Madden v Commissioner of Police

Here, the court considered whether the circumstances warranted a departure from its earlier decision in Bell v Carter; Ex parte Bell [1992] QCA 245, wherein it held that a Magistrate had no jurisdiction to determine costs where a formal order of dismissal had already been made. In its view, it was appropriate to reconsider Bell v Carter; Ex parte Bell [1992] QCA 245 and it clarified that properly construed, Justices Act 1886 permitted costs to be determined afterwards.

Mullins P and Bond JA and Brown J 

10 March 2023

The applicant had been charged with various dishonesty offences [4] which were dismissed by a magistrate in the absence of evidence [9], [13] and the matter adjourned to determine an application by the defendant for costs. [15]. At the subsequent application for costs, following Bell v Carter; Ex parte Bell [1992] QCA 245 the magistrate held that given she had previously formally dismissed all charges she had no power to make a costs order. The costs order was refused. [18]. That was upheld on appeal to the District Court. [20].

The applicant sought leave to appeal the decision of the primary judge on the bases that:

1.the primary judge erred in ruling that the magistrate had no jurisdiction to award costs.

2.in the alternative, the primary judge erred “by failing to find error in the Learned Magistrate’s decision… to dismiss the charges before the Magistrates Court, in circumstances where a costs application had been foreshadowed and failing to, on her own initiative, amend the notice of appeal before her to reflect that error”. [23], [24].

The application of Bell v Carter; Ex parte Bell [1992] QCA 24

In Bell the court held, inter alia, that if an order for costs is to be made in relation to a dismissal, the formal dismissal must be deferred until such time as the court is in a position to make its final determination on the question of costs. The applicant submitted that it was appropriate in the current matter that the court reconsider and then depart from Bell, since it was based upon a view of what constitutes a “formal dismissal” which was unsupported by either the language or the intention of the relevant provisions of the legislation. [23].

Citing Lynch v Commissioner of Police [2022] QCA 166, the court observed that the applicant’s position was an ambitious one. [26].

In addressing whether it was in a position to form the necessary strong conviction that Bell should be reconsidered, the court made these comments about the construction of the applicable provisions of Justices Act 1886:

1.the phrase “order of dismissal” in the Act (for example in ss 158 and 159) is not, correctly construed, a reference to any order made by the Magistrates Court which results in an effective dismissal of charges; [47];

2.it is not correct to conclude that the fact of an effective dismissal order which has made no reference to costs operates to foreclose the possibility of any subsequent order for costs. That would be inconsistent with the text of s 158A, which post-dated Bell. That would also be unharmonious with s 158A(2)(d) which identifies that a costs order under s 158 may be made after a charge has already been dismissed on technical grounds; [48];

3.the courts have previously commented that in selecting between competing interpretations “… the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention”: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 320–1). Convenience and efficiency often favour costs being considered after the event (here, the dismissal). It is unlikely the legislature intended that doing so would not be possible. That is supported by s 158A(2)(d); [49];

4.what amounts to an “order of dismissal” is dependent upon context. For the purposes of s 149 it means an order formally made after a charge has already been dismissed and for the purposes of issuing a “certificate thereof”. For the purposes of s 158A(2)(d) it means the order which has been made dismissing the charge. For the purposes of ss 158 and 159 it includes an order which formally records a dismissal having been ordered and orders an amount of costs to be paid, even if an earlier order was made dismissing the charges. [50].

In the court’s view the above matters amounted to a sufficient basis for departure from Bell. Importantly it stressed that:

“the terms of s 158A(2)(d) cannot be reconciled with the notion that a costs order cannot validly be made after a complaint has already been the subject of dismissal, and s 158A was introduced after Bell was decided. Finally, reconsideration would avoid substantial injustice in the present case and substantial inconvenience and inefficiency in other cases.” [51].

The court clarified that the magistrate and the primary judge had not erred in following Bell. That said, it was plain that both had erred in determining that the magistrate was unable to hear and determine the costs order before her. That was not the case:

“It was open to the Magistrate to do so. In the event that the costs application failed, no further order would be necessary than an order refusing the application, unless the applicant sought an ‘order of dismissal’ under s 149. But if the costs application succeeded…, it would have been open to the Magistrate to make an order which formally recorded a dismissal having been made and ordered an amount of costs to be paid, notwithstanding that there had been earlier orders dismissing the charges concerned. Such an order would fall within the meaning of “order of dismissal” in ss 158 and 159.” [52].

Disposition

Leave to appeal was granted and the appeal was allowed. Orders were also made to facilitate the hearing and determination of the application for costs orders.

A Jarro