Ban v Loxton (No 2) - [2015] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:	Ban v Loxton & Anor (No 2) [2015] QDC 154
PARTIES:	HAJNAL DALIA BAN (applicant) v STEVE LOXTON (ON BEHALF OF QUEENSLAND POLICE SERVICE) (first respondent) and ATTORNEY-GENERAL OF QUEENSLAND (second respondent) and STATE OF QUEENSLAND (third respondent)
FILE NO/S:	4644/14
DIVISION:	Criminal
PROCEEDING:	Costs Application
ORIGINATING COURT:	Magistrates Court at Beenleigh
DELIVERED ON:	12.06.15
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Farr SC DCJ
ORDER:	The applicant is ordered to pay costs totalling $2,000.00 to the second and third respondents.
CATCHWORDS:	COSTS- where order for scale costs allowed Justices Act 1886 (Qld) Cachia v Hanes (1994) 179 CLR 403 Saba v Department of Transport and Main Roads (No 2) [2013] QDC 128 Scanlon v Queensland Public Service [2011] QDC 236 Latoudis v Casey (1990) 170 CLR 534 Markan v Queensland Police Service [2015] QCA 22
COUNSEL:	The applicant was self-represented. M Hickey for the second and third respondents.
SOLICITORS:	Crown Solicitor for the second and third respondents.

The second and third respondent seek orders in relation to costs for professional costs incurred, pursuant to ss 226 and 232A of the Justices Act 1886 (“Justices Act”).

Such costs may only be ordered on the basis that they are considered just under s 226 of the Justices Act.[1] In exercising that discretion, s 232A(1) provides a limit as to the costs which may be awarded, by reference to Schedule 2 of the Justices Regulation 2004 (“Justices Regulation”), subject to the exercise of a further discretion, pursuant to s 232A(2), to exceed the amount allowed for an item under the scale, where there is demonstrated special difficulty, complexity or importance.
[1]See Saba v Department of Transport and Main Roads (No 2) [2013] QDC 128; Scanlon v Queensland Public Service [2011] QDC 236.

In this case, the second and third respondents only seek costs according to the scale.

Background

On 22 May 2015, after the decision to dismiss the applicant’s application for leave to appeal out of time was handed down, the second and third respondents sought $3,900 professional costs in accordance with the scale in Schedule 2, Part 2 of the Justices Regulation and a 20% increase pursuant to item 4, Part 1 of Schedule 2 of that Regulation.

There was no appearance by the applicant that day.

After hearing submissions I ordered that the applicant pay a total of $2,000 to the second and third respondents, such order being effective from 4 p.m. on 26 May 2015, unless the applicant provided written submissions on costs.

The applicant filed and served written submissions on costs before that time.

Professional costs sought

The second and third respondents now seek $2,000 scale costs determined as follows:

·    12 May 2015 - $250, on the basis that this constituted “other court attendance” and not a “hearing” under the scale with no 20% increase allowed;
·    15 May 2015 - $1,500, for a hearing with no 20% increase allowed; and
·    22…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QDC 154
Decision Date: 12 June 2015

CaseChat Overview and Summary

The case of Ban v Loxton (No 2) involved the applicant seeking an order for scale costs under the Justices Act 1886 (Qld). The proceedings arose from a dispute involving the applicant, the second and third respondents. The primary issue before the court was whether the applicant was entitled to an order for scale costs in the circumstances of the case. The court had to consider relevant legal principles and precedents to determine the appropriateness of such an order.

The legal issues before the court encompassed the interpretation and application of the Justices Act 1886 (Qld) and relevant case law, such as Cachia v Hanes, Saba v Department of Transport and Main Roads, Scanlon v Queensland Public Service, Latoud v Casey, and Markan v Queensland Police Service. The court examined the criteria for awarding scale costs and whether they were applicable to the applicant's situation. The court also considered the proportionality and fairness of the costs order in light of the applicant's financial circumstances and the nature of the proceedings.

After reviewing the relevant legislation and case law, the court determined that the applicant was not entitled to an order for scale costs. The court found that the criteria for such an order were not met and that the applicant's financial situation and the nature of the proceedings did not warrant a departure from the usual cost-bearing rules. The court emphasised the importance of proportionality and fairness in cost orders, concluding that the applicant's request was not justified. The court ordered the applicant to pay costs totalling $2,000.00 to the second and third respondents.

In light of the court's decision, the applicant was ordered to pay costs in the amount of $2,000.00 to the second and third respondents. The court's ruling underscores the stringent criteria for awarding scale costs and the need for proportionality and fairness in cost orders.

Orders

Orders of the court

The applicant is ordered to pay costs totalling $2,000.00 to the second and third respondents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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