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Hennessy v Comptroller General of Customs (No. 2)[2022] QDC 146

Hennessy v Comptroller General of Customs (No. 2)[2022] QDC 146

DISTRICT COURT OF QUEENSLAND

CITATION:

Hennessy v Comptroller General of Customs (No. 2) [2022] QDC 146

PARTIES:

DANIEL HENNESSY

(appellant)

v

COMPTROLLER GENERAL OF CUSTOMS

(respondent)

FILE NO/S:

121/21

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

23 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2021

JUDGES:

Rinaudo AM DCJ

ORDER:

  1. The appellant pay the respondent’s costs to be assessed on the standard basis, if not agreed.

CATCHWORDS:

PROCEDURE – SECTION 222 APPEAL – COSTS – whether the provisions of the Justices Act 1886 (Qld) are superseded by the broad and unfettered discretion provided by s. 263 of the Customs Act 1901 (Cth) which adopts the costs regime under the Uniform Civil Procedure Rules 1999 (Qld) – in the alternative, whether the matter involved “special difficulty, complexity or importance”

LEGISLATION:

Customs Act 1901 (Cth), ss. 244, 247, 263

Uniform Civil Procedure Rules 1999 (Qld), Rule 681

Justice Act 1886 (Qld), ss. 226, 232A

Justices Regulation 2014 (Qld), Schedule 2

CASES:

Baker v Smith (No 2) [2019] QDC 242

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd and Others (No 2) [2006] QSC 040

Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 233

Hickey v CMC [2008] QDC 240

Interclean Industrial Services Limited v Auckland Regional Council [2002] 3 NZLR 489

Oschlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

C. Copley for the respondent

SOLICITORS:

Australian Government Solicitor for the respondent

Introduction

  1. [1]
    On 12 November 2021, I delivered judgment in this matter and ordered that the appeal of the learned Magistrate’s decision be dismissed. On 25 November 2021, I directed the parties to file and serve written submissions on costs.
  2. [2]
    On 3 December 2021, the respondent filed submissions on costs and a sworn affidavit of Australian Government Solicitor lawyer, Madeleine King, detailing the relevant chronology of the matter.
  3. [3]
    The appellant filed no material on the question.
  4. [4]
    The respondent seeks an order that the appellant pay the respondent’s costs in an amount to be assessed on the standard basis, or alternatively, in an amount fixed at $16,800.00 within 60 days.

Respondent’s arguments on costs

  1. [5]
    As a general rule, costs of a proceeding are in the discretion of the Court but follow the event unless the Court otherwise orders.[1] This rule reflects the important principle that a successful litigant is generally entitled to an award of costs. A convenient starting point is McHugh J’s well-known statement in Oschlack v Richmond River Council (1998) 193 CLR 72 at 97:[2]

The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.

[underlining added]

  1. [6]
    In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd and Others (No 2) [2006] QSC 040 at [60], Fryberg J said that “[t]here is no reason why costs should not follow the event”.
  2. [7]
    As the respondent explained in its submissions, these proceedings are a ‘customs prosecution’ ‘for the condemnation of…goods seized as forfeited’, pursuant to s. 244(b) of the Customs Act 1901 (Cth). The respondent submits that the Court’s power to award costs on appeal does not stem from ss. 226 and 232A of the Justices Act 1886 (Qld) because:[3]

13.1 a customs prosecution commenced, prosecuted and proceeded in the Magistrates Court continues to be “proceeded with” on appeal – and section 247 provides that customs prosecutions be “proceeded with…in accordance with the usual practice and procedure of the Court in civil cases” in the absence of a Practice Direction from this Honourable court.

13.2 although pursuant to section 248 of the Customs Act, “an appeal shall lie…in the manner provided by the law” of Queensland, the bringing of such an appeal is “subject to the provisions of” the Customs Act. Section 263 of the Customs Act expressly provides for an award of costs without fetter, and includes provision for recovery.

[underlining in original]

  1. [8]
    Section 247 of the Customs Act 1901 (Cth) relevantly provides:

Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.

[underlining added]

  1. [9]
    Section 263 states:

In a Customs prosecution, whether commenced before or after the commencement of this section, a court may award costs against a party, and, where an amount of costs is awarded against a party other than the prosecutor, section 259 and any provision of a law of a State or Territory that, by virtue of an Act other than this Act, applies in relation to the recovery of pecuniary penalties under this Act apply in relation to the recovery of the amount of costs so awarded as if it were a pecuniary penalty adjudged to be paid by the party under this Act.

  1. [10]
    It is contended that the provisions of the Justices Act 1886 (Qld) dealing with costs on appeal are superseded by the broad and unfettered discretion provided by s. 263 of the Customs Act 1901 (Cth) which, pursuant to s. 247, adopts the costs regime provided by the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).[4]
  2. [11]
    The respondent submits that it is therefore appropriate that the appellant pay the respondent’s costs, to be assessed on the standard basis.[5]
  3. [12]
    The respondent further submits that, in the alternative, the costs provisions in Part 9 of the Justices Act 1886 (Qld) apply. Section 226 provides that the Judge may make such order as to costs to be paid by either party as the Judge may think just.
  4. [13]
    Section 232A of the Justices Act 1886 (Qld) states:
  1. (1)
    In deciding the costs that are just for this division, the judge may award costs only—
  1. (a)
    for an item allowed for this division under a scale of costs prescribed under a regulation; and
  1. (b)
    up to the amount allowed for the item under the scale.
  1. (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.
  1. [14]
    The respondent submits the appeal was of “special difficulty and complexity” so as to enliven the exercise of my discretion to make an award of costs higher than the amount that can be awarded under the scale.
  2. [15]
    The respondent, in my view, correctly adopts the analysis of Porter QC DCJ in Baker v Smith (No 2) [2019] QDC 242.[6] His Honour observed at paragraphs [227]-[229]:

[227] There are three points which need first to be articulated:

  1. (a)
    First, the statute’s requirement that the case be of special difficulty, complexity or importance begs the question: In comparison to what? In my view, the comparison must be to the difficulty, complexity or importance of the ordinary run of cases heard and determined under the Justices Act on complaint;
  1. (b)
    Second, the appellant in written submissions emphatically emphasised the case must be of special difficulty etc. I agree that the question is not whether the case is difficult, complex or important compared to the ordinary case, but whether it is especially so; and
  1. (c)
    Third, whether a case has that character involves an assessment of all the relevant circumstances. There is no rule that all cases of a particular kind are, or are not, of this character. It is a judgment to be made on a case by case basis.

[228] Judge Farr’s decision in Cullinan v McCahon [2014] QDC 120 is consistent with these propositions. His Honour was dealing there with an application for costs in a matter where the case involved a single charge of wrongly granting a building approval by a private certifier. It was put to his Honour that special complexity or difficulty arose because the charge involved statutory complexity, took considerable work and effort to meet and was brought wrongly in some technical respects and without sufficient particulars. Nothing was put before his Honour as to the practical consequences of the complexity of the statutory scheme nor of the extent of the work and effort alleged. Given there was one charge and the application lasted only a few hours, it is not surprising that his Honour refused to impose costs greater than scale costs.

[229] His Honour observed:

[20] Unfortunately for the appellant, I do not agree that the case was one which involved special difficulty, complexity or importance.

[21] There is no doubt that it was a matter that had a degree of difficulty and/or complexity attached to it. The question however is whether it amounted to special difficulty or complexity.

[22] “Special” is relevantly defined in The Macquarie Dictionary as “extraordinary; exceptional; exceptional in amount or degree.”

[23] The Macquarie Dictionary Online defines it as “distinguished or different from what is ordinary or usual”.

[24]  Examples of cases where special difficulty or complexity was found to exist are Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169 (‘Lucy No 2”) in reference to Lucy v OCC Holdings Pty Ltd [2008] QDC 004 and Morley v Senewiratne & Anor [2008] QDC 296. These cases involved detailed legal argument by Senior Counsel in hearings that lasted for days. Whilst the length of the hearing and the fact that Senior Counsel was briefed is not determinative of a finding that a matter involves special difficulty, complexity or importance, it can nevertheless be a relevant consideration in the determination of such an issue. In this matter, the application before the Magistrate only lasted for a few hours and did not involve any issues that were out of the ordinary.

[25] For instance, it can hardly be said that a matter involves special difficulty or complexity simply because the relevant legislation is complex. If that was the criteria for assessing the issue, then the absurd consequence would be that all matters that come before the court under that legislation would fall into the category of having special difficulty or complexity. Whilst the relevant legislation in this matter might have some complexity to it, in my view the charge was quite straightforward in nature and its particulars were brief and neither suggested an especially difficult or complex case.

[26] It may well have been the case that it was a charge that required considerable work and effort to meet, but, once again that does not suggest any special quality. All charges require work and effort on the part of a defendant and his/her legal representatives. The degree will of course vary from case to case. I am not persuaded that the degree required in this matter was specially onerous, difficult or complex. Whilst I appreciate that the appellant’s legal representative submitted to the contrary, it appeared to me that he had an unfortunate tendency to overly complicate relatively simple concepts.

[footnotes omitted]

  1. [16]
    I note that in Interclean Industrial Services Limited v Auckland Regional Council [2002] 3 NZLR 489, Randerson J held:

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.

  1. [17]
    The respondent, at paragraph [20] of its submissions, outlines the circumstances giving rise to the special difficulty or complexity as follows:

20.1 The appellant’s grounds of appeal, submissions and proposed further evidence were, all, very nebulous in form and substance. More particularly:

20.1.1. The grounds of appeal set out in the notice of appeal did not match the substance, such as it was, of the appellant’s submissions.

20.1.2. The appellant’s submissions, generally, were poorly delineated, barely ordered and repetitive. They traversed a range of matters, none of which was demonstrated to be meritorious.

20.1.3. At least initially, the appellant’s proposed further evidence was not filed in any affidavit. No cogent argument according to law was expressed as to why any aspect of the evidence ought have been admitted. None of the evidence was shown to be admissible on the appeal.

20.1.4. The appellant’s submissions and proposed further evidence were filed in two tranches.

Initially, as the appellant failed to articulate his own grounds of appeal and submissions in a proper way, the respondent was required to analyse all of the material initially filed by the appellant especially closely, to attempt to discern the potential issues raised. In turn, the respondent had to “cover the field” in recasting the appellant’s grounds of appeal and submissions as a series of potential propositions that then could be addressed.

So, the respondent effectively had to undertake a large proportion of the work that the appellant ought have undertaken himself.

As the appellant was self-represented, no other course was reasonably open to the respondent (such as requesting that the appellant properly recast his own submissions in a timely way).

20.1.5. The second tranche of submissions and proposed further evidence (filed very close to the hearing of the appeal) had similar organisational and substantive defects to the material filed initially. That further material was not only inherently difficult but it required a close comparison to, and synthesis with, the welter of material initially filed.

20.1.6. Despite the nebulous, confused state of the appellant’s material and the efforts required to marshal it:

20.1.6.1. none of the appellant’s submissions bore merit;

20.1.6.2. the appellant was not granted leave to adduce further evidence in the appeal; and

20.1.6.3. the appeal was brought in the face of the learned Magistrate’s straightforward application of the law to the evidence before him.

20.2. Delay was caused by the appellant, via:

20.2.1. Five extensions of time granted to the appellant to file his outline of argument.[7]

20.2.2. The appellant’s failure to file and serve an outline of argument in accordance with Judge Moynihan QC’s orders, dated 8 March 2021.[8]

20.2.3. The appellant’s failure to appear before the Court for mentions (on 19 April and 20 May 2021) which ultimately required further mentions to be listed.[9]

  1. [18]
    In the affidavit of Madeleine King sworn 3 December 2021, Ms King deposes to reviewing the Australian Government Solicitor’s time and accounting records in relation to the costs incurred by the respondent from 14 January 2021 (the date on which the appellant filed a notice of appeal), up to and including 12 November 2021 (the date on which I delivered judgment). She identifies that the Australian Government Solicitor’s professional fees for this period are $15,800 and Counsel’s fees are approximately $16,268.21 (excluding GST).[10]
  2. [19]
    The respondent submits that at the very least, it is appropriate for the Court to order that the appellant pay the respondent’s costs in the sum of $16,800 only, in accordance with the method adopted by Reid DCJ in Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 233 being:[11]
    1. (a)
      Australian Government Solicitor’s professional fees calculated in accordance with Schedule 2 of the Justices Regulation 2014 (Qld), uplifted utilising a multiplier of 3; and
    2. (b)
      Counsel’s fees at the high end of the scale for junior counsel, consistent with the approach of Shanahan DCJ in Hickey v CMC [2008] QDC 240 to utilise the rates for counsel outlined in the Federal Court “National Guide to Counsel’s Fees”, in the sum of $5,100.

Decision

  1. [20]
    Having had the opportunity to review the material on costs filed on behalf of the respondent, the questions to be determined by me are:
    1. (a)
      whether the respondent’s submission that the provisions of the Justices Act 1886 (Qld) dealing with costs on appeal are superseded by the broad and unfettered discretion provided by the Customs Act 1901 (Cth) which adopts the costs regime provided by the UCPR, is correct; or
    2. (b)
      alternatively, if the costs provisions of the Justices Act 1886 (Qld) do apply, whether the matter should be properly classified as one of special importance.
  2. [21]
    In my view, the respondent’s interpretation of the effect of the provisions of the Customs Act 1901 (Cth) on the Justices Act 1886 (Qld) is correct. I am therefore not required to consider the question of special importance.
  3. [22]
    In any event, I find that the appeal was not of special complexity, difficulty or importance. Although the appellant’s vague and misconceived submissions on appeal and delay in filing and serving its material may have frustrated the respondent and caused it to spend more time on the matter, such issues are not uncommon in s 222 appeals, particularly those involving self-represented litigants, and do not amount to any special difficulty or complexity.
  4. [23]
    Having reached that conclusion, I accept the written submissions on behalf of the respondent and order that the appellant pay the respondent’s costs to be assessed on the standard basis, if not agreed.

Footnotes

[1] Uniform Civil Procedure Rules 1999 (Qld) Rule 681.

[2] See Respondent’s Submissions on Costs at [6].

[3] Respondent’s Submissions on Costs at [13].

[4] Ibid at [14].

[5] Ibid at [16].

[6] This analysis was also adopted by Jarro DCJ in Logan City Council v Brookes (No 2) [2020] QDC 221 at [36].

[7] See Affidavit of Madeleine King sworn 3 December 2021 at annexures MCMK-10, MCMK-12 and MCMK-19.

[8] Ibid at [10]-[12].

[9] Ibid at annexures MCMK-15 and MCMK-18.

[10] Ibid at [27].

[11] Respondent’s Submissions on Costs at [23].

Close

Editorial Notes

  • Published Case Name:

    Hennessy v Comptroller General of Customs (No. 2)

  • Shortened Case Name:

    Hennessy v Comptroller General of Customs (No. 2)

  • MNC:

    [2022] QDC 146

  • Court:

    QDC

  • Judge(s):

    Rinaudo AM DCJ

  • Date:

    23 Jun 2022

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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