This is an appeal by way of order to review from a decision of a magistrate ordering costs against the appellant, a police officer variously described as the complainant and the arresting officer, upon the dismissal by consent of charges against the respondent of behaving in a disorderly manner and resisting the appellant in the execution of his duty. The magistrate on 1 July 1991 dismissed both charges.

It is unclear whether he then purported to adjourn the question of costs to a date to be fixed or purported to order the appellant to pay the respondent's costs, and adjourn the quantum of those costs to a date to be fixed. He then purported, on a later date, on the basis of evidence put before him, to fix those costs and to order the appellant to pay costs in the sum so fixed forthwith.

The dismissal of both charges at the request of the appellant followed the execution by the respondent of a deed on that day. The deed recites that Carter, the respondent, was charged by Bell, the appellant, with each of the above charges, that Carter was remanded from time to time on those charges and that the Crown in right of the State of Queensland by its servant and agents agreed not to proceed further with the charges. It then provides:

"NOW I the said DAVID ROBERT CARTER do hereby release and forever discharge the Crown in the right of the State of Queensland its servants and agents The Honourable the Minister for Police of the said State, the Commissioner of Police and each and every member of the Police Force of the said State (including but without limiting the generality of the foregoing) the said COLIN WAYNE BELL from and against all actions suits claims damages costs expenses and demands howsoever arising for or in respect of or in any manner connected with such events or happenings as hereinbefore referred to or any of them or such arrest as hereinbefore referred to."

The deed then provides that the release and discharge may be pleaded in bar to any action or other proceedings by Carter against any of the persons referred to and goes on to provide:

"I the said DAVID ROBERT CARTER hereby indemnify and agree to hold harmless the Crown in the right of the State of Queensland its servants and agents The Honourable the Minister for Police of the State of Queensland, the Commissioner of Police and each and every member of the Police Force of the State of Queensland (including but without limiting the generality of the foregoing) the said COLIN WAYNE BELL their servants and/or agents against all manner of actions suits claims damages costs expenses and demands howsoever arising…

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.

Continue reading Bell v Carter; Ex parte Bell

Details

AGLC: Bell v Carter; Ex parte Bell [1992] QCA 245
Case: [1992] QCA 245
Decision Date: 11/08/1992

CaseChat Overview and Summary

The applicants, Bell and another, sought a review of a decision made by a magistrate to dismiss their application for costs against the respondent, Carter, in the County Court of Victoria. The applicants had previously entered into a deed of settlement with Carter, which precluded any application for costs. Despite this, Carter applied for costs below the deed to be paid by the applicants. The applicants argued that the magistrate was without jurisdiction to dismiss their costs application, and that the magistrate was misled into ordering an adjournment of the question of costs or the amount thereof. The applicants sought a writ of prohibition and a writ of mandamus to compel the magistrate to hear their costs application.

The court was required to determine whether the magistrate had jurisdiction to dismiss the applicants' costs application and whether the magistrate was misled into adjourning the question of costs. The applicants argued that the magistrate was without jurisdiction to dismiss their costs application as the deed of settlement precluded any such application. The applicants further argued that the magistrate was misled into adjourning the question of costs because the respondent had charged the applicants with misleading the magistrate into ordering the adjournment.

The court held that the magistrate was without jurisdiction to dismiss the applicants' costs application as the deed of settlement precluded any such application. The court further held that the magistrate was misled into adjourning the question of costs because the respondent had charged the applicants with misleading the magistrate into ordering the adjournment. The court granted the applicants a writ of prohibition and a writ of mandamus to compel the magistrate to hear their costs application.

The court made an order that the respondent's application for costs be dismissed and that the applicants' costs application be heard by the magistrate. The court also made an order that the applicants be paid their costs of the application.

Orders