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Guilfoyle v J Hutchinson Pty Ltd QDC 233
DISTRICT COURT OF QUEENSLAND
Guilfoyle v J Hutchinson Pty Ltd  QDC 233
AARON JOHN GUILFOYLE
J HUTCHINSON PTY LTD
District Court at Brisbane
21 September 2021
Written Submissions on 16 & 20 September 2021
CRIMINAL LAW – PROCEDURE – S 222 APPEAL – COSTS – whether the matter involved “special difficulty, complexity or importance” – whether, should the matter should be properly classified as one of special importance, costs ought to be awarded in accordance with the scale prescribed in Schedule 2 of the Justices Regulation 2014 (Qld)
Justices Act 1886 (Qld) s 226, s 232A
Justices Regulation 2014 (Qld) sch 2 pt 1, s 4 sch 2
Guilfoyle v J Hutchinson Pty Ltd  QDC 221
Guilfoyle v Niepe Constructions Pty Ltd  QMC 1
Hickey v CMC  QDC 340
Interclean Industrial Services Limited v Auckland Regional Council  3 NZLR 489
Whitby v Stockair Pty Ltd & Anor  QDC 79
T Ward for the Appellant
P Roney QC and R J Byrnes for the Respondent
Office of the Work Health and Safety Prosecutor for the Appellant
McCullough Robertson for the Respondent
- I have previously delivered written reasons to explain why I have concluded the learned Magistrate was in error in coming to the conclusion that she did.
- The successful appellant now seeks an order for costs in the sum of $13,950. It is submitted on his behalf that such a sum is just having regard to the “special importance of the appeal”.
- The unsuccessful respondent:
- (i)opposes any order for costs against it; and
- (ii)in the alternative, submits any costs should be on the basis of the applicable scale in Sch 2 of the Justices Regulation 2014 (Qld).
- (iii)It is unnecessary to set out relevant statutory provisions, being ss 226 and 232A of the Justices Act 1886 (Qld) and Sch 2, Pt 1 of the Justices Regulation.
- In essence:
- (i)costs are in my discretion, to be determined as I think just;
- (ii)costs are to be awarded only in accordance with the scale set out in Pt 2 of Sch 2 of the Justices Regulation 2014 (Qld), provided however that I may allow a “higher amount for costs” if to do so is “just having regard to the special difficulty, complexity or importance of the appeal.”
- The appellant submits the appeal was of “special importance” so as to justify my exercising my discretion to make an award of costs higher than the amount that can be awarded under the scale.
- The concept of “special importance” was considered by Randerson J in Interclean Industrial Services Limited v Auckland Regional Council  3 NZLR 489. His Honour said that where the term is used in such circumstances:
“It is not enough simply to say the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered.”
- In Whitby v Stockair Pty Ltd & Anor  QDC 79 Farr SC DCJ said that to invoke special importance the case must be of general importance and not just important to the individual litigant. Issues of law or public interest can often be involved.
- The appellant submits that this is such a case, dealing with whether a complaint was sufficient to confer jurisdiction or whether failure to allege sufficient factual matters made the complaint a nullity.
- The respondent submits:
- (i)That the matter raised on the appeal had been the subject of submissions by the appellant in a number of different matters.
- (ii)It is said that the appellant is effectively “using the same resources” as it has done previously. In particular, reference is made to a decision of Magistrate Lee in Guilfoyle v Niepe Constructions Pty Ltd  QMC 1 where his Honour heard similar arguments as were put on this appeal. He came to a different conclusion to me. That matter is, I was told, also the subject of an appeal but it has not yet been argued. It is said by the respondent that “all of the work which went towards preparing the written submissions in those matters below were simply picked up and carried forward in this appeal.”
- (iii)It was submitted that the absence of senior counsel on the occasion of the Magistrates Court hearing in this matter is an indication the matter, said now to be of sufficient importance to justify a description of it as “of special difficulty, complexity or importance” was not considered a matter of special importance so as to justify senior counsel in the Magistrates Court.
- Having regard to those matters it is said by the respondent the matter therefore “had significantly less difficulty or complexity by the time it came before this court in this appeal”. I do not see why that is so. It seems to me that the argument before the Magistrates Court, and in my court, were essentially the same. In my view however it could not be said that the distillation of the argument in the Magistrates Court below made the argument before me less complex, difficult or significant. In my view the argument was no more nor less difficult than it was before the Magistrates Court.
- The respondent also relies on the fact that the matter is of importance in a number of prosecutions and submits, this effectively means the appellant as prosecutor has on a number of occasions made the same fundamental error of inadequately setting out the factual elements of the alleged offence.
- It was submitted that the appellant’s error in appropriately wording the complaint as he did does not raise the issue of whether to allow the appeal to an issue of fundamental importance. Put simply it was said the appeal does not concern “fundamental principles underpinning the criminal justice system”. It was said the complexity of the matter only arose because the appellant adopted a particular practice of pleading in the complaint which ignored fundamental common law principles.
- The respondent in paragraph 16 of its submissions, said:
“A matter does not become one of special importance because if it is not successfully argued it has serious consequences for the prosecutor who has failed to comply with what was a long-standing practice concerning to what [sic] was contained in complaints.”
- In my view that submission ignores the significant public interest – quite separate from the consequences for the prosecutor itself – in ensuring that those who may have committed offences, and against whom proceedings are properly commenced within time, are not able to avoid a judicial determination of the matter without proper legal reason.
- An issue that arose concerned another closely related matter that I have already referred to – Guilfoyle v Niepe Constructions Pty Ltd. The applicant, who was the defendant in Niepe Constructions, sought costs of proceedings in the Magistrates Court and sought them above scale. Those orders were opposed by the complainant, Aaron Guilfoyle, as it was said the matter was not of special difficulty, complexity or importance.
- It is also of interest that the same counsel involved in the appeal before me were also involved in that case.
- The parties therefore took up entirely opposite positions to those that they now submit for.
- Ultimately in that case, the learned Magistrate awarded costs above scale against the prosecutor, finding the matter was of “special importance”.
- Counsel for the respondent submitted to me:
“It ought to be seen as a highly unacceptable practice, and a disingenuous tactic for the Appellant, as an officer of the Court and a model litigant, to contend in one matter where it suits his advantage, to contend that this very kind of matter is not of one [sic] special difficulty, complexity or importance, but to contend for the opposite finding in this matter because it is he who is seeking his costs now”.
- In my view, it is quite wrong to describe the appellant’s approach as disingenuous, particularly as each party’s legal representatives are submitting for the opposite than what they sought in the Magistrates Court in Niepe Constructions. I also think it is wrong to describe the appellant’s seeking such costs as it has as “highly unacceptable”.
- The position might have been otherwise if the learned Magistrate had not decided the issue as he did in Niepe Constructions. But in circumstances where the Magistrate has decided an issue as here arose was properly classified as of special difficulty, complexity or importance in that matter, there is in my view nothing wrong in the prosecution submitting for the order it now seeks. In my view, issues surrounding his being model litigant did not gainsay his arguing, as he has here, for an order for costs not inconsistent with the judicial determination subsequently made in the Magistrates Court in Niepe Constructions.
- In my view there is every reason to award costs to follow the event and therefore the issue which remains is to be determined by me by considering whether the matter should be properly classified as one of special importance.
- In my view it is. It involves important principles of law. Senior counsel for the respondent in fact submitted that the position I have adopted was one fundamentally contrary to the law in this State. The matter also involved a prosecution which is I believe of some significant importance although I was told very little of the actual circumstance of the alleged incident.
- In those circumstances I have considered and accept the written submissions of counsel for the appellant. In particular, I determine:
- That in accordance with scale, uplifted 20 percent pursuant so s 4 of Sch 2 of the Justices Regulation, the appropriate fee for instruction, preparation, one day’s hearing of the appeal and court appearance to receive judgment is $2,100.
- It is appropriate to uplift this amount to $6,300, utilising a multiplier of 3.
- It was appropriate to brief senior counsel and the junior, who incidentally prosecuted the matter below, and consistent with the approach of Shanahan SC, DCJ in Hickey v CMC  QDC 340 to utilise the rates for counsel outlined in the Federal Court “National Guide to Counsel’s Fees”.
- Consistent with that guide the appellant sought costs for counsel in the sum of $7,650. In fact counsel’s fees were some $21,780. The claim is in my view reasonable.
- In my view therefore the respondent ought to be ordered to pay the appellant’s costs of the appeal fixed in the sum of $13,950, being $6,300 for legal professional work and $7,650 for counsel.
- I will in respect of matter order, in lieu of order two on Guilfoyle v J Hutchinson Pty Ltd  QDC 221:
- The appeal is allowed.
- The order of the Magistrate striking out the complaint is set aside.
- The matter is remitted to the Magistrates Court to the same Magistrate to determine paragraph 2 of the defendant’s application filed, 15 December 2020.
- If required, the matter then be remitted to a Magistrate other than the Magistrate who determined the matter initially to proceed according to law.
- The respondent to pay the appellant’s costs of the appeal fixed in the sum of $13,950.
- Published Case Name:
Guilfoyle v J Hutchinson Pty Ltd
- Shortened Case Name:
Guilfoyle v J Hutchinson Pty Ltd
 QDC 233
21 Sep 2021