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Cummins v Guilfoyle[2021] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Cummins v Guilfoyle [2021] QDC 248

PARTIES:

ROLAND CUMMINS

(appellant)

v

AARON JOHN GUILFOYLE

(respondent)

FILE NO:

Appeal No 153 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

8 October 2021

DELIVERED AT:

Cairns

HEARING DATE:

On the papers

JUDGE:

Morzone QC DCJ

ORDER:

  1. The respondent will pay the appellant’s costs of the appeal assessed at $4,135.33 within 60 days unless a longer period is agreed by the parties.

CATCHWORDS:

CRIMINAL LAW – APPEAL – COSTS – appeal pursuant to s 222 Justices Act 1886 – appeal allowed – appellant acquitted and discharged – test whether costs award is just – whether some special difficulty, complexity or importance – assessment pursuant to the scale in the Justices Regulation 2014 (Qld).

LEGISLATION:

Justices Act 1886 (Qld), ss 222, & 226

Justices Regulation 2014 (Qld), s 232

Work Health and Safety Act 2011 (Qld) s 190

CASES:

Latoudis v Casey (1990) 170 CLR 534

Scanlon v Queensland Police Service [2011] QDC 236

COUNSEL:

T Ryan for the Appellant

SOLICITORS:

Hall Payne Lawyers for the Appellant

The Office of the Work Health and Safety Prosecutor for the Inspector

Introduction

  1. [1]
    The appellant applies for costs in the wake of the successful appeal against conviction pursuant to s 222(1) of the Justices Act 1886 (Qld), subject of the decision delivered on 25 June 2021.

Costs

  1. [2]
    The appellant argues that costs should follow the event.  On the contrary, the respondent contends that a costs award would not be just.
  2. [3]
    Section 226 of the Justices Act 1886 (Qld) provides that a judge may make such an order as to the parties’ costs incurred in the bringing of an appeal under s 222 as the judge thinks just.  The discretion must be exercised judicially,[1] to compensate a successful party, and not by way of punishment of the unsuccessful party.[2]
  3. [4]
    The appellant was successful in his appeal against conviction for intimidating a work health and safety inspector at a construction site contrary to s 190 of the Work Health and Safety Act 2011 (Qld).  I found that the reasons for decision below were inadequate to support the verdict, and I am bound to allow the appeal against the conviction.  On appellate review I found that the defects in the evidence about the element of intimidation at the original hearing are such that, taken at its highest, a court would have reasonable doubt about intimidation to entitle the appellant to an acquittal.  In all the circumstances, I declined to remit the matter to for retiral.
  4. [5]
    The nature and complexity of the proceeding is evident from the appeal judgment and reasons.  The merits of the appeal were relatively strong and supportable by sound law and able argument.  The appellant endured the prosecutorial rigour at the original trial.  The offending conduct was relatively minor in nature and seriousness.  The conduct of the parties in the proceeding was generally appropriate, and the material errors found on appeal were not attributable to the conduct of either party.  On review though, I concluded that the defects in the evidence at the original hearing as to intimidation would not sustain a conviction.  The time between the original hearing, sentence and this appeal extends about one and a half years.  The appeal was opposed on all grounds.  The appellant had endured appellate proceedings and prolonged apprehension, costs, delay and inconvenience. 
  5. [6]
    In the circumstances of this case, it would be inequitable for the appellant to bear the financial burden of the successful recourse to this court and it would be just and compensate him for his appeal costs. 
  6. [7]
    In the circumstances, I will order the respondent pay the appellant’s costs of the appeal. 

Assessment

  1. [8]
    Pursuant to s 232A of the Act and the Justices Regulation 2014 (Qld), in deciding the costs that are just the judge may award costs only:
    1. (a)
      in relation to an item allowed for under the scale of costs that is contained within Schedule 2 of the regulation; and
    2. (b)
      up to the amount allowed for that item under the scale.
  2. [9]
    These are global items for all legal professional work.[3]  For an appeal to a District Court judge, an uplift of 20% of the scale costs may be allowed for legal professional work.[4] 
  3. [10]
    Pursuant to s 232A(2) of the Act, a judge may only allow a higher amount for costs if satisfied that the higher amount is just because the appeal involved some special difficulty, complexity or importance. 
  4. [11]
    There is no dispute about the assessment of professional fees as follows:

30/10/2020

Review Mention

$300.00

20/04/2020

Review Mention

$300.00

20/05/2021

Appeal Hearing

$1,800.00

Total Professional fees

$2,400.00

  1. [12]
    However, as to assessment, the respondent opposes the appellant’s full claim of $2,945.21 for disbursements calculated as follows:

16/12/2020

Law in Order (counsel’s Brief)

$72.88

14/05/2021

Law in Order (authorities)

$351.78

19/05/2021

Airport Parking

$49.00

19/05/2021

Flights Brisbane to Cairns (counsel and instructing solicitor)

$1,475.78

19/05/2021

Taxi from Cairns Airport

$21.74

19/05/2021

Accommodation (counsel and instructing solicitor)

$387.08

20/05/2021

Taxi to Cairns District Court

$8.93

20/05/2021

Taxi to Cairns Airport

$21.11

20/05/2021

Flights Cairns to Brisbane (counsel and instructing solicitor)

$556.91

Total Disbursements

$2,945.21

  1. [13]
    The respondent disputes the amounts claimed for travel and accommodation attributed to the instructing solicitor on the grounds that such expenses are limited to “a lawyer acting as advocate” under Sch 2 Part 3 of the Regulation, and therefore confined to counsel.  The respondent also disputes as unreasonable the claim for copying undertaken by an external source.  Accordingly, the respondent submitted that a lesser sum of $1,310.67 should be allowed.
  2. [14]
    I am not persuaded that disbursements for the instructing solicitor beyond the scale items are either allowable or just in the circumstances of the appeal.   However, I will allow photocopying claimed at the commercial rate.  Section 232 of the Act requires the order to state the time within which such costs are to be paid.
  3. [15]
    Therefore, I fix the amount of costs at $4,135.33, comprising legal fees of $2,400.00 and disbursements at $1,735.33.  Subject to any further submissions I think 60 days for payment is reasonable but the parties otherwise agree on a longer payment period.

Order

  1. [16]
    Therefore, in accordance with the judgment allowing the appeal on 25 June 2021, I will further order the respondent will pay the appellant’s costs of the appeal assessed at $4,135.33 within 60 days, unless a longer period is agreed by the parties.

Judge Dean P Morzone

Footnotes

[1]Latoudis v Casey (1990) 170 CLR 534.

[2]Scanlon v Queensland Police Service [2011] QDC 236.

[3]Schedule 2, Part 1, Item 2 Justice Regulation 2014.

[4]Schedule 2, Part 1, Item 4 Justice Regulation 2014.

Close

Editorial Notes

  • Published Case Name:

    Cummins v Guilfoyle

  • Shortened Case Name:

    Cummins v Guilfoyle

  • MNC:

    [2021] QDC 248

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    08 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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