Jorgensen v Attorney-General (No 2)
[2021] QDC 35
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Jorgensen v Attorney-General (No 2)[2021] QDC 35
- Add to List
Jorgensen v Attorney-General (No 2)[2021] QDC 35
Jorgensen v Attorney-General (No 2)[2021] QDC 35
DISTRICT COURT OF QUEENSLAND
CITATION: | Jorgensen v Attorney-General for the State of Queensland (No 2) [2021] QDC 35 |
PARTIES: | ALAN BRADLEY JORGENSEN (appellant) v ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent) |
FILE NO: | Appeal No 3054 of 2018 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 23 March 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Sheridan DCJ |
ORDER: | There be no order as to costs. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – whether respondent should pay appellant’s costs of the successful appeal |
LEGISLATION: | Legal Profession Act 2007 (Qld), s 6 Justices Act 1886 (Qld), s 226, s 232, s 232A Justices Regulation 2014 (Qld), Schedule 2 |
CASES: | Cachia v Hanes (1994) 179 CLR 403, followed Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, followed Jorgensen v Attorney-General for the State of Queensland [2020] QDC 6, cited Worchild v Petersen [2008] QCA 26, followed |
SOLICITORS: | Self-representation by the appellant Crown Law for the respondent |
Background
- [1]On 17 February 2020,[1] I gave my substantive decision allowing the appeal. I made orders permitting Mr Jorgensen and the Attorney-General to make further submissions and file supporting material with respect to Mr Jorgensen’s application for his costs of the appeal.
- [2]Submissions and an affidavit from Mr Jorgenson were subsequently filed. The affidavit set out the costs claimed, but very few documents were annexed. It did not swear to the fact that Mr Jorgensen actually paid any costs.
- [3]In view of the paucity of material in support of the application for costs, the appeal was further mentioned on 9 April 2020. At that hearing I explained to Mr Jorgensen that he needed to properly prove the costs claimed if he wished to have an order made in his favour. Orders were made permitting him to file further affidavit material supporting his claim for costs.
- [4]An email was sent by my associate to Mr Jorgensen dated 8 December 2020 confirming that no material had been received. By email dated 8 December 2020, Mr Jorgensen indicated that he would have material by the end of the week. That was now some 14 weeks ago and no further material has been provided.
Statutory Provisions
- [5]Section 226 of the Justices Act 1886 (Qld) (Justices Act) provides that the “judge may make such order as to costs to be paid by either party as the judge may think just.”
- [6]The term “costs” is not defined.
- [7]Limitations are imposed under the Justices Act on the otherwise broad discretion in s 226. Section 232A(1) requires that, in making any order as to costs, any costs allowed must relate to an item prescribed under a regulation. The items are prescribed in Schedule 2 of the Justices Regulation 2014 (Qld) (Justices Regulation). By s 232A(2) the judge has a discretion to allow a higher amount for costs if “satisfied the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.”
- [8]Section 232A of the Justices Act provides:
“(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.”
- [9]The effect of sub-sections (1) and (2) when read together, is that the cost must be in relation to an item in the Schedule. It is only in respect of such a cost that the judge may allow a higher amount.
- [10]Part 2 of Schedule 2 of the Justices Regulation relates to costs allowable for legal professional work and Part 3 of the Schedule is headed “Disbursements (including disbursements to witnesses and interpreters).”
- [11]Section 5 of Schedule 2, Part 3, of the Justices Regulation in allowing costs under this Part provides:
“Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.”
- [12]In the case of self-represented litigants, that expression has been interpreted as being “limited to out-of-pocket expenses comprising any filing fees and other court costs paid by him.”[2] Mr Jorgensen was self-represented.
- [13]In Cachia v Hanes the plurality reaffirmed the original basis upon which “costs are ordinarily awarded, namely, as an indemnity for legal costs actually incurred.”[3]
- [14]
“Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.”
Claimed Costs
- [15]In his costs submissions, Mr Jorgensen claimed an amount of $7905 + GST said to be made up from:
- (i)Alexander Law, Brisbane, Sam Iskander, Principal 2.5 Hrs @ $550 + GST = $1,512 = gst
- (ii)Quinn and Scattini solicitors Brisbane, Russell Lenahan, Principal 1 Hr = $620 + gst
- (iii)Madgwicks solicitors Melbourne Peter Kennedy Principal 2 Hrs x $635 = $1,270 + gst
- (iv)Pranav Prabhakaran Cairns solicitor inc visit in jail, getting transcripts etc 4 hrs $180=$720 + gst
- (v)Auscript Transcript Fees $737
- (vi)Airfares Cairns to Brisbane $548
- (vii)Taxis and Trains $190
- (viii)Printing and Scanning costs $130
- (ix)Telephone calls from Lotus Glen and overseas and local $200
- (x)Express Postage $160
- (xi)Secretarial Costs of Kris Hutchinson in collating Appeal docs and extracting from 5 days Transcripts 22 Hrs @$75 = $1,650
- (xii)Qld SC Library Costs of Researching Self Rep Litigants Costs $168.
- (i)
Alleged Legal Costs
- [16]By items [i] to [iv], Mr Jorgensen seeks the costs of legal practitioners whom he says provided advice regarding the appeal. Whilst Mr Jorgensen was not represented on the hearing of the appeal, he says he obtained advice from a number of lawyers.
- [17]In relation to items [i] to [iii], Mr Jorgenson has not provided any invoices issued by the solicitors in any respect nor any proof of payment. There is nothing detailing the work performed by the solicitors which would enable any assessment as to whether the work performed could be said to be in relation to his appeal.
- [18]In terms of item [iv], there is an invoice attached to the affidavit of Mr Jorgensen under the letterhead of Pranav Migration and Education Services, but it is described as a “draft invoice” and as being “for providing copying, mailing and administrative services to Mr Alan as per instructions.” The draft invoice does not suggest that Pranav Migration and Education Services is a legal firm able to provide legal services or that they were providing legal services to Mr Jorgensen such that the fees could be included as outlays incurred by his legal representatives on his behalf. There is again no proof that it has been paid.
- [19]Part 2 of Schedule 2 of the Justices Regulation allows the judge to award costs to the successful appellant for the legal professional work necessary or proper during the appeal. However, without any itemised invoices, I cannot be satisfied that the work performed by any of the legal practitioners referred to in his affidavit related to this appeal.
Alleged Out of Pocket Expenses
- [20]By items [v] to [xii], Mr Jorgensen seeks various out of pocket expenses.
- [21]Items [vi] to [xii] are clearly not recoverable under the legislation.
- [22]In any event, apart from one item, no attempt was made to prove the costs. In his supporting affidavit sworn 17 March 2020, Mr Jorgensen states that, “The non-solicitor costs shown above are best estimates and reasonable given the sheer amount of work that had to be put into trying to deal with this extreme miscarriage of justice ….” He states that he “should not now have to prove every last dollar of my predictable expenses, with receipts etc.”
- [23]The only item which was the subject of attempted proof was said to be payable upon receipt of the costs from the respondent. Despite the further hearing and the order made on 9 April 2020, Mr Jorgensen has not provided any further proof of his expenses or payment.
- [24]Item [v], the Auscript Transcript fees, could perhaps be recoverable as being a “court fee.” Mr Jorgensen has not, however, proved what amount, if any, was payable or that he paid an amount to Auscript. He attached to his affidavit an estimate of costs for the transcript provided to Pranav Prabhakaran by Auscript but the estimate stated that it was provided for the purpose of calculating the deposit and the final invoice could be higher than the estimate. The estimate states “if you wish to proceed with your order, please respond in writing to confirm your acceptance of this estimate.”
- [25]The affidavit included an email from Auscript to Pranav Prabhakaran which referred to an Auscript invoice attached and the email is headed “Auscript Invoice: 300411966” but the affidavit did not include that invoice. The inference from the email is that a deposit was paid, but there is nothing to indicate the amount of the deposit. To complicate the matter further, Mr Jorgensen refers to him being entitled to a fee waiver for other transcripts. In any event Mr Jorgensen has failed to provide, despite request, proof of any payment.
Conclusion
- [26]In the circumstances, there are no items in respect of which it is possible to make a costs order.
- [27]Accordingly, the appropriate order is that there be no order as to costs.
Footnotes
[1]Jorgensen v Attorney-General for the State of Queensland [2020] QDC 6.
[2]Worchild v Petersen [2008] QCA 26 at [4] confirmed in Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 (Merrin); following Cachia v Hanes (1994) 179 CLR 403 at 410 - 11.
[3]Cachia v Hanes (1994) 179 CLR 403 at 414.
[4]Merrin [2012] QCA 181 at [3].