Pavlou v Brisbane City Council [No 2]
[2024] QDC 108
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- Unreported Judgment
- Pavlou v Brisbane City Council [No 2][2024] QDC 108
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Pavlou v Brisbane City Council [No 2][2024] QDC 108
Pavlou v Brisbane City Council [No 2][2024] QDC 108
DISTRICT COURT OF QUEENSLAND
CITATION: | Pavlou v Brisbane City Council (No 2) [2024] QDC 108 |
PARTIES: | PAVLOU, DREW (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | BD2880/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 15 July 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Submissions by the respondent dated 30 May 2024 Submissions by the appellant dated 21 June 2024 |
JUDGES: | Smith AM DCJA |
ORDER: |
|
CATCHWORDS: | APPEAL – COSTS – whether costs should be awarded to the successful respondent – where the appellant was successful on one of the issues – whether public interest considerations are relevant – whether the appeal was of a complex nature – what costs should be awarded Human Rights Act 2019 (Qld) Judiciary Act 1903 (Cth) s 79B Justices Act 1886 (Qld) s 222, 226, 232A Uniform Civil Procedure Rules 1999 (Qld) r 681 Baker v R [2004] HCA 45; (2004) 223 CLR 513, cited Pavlou v Brisbane City Council [2024] QDC 73, cited Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 233, considered Hickey v Crime and Misconduct Commission [2008] QDC 340, considered Interclean Industrial Services Limited v Auckland Regional Council [2000] 3 NZLR 489, cited Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, considered Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, considered Seiffert v Commissioner of Police [2021] QCA 170; (2021) 8 QR 415; 291 A Crim R 1, cited Whitby v Stockair Pty Ltd [2015] QDC 79, considered |
COUNSEL: | Mr A Morris KC for the appellant Mr A Scott KC and Ms S Marsh for the respondent |
SOLICITORS: | Direct access brief for the appellant Brisbane City Council Legal Practice for the respondent |
Introduction
- [1]This is the costs decision consequent on the decision in Pavlou v Brisbane City Council[1]. The respondent submits that the court should consider this particular case of special difficulty, complexity or importance and as a consequence costs above the District Court scale should be awarded.
- [2]The respondent relies on the affidavit of Michael Spencer. It submits that the case is of difficulty and complexity because:
- There was a requirement to issue notices under s 78B of the Judiciary Act;
- There were a number of grounds of appeal which were difficult and complicated;
- This was the first case to deal with the relevant provisions of the Local Law since the commencement of the Human Rights Act;
- There were wide-ranging allegations made concerning the effect of the Human Rights Act;
- Both parties were represented by King’s Counsel;
- It was a case of public interest.
- [3]With respect to the calculation of costs, the respondent submits that the statutory scale costs would amount to some $4,279.60. The affidavit of Mr Spencer sworn 30 May 2024 says actual costs are some $72,349.35. It is pointed out that the actual costs are far in excess of the scale costs and the scale provide compensation. It is submitted that the grant of costs here should be more commensurate with the actual costs rather than the scale costs.
Appellant’s submissions
- [4]The Appellant points out that the procedural fairness issue was found in his favour. It is also pointed out that this appeal is by way of rehearing. It is also pointed out that the construction issue took a different path to that advanced by the respondent.
- [5]The Appellant submits that there was ‘profligate expenditure’ on the part of the respondent and that the most appropriate costs order would be no order as to the costs of the appeal on the following grounds:
- The procedural fairness issue which was allowed on appeal;
- The construction issue;
- Public interest considerations, particularly that costs orders should not serve as a disincentive for members of the community to bring before the Court arguable cases where fundamental rights are in play.
- [6]In summary regarding the Court’s position in awarding costs, the appellant submits that any such order:
- should be very specific as to the costs which are awarded; and
- should be subject to the full rigours of the usual process of assessment.
Disposition
- [7]The issue of costs is in the discretion of the court subject to any relevant statutory provisions. Despite the appellant’s arguments, at the end of the day the respondent was substantially successful and it should have its costs, but not all of them. I accept in part the appellant’s arguments and conclude that the appellant did succeed on the particulars point. In those circumstances I consider the respondent should have 66% of its costs.
- [8]I am cognisant of the public interest considerations raised by the appellant but do not accord those great weight in this matter bearing in mind that the rate payers on Brisbane could “foot the bill” in this matter, which concerns important issues as to the management of a public area in the Brisbane CBD.
- [9]I now turn to the issue of the quantum of the costs.
- [10]Section 226 of the Justices Act provides that the judge may make such orders as to costs to be paid by either party as the judge may think just. Section 232A provides:
“232A Costs for division
- In deciding the costs that are just for this division, the judge may award costs only –
- for an item allowed for this division under a scale of costs prescribed under a regulation; and
- up to the amount allowed for the item under the scale.
- 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.”
- [11]In determining an order to allow a higher amount for costs the Court would need to be satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.
- [12]In Interclean Industrial Services Limited v Auckland Regional Council[2] a similar provision was considered by Randerson J where His Honour said at pp 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 that 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.”
- [13]This case has been quoted favourably by decisions of the District Court including in Whitby v Stockair Pty Ltd[3] and Guilfoyle v J Hutchinson Pty Ltd.[4] In Baker v R[5] the High Court noted there is nothing unusual about the term “special reasons” or “special circumstances”. It is not confined by a precise definition. The Queensland Court of Appeal in Seiffert v Commissioner of Police[6] in following Baker noted the matter is a discretionary decision for the court.
- [14]Having considered all matters I agree with the respondent that there was some special difficulty, complexity or importance in this case. In my view, a number of factors lead toward this conclusion. Firstly, there was a requirement for notices to be issued under s 78B of the Judiciary Act. This recognises the special character of these proceedings.
- [15]Secondly, there were a number of grounds of appeal.
- [16]Third, this was the first case to deal with the relevant provisions of the Local Law since the commencement of the Human Rights Act. I agree that jurisprudence on the Human Rights Act remains at an early stage of development in Queensland.
- [17]Finally, both parties were represented by King’s Counsel which reflects the seriousness of the issues which were before the court. I agree the appeal had particular importance because it dealt with matters of public interest including constitutional and HRA arguments in the context of s 21 freedom of expression. The appeal provided an opportunity to contribute to this developing jurisprudence. In all of the circumstances I am satisfied that the respondent has established that which it needs to under s 232A of the Justices Act.
- [18]The next matter to be considered is the quantum of the costs. In Hickey v Crime and Misconduct Commission[7] a number of principles emerge namely:
- Any costs awarded above the scale must be “just and reasonable”;
- The amount of costs above the scale that can be awarded must be of some relationship to the scale;
- While costs above the scale must bear some relationship to the scale, that does not mean that the only costs that may be awarded are for items that are specifically provided for in the scale.
- [19]In those circumstances, the court allowed for counsels’ fees in accordance with the Federal Court scale and solicitors’ costs as prescribed by the scale multiplied by three.
- [20]Turning to the general principles as to the award of costs, in Oshlack v Richmond River Council[8] it was noted at [44] that costs are not made to punish an unsuccessful party. McHugh J at [67] noted that 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. Although costs usually follow the event there is a wide discretion on the court to make a different order provided the discretion is exercised judicially[9].
- [21]The Uniform Civil Procedure Rules also provide some guidance. Rule 681 provides that costs are in the discretion of the court but follow the event unless the court otherwise orders. It is difficult for me to determine whether the sum of $72,000 is reasonable or not. The amount does seem high. It seems to me this should be the subject of an assessment.
- [22]Having considered all matters it is my decision to order that the appellant pay 66% of the respondent’s costs of and incidental to the appeal on the District Court scale on the standard basis as agreed or assessed.
- [23]In light of the issues involved in this case I certify for the costs of senior counsel.
- [24]If the parties agreed, I would be disposed to make an order for costs in a fixed amount as follows:
- Costs of Senior Counsel - $13,200 (1 day preparation including the drawing of the outline and 1 day appearance)
- Costs of Junior Counsel- $6,600 (1 day preparation including the drawing of the outline and 1 day appearance)
- Costs of instructing solicitor- $9,900 (2 days preparation and 1 day appearance)
- Outlays- $1,000
- 66% of the total ($30,700)- $20,262 (including GST)
- [25]I allow the parties seven days to decide whether to agree on a judgment for the fixed amount of $20,262 (or in an amount as agreed) to avoid the requirement for an assessment and the costs thereof.
Orders
- I order the appellant pay 66% of the respondent’s costs of and incidental to the appeal on the standard basis on the District Court scale as agreed or assessed.
- I certify for the appearance of King’s Counsel with junior counsel for the respondent.
- I allow the parties seven days to decide whether I should fix the respondent’s costs in the sum of $20,262 or in an amount as agreed.
Footnotes
[1] [2024] QDC 73.
[2] [2000] 3 NZLR 489.
[3] [2015] QDC 79.
[4] [2021] QDC 233.
[5] [2004] HCA 45; (2004) 223 CLR 513 at [13].
[6] [2021] QCA 170; (2021) 8 QR 415; 291 A Crim R 1 at [53].
[7] [2008] QDC 340.
[8] [1998] HCA 11; (1998) 193 CLR 72.
[9] Northern Territory v Sangare [2019] 8 HCA 25; (2019) 265 CLR 164 at [25].