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Short v Queensland Police Service[2023] QDC 131

Reported at (2023) 3 QDCR 168

Short v Queensland Police Service[2023] QDC 131

Reported at (2023) 3 QDCR 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Short v Queensland Police Service [2023] QDC 131

PARTIES:

NATHAN SHORT

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

2842/22

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Sandgate Magistrates Court

DELIVERED ON:

27 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2023

JUDGES:

Smith DCJA

ORDER:

  1. The appeal is dismissed.
  2. The order made by the Magistrate is confirmed.
  3. I will hear the parties on the question of costs.

CATCHWORDS:

COSTS – WHERE POLICE OFFERED NO EVIDENCE ON TRAFFIC CHARGES – whether counsel’s fees were recoverable as a disbursement – whether the matter was of particular difficulty, complexity or importance

Justices Act 1886 (Qld) ss 158, 158A, 158B

Justices Regulation 2014 (Qld) s 19 and Sch 2

Transport Operations (Road Use Management) Act 1995 (Qld) s 92 

Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 151A

Baker v R [2004] HCA 45; (2004) 223 CLR 513, applied

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

Bell v Townsend and Ors [2014] QMC 30, cited

Fletcher v Demag Cranes and Components Pty Ltd [2020] QMC 9, not followed

Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 233, cited

Hickey v Crime and Misconduct Commission [2008] QDC 340, cited

Interclean Industrial Services Limited v Auckland Regional Council [2000] 3 NZLR 489, applied

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, cited

Legal Services Commissioner v Dempsey [2007] QSC 270, considered

Merrin v Commissioner of Police [2012] QCA 181, applied

R v A2 & Ors [2019] HCA 35; (2019) 269 CLR 507; 93 ALJR 1106; 373 ALR 214, applied

Seiffert v Commissioner of Police [2021] QCA 170; (2021) 8 QR 415; 291 A Crim R 1, applied

Travers v McDonagh [2013] QDC 177, cited

Whitby v Stockair Pty Ltd [2015] QDC 79, cited

COUNSEL:

J Cremin for the appellant

R Minuti for the respondent

SOLICITORS:

Everyday Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) (“JA”) against a costs decision made on 25 October 2022 in the Sandgate Magistrates Court.  On that occasion, the Magistrate ordered the respondent to pay the appellant’s costs fixed in the sum of $4,250 together with outlays of $2,668.14.
  2. [2]
    The appellant appeals this decision on the following grounds:
  1. The Magistrate erred in finding that counsel’s fees were not a disbursement and therefore not payable;
  2. The Magistrate erred in finding that three adjournments were mentions only;
  3. The Magistrate erred in finding the matter was not of special difficulty, complexity or importance.

Background

  1. [3]
    The appellant was charged with two traffic offences.  Charge 1 alleged that he failed to comply with his duties as a driver involved in a crash contrary to s 93(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld).  The second charge was unsafe lane filtering contrary to s 151A(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).
  2. [4]
    The matter came on for trial on 2 February 2022.  The appellant was self-represented at that stage.  The trial commenced.  Mr Brendan McConnell gave evidence he was driving on Sandgate Road when the appellant’s motorbike hit his side mirror.  There was also damage to the side of his vehicle.  The appellant did not stop.  The appellant cross-examined Mr McConnell suggesting that the damage to his car was already there.  Later in the cross-examination, Mr McConnell said that he had a medical appointment.  Also, the appellant suffered an anxiety attack.  The matter was therefore adjourned until 17 February 2022 for mention.[1]
  3. [5]
    On 17 February 2022, Mr Cremin appeared for the appellant instructed by Everyday Lawyers.  The matter was listed for a resumed hearing on 18 May 2022 with a review date on 21 April 2022.  The matter was reviewed on 21 April 2022 and the trial confirmed.
  4. [6]
    The matter resumed on 18 May 2022.  Mr Cremin continued to cross-examine Mr McConnell as to his criminal history and traffic history.  He was cross-examined as to inconsistencies in his statement.  It was put that the motorbike never hit the mirror nor the car.  It was put the appellant did stop.  It was put Mr McConnell made a false claim on insurance.  It was put that he was the one who travelled at a high speed cutting off the appellant.  The matter was then adjourned until 3 August 2022. 
  5. [7]
    The trial continued on 3 August 2022 with Senior Constable Cabrera giving evidence.  He was cross-examined on inconsistencies in Mr McConnell’s statement. 
  6. [8]
    The matter was adjourned again for further hearing on 31 August 2022.  On 31 August 2022 at the hearing, the Magistrate indicated she had made a finding against Mr McConnell.  The prosecution objected to the Magistrate continuing.  The defence did not really oppose this recusal.  The matter was adjourned part-heard until 7 October 2022. 
  7. [9]
    The matter was mentioned on 6 October 2022 because the police had decided to offer no evidence in the matter.  The matter was then listed for a costs argument on 12 October 2022. 
  8. [10]
    On 12 October 2022, the costs argument proceeded.  Mr Cremin submitted for total costs of $27,000 for counsel fees and $11,918.14 for the solicitor.  The prosecutor submitted that costs were limited in the criminal jurisdiction in light of the provisions of the JA.  The prosecution submitted there was nothing special, difficult or complex about the matter.  Any issues raised were credit issues only.  In reply, Mr Cremin pointed out that his client would be significantly out of pocket.  It was submitted that whilst counsel’s fees were not included in the schedule of costs, they were an outlay.
  9. [11]
    The decision was handed down on 25 October 2022.  Her Honour in making the decision referred to ss 158, 158A and 158B of the JA.  Balancing all factors, Her Honour considered that costs should be awarded.  Her Honour referred to Hickey v Crime and Misconduct Commission[2] noting that the legislature had limited the discretion to award costs.  Her Honour considered that counsel’s fees were not a disbursement and a solicitor could have done the trial.  Her Honour concluded there were four mentions, three days of hearing and ordered costs of $4,250 and outlays of $2,668.14.

Arguments

  1. [12]
    The appellant submits that the Magistrate erred in finding that counsel’s fees were not recoverable as a disbursement.  Her Honour also erred in finding that three of the adjournments were mentions only.  Her Honour also erred in finding that a solicitor could have done the matter.  Her Honour also erred in not finding the matter was difficult or complex. The appellant relied on alleged non-disclosure.
  2. [13]
    The respondent on the other hand, submits that there was no error in the exercise of the Magistrate’s discretion.  It is submitted that counsel’s fees are not recoverable as a disbursement.  It is further submitted the Magistrate did err as to the adjournments, but in favour of the appellant.  It is further submitted that there was no special difficulty, complexity or importance in the matter.

Discussion

  1. [14]
    Section 158 of the JA provides:

“158 Costs on dismissal

  1. (1)
    When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
  1. (2)
    When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.”
  1. [15]
    Section 158A of the JA governs the exercise of the discretion with respect to an award for costs. 
  2. [16]
    Importantly, s 158B provides:

“158B Costs for division

  1. (1)
    In deciding the costs that are just and reasonable for this division, the justices 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 justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”
  1. [17]
    Turning to the Justices Regulation 2014, s 19 provides that the scale of costs is in  Schedule 2:

“Schedule 2 Scale of costs for Act, part 6, division 8 and part 9, division 1

section 19

Part 1 General

1 Scale sets out amounts up to which costs may be allowed

This scale sets out—

  1. (a)
    the only items for which costs may be allowed for part 6, division 8 and part 9, division 1 of the Act; and
  1. (b)
    the amount up to which costs may be allowed for each item.

Note—

A higher amount for costs may be allowed under section 158B(2) or 232A(2) of the Act.

2 Item of costs covers all legal professional work

An item in part 2 covers all legal professional work, even if the work is done by more than 1 lawyer.

3 Only necessary or proper costs may be allowed

A cost is to be allowed only to the extent to which—

  1. (a)
    incurring the cost was necessary or proper to achieve justice or to defend the rights of the party; or
  1. (b)
    the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.

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%.

Part 2 Amounts up to which costs may be allowed for legal professional work

Work for hearing of complaint up to and including day 1

  1. Instructions and preparation for the hearing,                up to

including attendance on day 1 of the hearing        $1,500.00

After day 1

  1. For each day of the hearing after day 1 up to $875.00

Other court attendances

  1. Court attendance, other than on the hearing of the

complaint up to $250.00

Part 3  Disbursements (including disbursements to witnesses and interpreters)

5  Disbursements, other than to witness for attending

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.

6  Disbursements as allowance to witness for attending—defendant’s witnesses

An allowance paid, payable or that will be paid by the defendant to a witness to attend a proceeding may be allowed up to an amount equal to the amount of any comparable prosecution witness allowance that would be payable to the witness if the witness were a prosecution witness attending court to give evidence in a criminal proceeding.

7  Disbursements as allowance to witnesses for attending—prosecution witnesses

Costs allowed to the complainant may include an amount up to the amount required to reimburse a payment by the State of a prosecution witness allowance paid or that will be paid to prosecution witnesses attending the proceeding.”

  1. [18]
    The first issue to be determined is whether this matter was of special difficulty, complexity or importance.  In Interclean Industrial Services Limited v Auckland Regional Council.[3] a similar provision was considered by Randerson J where his Honour said at pages 496-497:

“The use of the word special when applied to concepts of difficulty, complexity and importance means that 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. Similarly, the focus of the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him.”

  1. [19]
    This case has been quoted favourably by various decisions of the District Court including Whitby v Stockair Pty Ltd[4] and Guilfoyle v J Hutchinson Pty Ltd.[5]
  2. [20]
    I note the High Court in Baker v R[6] noted that there is nothing unusual about the term “special reasons” or “special circumstances”. It should not be confined by precise definition. In following Baker, the Queensland Court of Appeal noted in Seiffert v Commissioner of Police[7] it is a discretionary decision for the court. 
  3. [21]
    The respondent referred to Travers v McDonagh[8] as a relevant example. The difficulty is that each case depends on its own facts.
  4. [22]
    In my opinion, this was not a case of special difficulty, complexity or importance.  The issues involved were credit issues.  They are commonly encountered every day in the courts.  They were traffic charges.  They are  not of particular importance to the development of law.  Whilst they may have been important to the appellant that is not sufficient.  In the circumstances, I am not satisfied that the Magistrate erred in this regard.
  5. [23]
    As a result of this conclusion the appellant is bound by the amounts specified in Schedule 2.
  6. [24]
    Having made that finding, I next turn to the issue of whether counsel’s fees are recoverable as a disbursement. 
  7. [25]
    It is true that at common law counsel’s fees are a disbursement[9] but the question is whether the statute has altered this common law position.
  8. [26]
    Porter KC DCJ considered this matter in Baker v Smith (No 2).[10]  His Honour noted at [456] that there is no power to award an additional amount for counsel’s fees under the relevant scale of costs.  This was because Item 2 provides that Part 2 covers all legal professional work, even if the work is done by more than one lawyer.  His Honour agreed that the word “lawyer” should be read as including barristers and solicitors.  The work of a barrister and a solicitor falls within the scope of the expression “legal professional work”. 
  9. [27]
    With respect to Item 5, His Honour considered that this provides that payments including travelling, accommodation and other expenses of a lawyer acting as an advocate may be recovered.  This item is concerned with expenses of an advocate, not fees for acting as an advocate.  It says nowhere that payments to a lawyer as advocate may be recovered.  The express provision for legal professional fees is in Item 2 and Part 2.[11] 
  10. [28]
    I consider Judge Porter to be correct.
  11. [29]
    The task in interpreting a statute was discussed by the High Court in R v A2 & Ors[12] where the court stated that in construing the meaning of a statute one starts with a consideration of the words used. But the task does not end there. One must look at the context of the provision and the mischief the statute intends to remedy. The words of the provision should not be lost in this exercise. A very general purpose should not detract from the words used.
  12. [30]
    Let me first turn to the words of the regulation.      
  13. [31]
    Part 1 Item 2 specifically provides that an item in Part 2 covers all professional legal work even if the work is done by more than one lawyer. This to my mind makes it clear that the schedule amounts are for both a barrister and solicitor. Both are lawyers.
  14. [32]
    Then turning to Part 3 Item 5, to my mind this is not aimed at other lawyers’ fees as a disbursement. This provision relates to allowances to interpreters and the travelling, accommodation and other expenses of a lawyer acting as advocate.  
  15. [33]
    A literal interpretation reveals that counsel’s fees cannot be charged separately. Indeed, a literal interpretation was placed on Item 5 by the Court of Appeal in Merrin v Commissioner of Police.[13]
  16. [34]
    Also, when one has regard to the purpose of the Statute this conclusion is supportable.
  17. [35]
    The Explanatory Note reveals that the regulation provides for costs which “may be allowed for professional legal work and disbursements.” 
  18. [36]
    In Hickey v Crime and Misconduct Commission[14] it was noted at [13] the regime was clearly intended to replace the principles laid down in Latoudis v Casey[15] and the clear principle is to place limits on the discretion to award costs to a successful defendant in a criminal prosecution.
  19. [37]
    I consider the decision in Fletcher v Demag Cranes and Components Pty Ltd[16] did not engage with the issues I have referred to above.
  20. [38]
    I agree with the respondent, the definition of disbursement is clearly limited by the regulation.  I consider that counsel’s fees were not recoverable.
  21. [39]
    The final issue relates to adjournments.  In my view, the Magistrate was correct in finding there were three trial dates, namely 18 May 2022, 3 August 2022 and 31 August 2022.  The other matters were mentions.  In those circumstances, there was no error in the Magistrate’s approach here.
  22. [40]
    It may be thought that this is a harsh result for the appellant, but the court is bound by the law. Of course he is also entitled to have the fees he has been charged assessed independently if he wishes to. If I had been assessing the costs I would have had regard to the Magistrates’ Court civil scale.
  23. [41]
    For the reasons given, I dismiss the appeal and confirm the Magistrate’s decision given below.  I will hear the parties on the question of costs.

Footnotes

[1]  Transcript p 1-38.1.

[2]  [2008] QDC 340.

[3]  [2000] 3 NZLR 489.

[4]  [2015] QDC 79.

[5]  [2021] QDC 233.

[6]  [2004] HCA 45; (2004) 223 CLR 513 at [13].

[7]  [2021] QCA 170; (2021) 8 QR 415; 291 A Crim R 1 at [53].

[8]  [2013] QDC 177.

[9] Legal Services Commissioner v Dempsey [2007] QSC 270.

[10]  [2019] QDC 242.

[11]  Also see reasoning of Magistrate Gardiner (as he then was) in Bell v Townsend and Ors [2014] QMC 30 at [83].  

[12]  [2019] HCA 35; (2019) 269 CLR 507; 93 ALJR 1106; 373 ALR 214 at [32]-37].

[13]  [2012] QCA 181 at [35].

[14]  [2008] QDC 340.

[15]  [1990] HCA 59; (1990) 170 CLR 534.

[16]  [2020] QMC 9 at [78].

Close

Editorial Notes

  • Published Case Name:

    Short v Queensland Police Service

  • Shortened Case Name:

    Short v Queensland Police Service

  • Reported Citation:

    (2023) 3 QDCR 168

  • MNC:

    [2023] QDC 131

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    27 Jul 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Baker v R (2004) 223 CLR 513
2 citations
Jump To
Cite 1 - (2004) 223 CLR 513
Cite 2 - (2004) 223 CLR 513
Baker v Smith [2019] QDC 242
2 citations
Jump To
Cite 1 - [2019] QDC 242
Cite 2 - [2019] QDC 242
Baker v The Queen [2004] HCA 45
2 citations
Jump To
Cite 1 - [2004] HCA 45
Cite 2 - [2004] HCA 45
Bell v Townsend [2014] QMC 30
2 citations
Jump To
Cite 1 - [2014] QMC 30
Cite 2 - [2014] QMC 30
Fletcher v Demag Cranes and Components Pty Ltd [2020] QMC 9
2 citations
Jump To
Cite 1 - [2020] QMC 9
Cite 2 - [2020] QMC 9
Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 233
2 citations
Jump To
Cite 1 - [2021] QDC 233
Cite 2 - [2021] QDC 233
Hickey v Crime and Misconduct Commission [2008] QDC 340
3 citations
Jump To
Cite 1 - [2008] QDC 340
Cite 2 - [2008] QDC 340
Cite 3 - [2008] QDC 340
Interclean Industrial Services Ltd v Auckland Regional Council [2000] 3 NZLR 489
2 citations
Jump To
Cite 1 - [2000] 3 NZLR 489
Cite 2 - [2000] 3 NZLR 489
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Latoudis v Casey (1990) HCA 59
2 citations
Jump To
Cite 1 - (1990) HCA 59
Cite 2 - (1990) HCA 59
Legal Services Commissioner v Dempsey [2007] QSC 270
2 citations
Jump To
Cite 1 - [2007] QSC 270
Cite 2 - [2007] QSC 270
Merrin v Commissioner of Police [2012] QCA 181
2 citations
Jump To
Cite 1 - [2012] QCA 181
Cite 2 - [2012] QCA 181
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Seiffert v Commissioner of Police(2021) 8 QR 415; [2021] QCA 170
4 citations
Jump To
Cite 1 - [2021] QCA 170
Cite 2 - [2021] QCA 170
Cite 3 - (2021) 8 QR 415
Cite 4 - (2021) 8 QR 415
Travers v McDonagh [2013] QDC 177
2 citations
Jump To
Cite 1 - [2013] QDC 177
Cite 2 - [2013] QDC 177
Whitby v Stockair Pty Ltd [2015] QDC 79
2 citations
Jump To
Cite 1 - [2015] QDC 79
Cite 2 - [2015] QDC 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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