Livingstone Shire Council v Garslev Holdings Pty Ltd
[2016] QMC 29
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- Unreported Judgment
- Livingstone Shire Council v Garslev Holdings Pty Ltd[2016] QMC 29
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Livingstone Shire Council v Garslev Holdings Pty Ltd[2016] QMC 29
Livingstone Shire Council v Garslev Holdings Pty Ltd[2016] QMC 29
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Livingstone Shire Council v Garslev Holdings Pty Ltd [2016] QMC 29 |
PARTIES: | Livingstone Shire Council (Applicant) v Garslev Holdings Pty Ltd (Defendant) |
FILE NO/S: | MAG-0010997/16(1) |
DIVISION: | Magistrates Court |
PROCEEDING: | Criminal |
ORIGINATING COURT: | Rockhampton |
DELIVERED ON: | 6 December 2016 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 6 December 2016 |
A/MAGISTRATE: | M Morrow |
ORDER: |
|
CATCHWORDS: | Costs – Justices Act – Magistrates Court – higher amount sought – whether case one of special difficulty, complexity or importance Justices – Dismissal of complaint – Certificate of dismissal – whether hearing on merits necessary – Justices Act 1886, section 149. |
SOLICITORS: | Mr AD Grant, Solicitor, Grant & Simpson appeared for Livingstone Shire Council Mr LG Smits, Paralegal, Wall & Company, Lawyers granted leave to appear for the Defendant company |
- [1]This is an application by the Defendant for dismissal of a complaint, costs and for a certificate of dismissal under section 149 of The Justices Act 1886 (Qld) (JA) to be issued.
- [2]The background is on 9 May 2016, Mr Brett Peter Bacon made a complaint that alleged two offences under Livingstone Shire Council Local Law No. 1 (Administration) 2011, section 27 – Compliance notice authorised by local law against Garslev Holdings Pty Ltd.
- [3]On the 27 September 2016 the Council indicated to the Court they wished not to proceed with the complaint as it has become apparent the complainant, Mr Bacon had no authority to issue the complaint. There has been no hearing of any evidence of the alleged offences.
- [4]The Defendant seeks costs. Directions have been given for the filing of material and submissions in relation to costs hearing.
- [5]The complaint should be struck out as a nullity and in the circumstances the proper order should be the complaints be struck out pursuant to section 158(2) of the JA for want of jurisdiction.
- [6]The submissions provide no authorities on costs which I find unhelpful in assisting the Court. I refrain from making any other comments about the submissions.
- [7]As to jurisdictional issues and errors, no evidence and findings have been made by a court as to the validity of any notices issues by Council that I am aware of.
- [8]As to section 153 of the JA, any conviction or orders are subject to appeal under the Justices Act and the section does not purport to take away judicial review as is shown by the proviso. See, for example, Clampett v Magistrate Cornack & Anor [2013] QCA 2; Graham v Magistrate Pinder [2014] QSC 114 and Sibelco Australia Ltd v Magistrate Graham C Lee & Anor [2014] QCA 113 including jurisdictional arguments.
- [9]The main issue here is costs.
Costs
- [10]The submission by the Defendant based on section 102C of the JA is ill conceived as section 102A of the JA indicate: “section 120A to 102G of the JA apply in relation to a private complaint charging a person with an indictable offence.”. The charges here are simple offences no indictable offences.
- [11]Nor does the Uniform Civil Procedure Rules 1999 apply as this is not a civil proceeding.
- [12]I adopt the reasoning and decision in Bell v Townsend & Ors [2014] QMC 30 by HH DCM Gardiner in a case that has many similarities and my decision uses and adopts his Honours words in many instances in this judgment. That was a case of a strike out application that was successful where the complainant was not appointed at the time to the position of Commissioner of Mine Safety and Health when the complaints were made and consequently the complaints were a nullity and struck out. Very substantial costs were sought by the Defendants who were legally represented and a number of Senior/Queens Counsel were briefed.
Costs – Justices Act
- [13]The Prosecution offers no evidence to the complaint and the Defendant applies pursuant to section 158(2) of the Justices Act 1886 (JA) for an order for costs.
“158 Costs on dismissal
- (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.
- (2)When a complaint is before a Magistrates Court which the court has no 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.
158B Costs for division
- (1)In deciding the costs that are just and reasonable for this division, the justices 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 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.”
- [14]Section 158 of the JA enlivens the jurisdiction of the court to exercise its discretion to award costs. Section 158 is in Part 6 Division 8 of the JA. Regulation 18 of the Justices Regulation 2014 (the Regulation) is headed “Scale of Costs for Act, pt 6, div 8 and pt 9, div 1-Act, subsection 158B (1) (a) and section 232A (1) (a)” and provides, “the Scale of Costs for Pt 6, div 8 and pt 9, div 1 of the Act is in Schedule 2”.
- [15]Schedule 2 of the Regulation provides in section 1 that the Scale sets out in paragraphs (a) (a) and (b) are the only items for which costs may be allowed under part 6 division 8 of the Act and the amount up to which costs may be allowed for each item.
The issue on costs
- [16]In relation to the Defendant’s application for costs there are two issues:
- (1)should the court exercise its discretion pursuant to section 158(2) of the JA and order the Complainant pay to the applicant Defendant such costs as to the court seem just and reasonable as allowed for under the scale of costs in schedule 2 of the Justices Regulation 2014 and;
- (2)should the court exercise its discretion pursuant to section 158B(2) of the JA to allow a higher amount if satisfied a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.
Section 158A of the Justices Act
- [17]Where a complaint is truck out pursuant to section 158(2), if the Parliament intended the court take into account the matters in section 158A(2) it could easily have made clear provision for that in section 158A(1). Section 158A91) only refers to section 158(1), an order for dismissal 15 and nor section 158(2) an order that the complaint be struck out. It follows that Latoudis v Casey (1990) 170 CLR 534 remains apposite in exercising the discretion to make an award for costs pursuant to section 158(2) of the JA.
- [18]The discretion to award costs pursuant to section 158(2) should be exercised having regard to the principles set out in Latoudis v Casey (1990) 170 CLR 534 namely that costs are not awarded as a punishment to an unsuccessful party. Costs are compensatory and although there is no general rule that costs follow the event ordinarily a Magistrates Court exercising a statutory discretion will make an order for costs in favour of a successful Defendant. The exercise of the discretion should not be influenced by an argument that public officers will be deterred from prosecuting cases for fear of incurring costs.
- [19]I am satisfied that it is appropriate to exercise the discretion in section 158(2) of the JA to award costs that are just and reasonable. There is nothing in the conduct of the defendant that ought to disentitle them to a costs award and the award would operate as compensation (albeit limited) for the significant costs that I accept have been incurred.
- [20]In Latoudis v Casey (1990) 170 CLR 534 at paragraph 542, Mason J said: “To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself…”
- [21]In response to this decision the Parliament enacted section 158B of the JA. Section 158B(1) provides that in deciding the costs that are just and reasonable the court may only award costs for an item allowed and up to the amount allowed under the scale.
- [22]Section 158B(2) of the JA provides that a higher amount may be allowed if the court “is satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case”.
The costs sought
- [23]The Defendant relies on an affidavit sworn by Mr Smits on 19 November 2016. Mr Smits swears the costs incurred by the Defendant company amounted to $8,828.35 which include:
Wall & Co fees (inc GST) $8,478.35
Travel accommodation & out of pocket expenses $350
- [24]There is no indication how the fees are calculated such as a computer program like “Elite” or “Aderant” which records the time spent on a file or by a costs assessor.
- [25]The Defendant by solicitor’s letter dated 21 September 2016 to the Grant & Simpson, the Council’s solicitors offered to compromise “to consent to a lump sum costs order of only $5,000 plus GST”. This offer has not been accepted.
Special difficulty, complexity of importance of the case
- [26]The Defendant submits an amount for costs higher than the scale should be awarded because of the special difficulty, complexity or importance of the case pursuant to section 158B(2) of the JA.
- [27]Submissions justifying the order made by the Defendant were:
- The validity of the complaint brought by Mr Bacon is a matter of importance to the administration of justice.
- The proceedings involved a question of law not without the requisite degree of difficulty and complexity.
- The defence of the complaint involved a large amount of work undertaken.
- The Defendants’ had offered to settle the issue of costs.
- Applying the scale would set an amount that is both unjust and unreasonable.
- [28]In Travers v Donagh; Carrey v La Rocca [2013] QDC 177, Wall QD DCJ had reason to consider the interpretation of the expression “special difficulty, complexity or importance”. His Honour held that the expression should be interpreted to mean “special difficulty, special complexity, or special importance”, see para [22]. His Honour cited with approval Randerson J in Interclean Industrial Services Ltd v Auckland Regional Council [2002] 3 NZLR 489, where the New Zealand High Court held there was no special difficulty or complexity in the particular case citing with approval the observation of Tipping J in T v Collector of Customs “The use of the word ‘special’ when applied to the 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 on 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.”
- [29]As Judge Wall QC in Travers Case noted at [27], at the end of the day each case is different and each case depends on its own facts and the issues involved.
- [30]The Council wishes to withdraw the complaint. No doubt the outcome, like any determination of a complaint of a criminal matter is important to the Defendant. Beyond that there was no special importance to the case.
- [31]As to whether the application involved any special difficulty or complexity various arguments were advanced on the application by the prosecution and defence in support of heir contentions, however with any case the defence would explore all and any defences or errors relating to the allege offence. I found there are no features in the context circumstances or purpose of the language of the appointment which detracted from the prima facie or usual meaning.
- [32]The prosecution prosecuted the matter in good faith. The prosecutions unwillingness to compromise on the on the costs does not trigger the discretion to award higher costs. I accept the prosecution submission that the case did not involve any special difficulty, complexity or importance as that expression is understood.
- [33]Although as indicated by Mason J in Latoudis v Casey in the passage quoted defendants can be exposed to substantial and crippling costs by reason of an unsuccessful prosecution ant that it is inequitable that they should be expected to bear the financial burden of exculpating themselves one must bear in mind the observations of Shanahan DCJ in Hickey v Crime and Misconduct Commission [2008] QDC 340 where his Honour observed:
“[13] The Queensland Legislature by a series of amendments to the Justices Act 1886, introduced a regime in relation to the award of costs which was clearly intended to replace the principles laid down in Latoudis v Casey (see Murray v Radford [2003] QCA 91)…
[43] To my mind, it is clear that the legislature has limited the discretion to award costs to successful defendants in criminal prosecutions as a matter of policy. That policy is based on the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders being made in the event of unsuccessful prosecutions. Any award of costs above the scale must be made with that principle in mind.”
- [34]The defendant submits the award allows for an amount that is both unjust and unreasonable. The scale is set by the legislature.
- [35]Rackemann DCJ observed in Sorrensen v Animato (supra), the discretion to award a higher amount of costs is not enlivened simply because the scale would not provide a complete indemnity for costs on a party and party basis. See also Durrant v Gardner [2000] QDC 198 at [45].
- [36]Today is a hearing of the matter.
- [37]In fact, when a defendant appears and pleads to a charge, he “appears to take his trial; although no evidence is offered by the prosecutor that is still a hearing.” See Tunnicliffe v Tedd 136 E.R. 995 at p.998; (1848) 5 C.B. 553 at p.560 per Coltman, J.
- [38]The work performed for the defendant is by a firm of solicitors although no Australian legal practitioner as provided for in the Legal Profession Act 2007, section 44 has appeared at any mention of the matters, but Mr Smits, a paralegal from the firm has been given leave to appear.
- [39]Although not a criticism, it is apparent that the Defendant’s solicitors who are from the North Coast of New South Wales are unfamiliar with this jurisdiction and the work they have had to perform has been up to 20 hours. The Defendant is really seeking their solicitor’s costs for time and work in preparing for and responding to the complaint but does not include appearances which only an Australian legal practitioner is entitled to.
- [40]I also take judicial notice that many lawyers now charge hundreds of dollars an hour for their services.
- [41]The matter has some history and in the circumstances, considering the authorities I will order the Complainant pay to the Defendant costs of $1,500 that includes preparation for today’s hearing.
Certificate of Dismissal
- [42]Section 149 of JA fell for interpretation in R v Hay; ex parte Patane [1981] Qd R 152. In that case it was decided that because of the history of section 149 and its historical connection with subsection 145 and 146 the “dismissal” referred to in section 149, and thus section 700 of CC where an indictable offence is dealt with summarily, was a dismissal on the merits, and could not apply in the case in question in which there was no hearing, the prosecution simply offering no evidence. The guilt or innocence of the defendant has not been adjudicated upon and a mere withdrawal does not in general amount to an acquittal of the defendant.
- [43]In actual practice where the complainant has decided not to proceed with the case, they inform the bench when the case is called on that they do not intend to offer any evidence and the case is thereupon struck out. But the defendant can insist on their rights; they have an interest in having the matter disposed of, and if the charge is not proved they are entitled to an acquittal: Tunicliffe v Tedd (1848) 5 C.B. 553.
- [44]In Vaughton v Bradshaw [1860] EngR 275; (1860) 9 CB (NS) 103, 142 ER 40, the Court of Common Pleas, purporting to follow Tunnicliffe v Tedd, held that there was a hearing under the section despite the fact that before the day of hearing the prosecutor gave notice to the defendant not to attend and also gave notice to the magistrate’s clerk that he (the prosecutor) would not attend and that on the day the defendant alone attended. The court held the informant under the section could not withdraw and that the defendant had a right to a decision, and that if the informant said he withdrew, the case was heard.
- [45]In R v Phipps, ex parte Alton [1964] 2 QB 420, Lord Parker CJ with the support of the other members of the court said (see p 428):
“I conceive it would have been possible for counsel for the applicant at once to object to the suggested withdrawal of process; to insist so far as he could having regard to the fact that he had incurred costs, that this inquiry should begin; that he should then have an opportunity of having it dealt with summarily; and, the prosecution offering no evidence have the charge dismissed and so acquittal and such costs as he could get under the [relevant legislation].”
- [46]There are old cases that indicate where a complaint is to be dismissed not upon the merits but some other ground such as that it was laid by a person not competent to lay it, fresh proceedings in respect of the same matter may be taken. See “The Justices Acts (Queensland)”, Kennedy Allen, 3rd Edn., 1956, LBC at p.385.
- [47]In the meantime the Court is justified in refusing a certificate of dismissal. Foster v Hull 91869) 20 L.T. 482; R v May (1880) 5 Q.B.D. 382.
- [48]As there has been not hearing on the merits the application for a certification of dismissal is dismissed.
Mark Morrow
A/Magistrate