceedings of this nature is that costs follow the event and, as such, an unsuccessful appeal would be visited with a costs order.
- [11]The appellant in the first submission as to costs makes reference to a number of matters which should properly be addressed here. The first relates to the appeal decision naming the appellant as Brendan Paul O'Connor rather than the correct name, Paul Brendan O'Connor. Of course, the citation is simply O'Connor v Commissioner of Police [2021] QDC 86, but an error in the naming of the appellant is apparent, and I will direct that it be rectified in any further citation and any offence taken by the appellant is apologised for.
- [12]Thereafter, the appellant notes that there has been a failure by the legal officer attending on behalf of the respondent to takes steps to rectify the name on the appeal record and suggest that that has therefore given rise to a breach of her duties to the Court. I do not agree that that is a breach of the duties of a legal officer or any officer of the Court, but in any event note the concern and have made the direction as given with regard to the remedying of any offence caused.
- [13]More particularly, however, the appellant then notes that the proposition that the Court should indulge Ms Hoyer to the maximum of its discretion is a stretch too far and accordingly submits that any uplift be disapproved without further ado. The reasons given are obvious, it is submitted:
Because Ms Hoyer is no Geoffrey Robertson or Frank Galbally, despite her charm and servility.
- [14]Of course, such a submission is without justification. It is contended that because one legal representative may not be of a standard equivalent to another or have the seniority of another, there should be a distinction drawn. That is not the basis upon which a standard costs order is made, but rather it is upon the basis of an order being made and any uplift being met by the party who is represented by that person. Ms Hoyer’s seniority or experience is of no relevance whatsoever in relation to a determination of this matter. Thereafter, the argument contained within the submission as to costs and apprehended bias of me details on pages 2, 3, 4, 5 and 6 the basis upon which it is suggested that the decision in respect of the appeal is wrong. It is irrelevant in relation to any consideration as to costs in respect of these proceedings.
- [15]At page 7, following a bold type inclusion of the words:
I am satisfied at this time that Judge Coker is presiding over a miscarriage of justice and I apprehend vindictive bias.
The appellant then makes reference to what he deems other issues in regards to costs. They include submissions to the effect that he has now acquitted the penalty imposed by the lower Court, though, of course, as I have already noted, no costs were ordered in the lower Court. Additionally, he makes reference to his submissions to the District Court in relation to the appeal being economical compared to the voluminous indulgences of the respondents and the limited amount of time that was required for an attendance by the respondent at the appeal, it being accepted by both parties that their positions were detailed comprehensively in the written submissions that had been made.
- [16]Additionally, there were then submissions as to the bulk of the respondents written submissions being irrelevant and others with regard to the respondent’s representative not being a commercial entity, but rather a paid employee of the estate. Nor is it relevant that the appellant submits that he has made entreaties to negotiate on the issue of costs, negotiated the penalty to be imposed at the lower Court costs hearing, and negotiated the Prosecution’s abandonment of their application for costs in the lower Court.
- [17]Perhaps all that needs to be said in relation to those particular aspects of the matter is that the costs of the respondent are pursued in these proceedings and were not pursued in the lower Court.
- [18]Finally, the appellant makes reference to the course that would have been taken by him in the event of him being successful in relation to the appeal but, again, with respect, that is not a factor relevant in relation to the determination of costs. The appellant concludes with a notation in his first submission that having made a decision about Brendan Paul O'Connor rather than Paul Brendan O'Connor, it remains open to me to make an amended decision in relation to him, Paul Brendan O'Connor or that he appears to submit that there should be accepted as a part and parcel of these submissions an application for me to recuse myself from the hearing of costs on the basis of apprehended basis.
- [19]Such an application, of course, misstates and misunderstands the role of a judicial officer at the conclusion of proceedings in determination of costs.
- [20]The supplementary pleadings to submission as to costs and apprehended bias of me, again, restate the basis upon which it is submitted by the appellant that there has been error in the decision and a suggestion that I should recuse myself in relation to any determination or further involvement in the matter. I do not consider that such an application is warranted, nor is it properly made. The basis upon which a determination as to costs is made relates to the statutory framework upon which costs can be ordered and the circumstances that arise in relation to the proceedings.
- [21]Here, the appeal was brought by Paul Brendan O'Connor as the appellant and it was unsuccessful. The respondent seeks costs pursuant to section 226 of the Justices Act, and it is in my assessment appropriate that such an order should be made.
- [22]Accordingly, the orders of the Court are as follows:
- (a)Pursuant to section 226 of the Justices Act 1986 – 1886 (Qld), the appellant pay the respondents costs of the appeal fixed in accordance with the provisions of section 232A of the Justices Act 1886 (Qld) and schedule 2 of the Justices Regulation 2014 (Qld) in the amount of $1800.
- (a)