Bell v Townsend and Ors

[2014] QMC 30

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Bell v Townsend and Ors [2014] QMC 30

PARTIES:

STEWART LYNN BELL

(complainant)

v

JAKE RANGI TOWNSEND
(defendant)

KAINE BABINGTON
(defendant)

BRETT TREDINNICK
(defendant)

BRENTON DYMOCK

(defendant)

FILE NO/S:

MAG-78662/13(1); MAG-80430/13(2); MAG-78678/13(5); MAG-80410/13(1)

DIVISION:

Magistrates Court

PROCEEDING:

Complaint – Application to strike out complaint

ORIGINATING COURT:

Industrial Magistrates Court at Roma

DELIVERED ON:

3 March 2014

DELIVERED AT:

Charleville

HEARING DATE:

6 February 2014

MAGISTRATE:

Gardiner TD

ORDER:

Complaints struck out, Complainant pay the defendants costs.

CATCHWORDS:

INDUSTRIAL LAW - WORKPLACE HEALTH AND SAFETY – PROSECUTION - Application to strike out complaint – Complaint must be made by Commissioner – Whether Commissioner was appointed

COSTS- Special difficulty, complexity or importance, disbursement, counsels fees

Acts Interpretations Act 1991 (Qld), s 15B
Justices Act 1886 s158B(2), s 158(2)
Justices Regulation 2004 schedule 2 an 3
Petroleum and Gas (Production and Safety) Act 2004, s837(2), s 837(4)
Public Service Act 2008 s 119(2)(b)
Statutory Instruments Act 1992 (Qld), s 32, s 33
Associated Beauty Aids Pty Limited v Commissioner of
Dean v Attorney-General of Queensland [1971] Qd R 391
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421
In re Flavell [1916] SALR 47
Latoudis v Casey  (1990) 170 CLR 534
Legal Services Commission v Dempsey [2007] QSC 270
Morton v Queensland Police Service [2009] QDC 233
Taxation of the Commonwealth of Australia (1965) CLR 662
Travers v Donagh; Carrey v La Rocca[2013] QDC 177

COUNSEL:

Mr P Callaghan SC and T Ryan for complainant

Ms K Mellifont QC for Townsend

Mr JA Bremhorst for Babington

Mr MJ Byrne QC for Tredinnick

SOLICITORS:

McInnes Wilson Lawyers for complainant

Clayton Utz Lawyers for Townsend

HWL Ebsworth Lawyers for Babington

Sparke Helmore Lawyers for Tredinnick

1. Each defendant, Mr Townsend, Mr Babington, Mr Tredinnick and Mr Dymock are charged by complaint with an offence under s 699 (General obligation to keep risk to acceptable level) and s 702 (Requirement to comply with safety management plan) of the Petroleum and Gas (Production and Safety) Act 2004 “the Act”.

1. Mr Townsend, Mr Babington and Mr Tredinnick have applied to have their respective complaints struck out on the basis that Stewart Lynn Bell, the complainant was not the Commissioner for Mine Safety and Health when the complaints were made.

The issue

1. The issue is whether the words used to describe the commencement of Mr Bells appointment as the Commissioner for Mine Safety and Health mean his appointment started at the beginning of 22 April 2013 or the beginning of 23 April 2013.

Petroleum and Gas (Production and Safety) Act2004

1. Each offence is alleged to have been committed on 22 April 2012 at an operating plant 32 kilometres east of Roma at the Santos petroleum lease site. Each of the complaints was sworn by the complainant on 22 April 2013.

1. Section 837(4) of the Act relevantly provides that a proceeding for an offence must start within the latter of the following periods to end –

(i)          1 year after the commission of the offence;

(ii)        6 months after the offence comes to the complainant’s knowledge, but within two years after the commission of the offence.

1. Section 837(2) of the Act relevantly provides that a proceeding for an offence against Chapter 9, Part 4 of the Act (s 699 and s 702 are within this part) “can be started only by complaint of the Commissioner”

1. The “Commissioner” for the purposes of s 837(2) of the Act “means the Commissioner for Mine Safety and Health under the Coal Mining Safety and Health Act 1999”: Schedule 2 of the Act.

1. The Commissioner for Mine Safety and Health is appointed by the Governor in Council by gazette notice: s 73A(2) of the Coal Mining Safety and Health Act 1999.

Qld Government Gazette

1. By Queensland Government Gazette (Extraordinary) dated 22 April 2013, the complainant was appointed Commissioner in the following terms:

   Coal Mining Safety and Health Act 1999

   APPOINTMENT OF THE COMMISSIONER FOR MINE

SAFETY AND HEALTH NOTICE (No 01) 2013

Short title

1. This notice may be cited as the Appointment of the Commissioner for Mine Safety and Health Notice (No1) 2013

Appointment of the Commissioner [s73A(2) of the Act]

2 Stewart Lynn Bell is appointed as Commissioner for Mine Safety and Health for a term commencing from the day of publication of the gazette notice up to and including 31 March 2014.

1. For the complaints to be valid, the complainant must have been the Commissioner at the time of their making on 22 April 2013.

The Defendants submission

1. The defendants submit by choosing to use the word “from” the notice of appointment of Mr Bell should be interpreted as excluding the 22 April 2013, the day of publication of the gazette. They submit that intention is further evidenced by the choice to expressly use words of inclusion to denote the end date of Mr Bell’s appointment.

1. The defendants rely on Forster v Jododex Australia Pty Limited (1972) 127 CLR 421. In Jododex the Minister for Mines granted Jododex, a mining company an exploration licence dated 28 Nov 1968 ‘for a term of twelve months from the date hereof ’. On 28 October1969 Jododex applied successfully to renew the licence. The application to renew had to be made not later than one month before the expiry of the licence.

1. Gibbs J held that at page 440,

“The exploration licence was granted “for the term of 12 months from the date hereof”, that is, from 28 November 1968.  The question is whether the term commenced at the beginning, or at the end, of that day. Where a written instrument requires a period of time to be computed “from” a specified date, it depends on the true construction of the instrument whether the date specified is to be included in the period. Generally speaking however, the date from which the period runs, is excluded, although there is no rigid rule to that effect, and “from” is capable of having an inclusive effect in an appropriate context”[1]

[1] Also see Mason J at 450,  McTiernan J at 426 who concurred with Mason J, Walsh J at 428 and Stephen J at 448 Gibbs J cited Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113CLR 662 at 668 and 671.

1. Counsel for Mr Tredinnick and Mr Babington submitted there was doubt as to whether the Notice of Appointment in the gazette was valid on the basis that the end date of the appointment was inconsistent with an end date announced departmentally. Upon the Assistant Crown Solicitor producing the Executive Council minute signed by Her Excellency the Governor which accorded in all respects with the Notice of Appointment and Mr Callaghan SC reliance upon s 50 of the Evidence Act 1977 this point was not pressed.

Statutory Instruments Act 1992

1. Mr Bell’s appointment was made under an Act (The Coal Mining Safety and Health Act 1999 (Qld) and by an Order in Council (on 11 April 2013)[2]. The appointment was therefore a “statutory instrument” within the meaning of the Statutory Instruments Act 1992 – see s 7

   [2] Pursuant to s 73A of the Coal Mining Safety and Health Act 1999 (Qld), the Commissioner is to be appointed by the Governor in Council by gazette notice.

1. The Statutory Instruments Act 1992 applies to all statutory instruments – see s 3. The appointment was therefore one to which s 32 and s 33 of the Statutory Instruments Act 1992 (Qld) applied.

1. Sections 32 and 33 of the Statutory Instruments Act 1992 relevantly provides that –

32   Prospective commencement

(1) Subject to s 34, a statutory instrument commences –  

(a)        if it is required to be notified under s 47 or published in the gazette – on the day on which it is notified or published; or

(b)        if it is not required to be notified under s 47 or published in the gazette – on the day on which it is made; or

(c)        if a later day or time is fixed in the statutory instrument- on that day or at that time.

Commencement of citation and commencement provisions33   

(1)  The provisions of a statutory instrument providing for its citation and commencement commence, by force of this subsection     -

(a)          if the statutory instrument is required to be notified under section 47 or published in the gazette- on the day on which it is notified or published; or….

1. Mr Callaghan SC submitted by operation of s 32(1)(a) and s 33(1)(a) of the Statutory Instruments Act 1992 the appointment of Mr Bell commenced on 22 April 2013 the day it was published and that Mr Bell was the Commissioner on 22 April 2013. It is submitted this is so because the Order in Council deals only with Mr Bells appointment and the term of that appointment

1. Mr Callaghan SC submitted that the time of day Mr Bell became Commissioner is determined by reference to s 15(B) of the Acts Interpretations Act 1991 (Qld). Section 15(B) provides that if an Act or a provision of an Act commences on a day, it commences at the beginning of the day. Section 15(B) is one of the provisions mentioned in Schedule 1 of the Statutory Instruments Act (1992) Qld, which by s 14(1) of the Statutory Instruments Act authorises the application of s 15(B) to a statutory instrument in the same way it applies to an Act.

1. The defendants submit s 33 of the Statutory Instrument Act 1992 applies only to the provisions of the statutory instrument providing for its commencement, and not to the actual commencement term of the appointment or alternatively s33 is displaced by virtue of s 4 of the Statutory Instruments Act 1992 which provides that the Act may be displaced by a contrary intention appearing in any instrument.

1. The defendants submit pursuant to s 33(1)(a) of the Statutory Instruments Act 1992 the provisions of the statutory instrument ie the Order in Council[3] providing for its citation and commencement, commence on 22 April 2013, the day on which it was published. Section 32 of the Statutory Instruments Act 1992 provides the statutory instrument ie the Order in Council commences pursuant to s 32(1)(a) on the day on which it is published.

   [3] See s 7(3) and s10 of the Statutory Instruments Act 1992

1. In relation to s33 of the Statutory Instrument Act 1992 defence counsel rightly drew the distinction, albeit subtle, between the provisions of the statutory instrument providing for it’s (ie the statutory instrument) commencement and the commencement of Mr Bell’s term of appointment which depends on the wording used to describe it. The statutory instrument is the Order in Council and deals with three matters. Firstly in paragraph 1 its citation and in paragraph 2 secondly Mr Bell’s appointment and thirdly the term of that appointment.

1. The wording of the commencement date of Mr Bells appointment provides that the term of Mr Bells appointment commences ‘from’ the day of publication but this is different to the commencement of the Order in Council which by operation of s32(1) commences on the 22 April 2013. I note section 33(1) (a) of the Statutory Instruments Act 1992 uses the expression ‘on the day on which it is published’ to designate the day of commencement rather that the words ‘from’ the day on which it is published

1. Accordingly s32 and s33 of the Statutory Instrument Act 1992 do not apply to the construction of the commencement date of Mr Bell’s appointment.

1. Mr Callaghan SC relied on In re Flavell [1916] SALR 47. Flavell involved an appeal from an assessment of estate duty under the Commonwealth Estate Duty Act 1914.

1. The issue in Flavell was whether the Act of Parliament operated from the beginning of the day on which it was assented to, or only from the moment when Royal assent was given. It was held The Act took effect from the first moment of the day and events which happened later on in the same day (in that case, the death of Flavell) occurred after the commencement of the Act.

1. Mr Callaghan SC also relied upon Dean v Attorney-General of Queensland [1971] Qd R 391. Dean claimed a declaration that the proclamation of a State of Emergency and/or the Order in Council both made on 14 July 1971 and published in the Queensland Government Gazette Extraordinary of 14 July 1971 were beyond the power of the Governor in Council.

1. An Order in Council was issued for the purpose of securing the use of the Brisbane Exhibition ground by authorities controlling football matches between a visiting South African football team and opposing teams for training and playing purposes, see Stable J at 399D.

1. The proclamation of the state of emergency recited it,

“shall be in force for the period commencing the fourteenth day of July one thousand, nine hundred and seventy-one and ending on the fourteenth day of August one thousand, nine hundred and seventy-one”

1. Stable J at 405 met an argument that the proclamation as required was not in force when the Order in Council was made. Stable J held by virtue of the now repealed predecessor to s 15B of the Acts Interpretations Act, s 15(2) in the Acts Interpretations Act 1954 that the proclamation took effect from midnight on the preceding day and was in force.

1. As can be seen the cases of In re Flavell and Dean v Attorney-General of Queensland are distinguishable from the present facts. It is accepted that if the term of Mr Bells appointment commences on 22 April it commences at the beginning of the first moment of that day and equally if it commences on 23 April it commences at the first moment on the 23 April. See s 15B of the Acts Interpretation Act 1954

1. Mr Callaghan SC submitted ‘from’ should be given its dictionary meaning, ‘a particle specifying a starting point’[4] and that knowing the effect of s32 and s33 of the Statutory Instruments Act 1992 it should not be assumed that the Governor in Council intended ‘from’ to be interpreted by reference to the common law. The difficulty with this submission is that s 32 and s 33 of the Statutory Instruments Act 1992 do not address the interpretation of the word ‘from’.

   [4] The Macquarie Dictionary.

1. Mr Callaghan further notes the Notice of Appointment uses specific words of inclusion ‘up to and including’ with respect to the end date and submits given s 32 and s 33 of the Statutory Instruments Act 1992 there was no necessity to use express inclusive language for the commencement date and had there been an intention to exclude 22 April 2013 the instrument would have said ‘from but not including’. This submission overlooks the words ‘but not including’ add nothing to the general recognised legal meaning of the word ‘from’ whereas the expression ‘from and including’ [5]or ‘on and from’ would have expressed clear inclusive effect.

   [5]  See exhibit 12 to the affidavit of Mark Francis Grdovich sworn 4 February 2014 which exhibits appendix 2 From section 5.2.1 of the Executive Council Handbook being an example of an appointment expressed the term of the appointment  ‘…from and including….to and including…’

Consideration

1. Whether the period is expressed to begin ‘on’ a particular day or ‘from’ a particular day may be critical in determining whether that day is included or not. Many jurisdictions have enacted legislation to provide that where any period of time is to date from a given day, act or event, the time shall unless a contrary intention appears, be reckoned exclusive of such day or the day of such act or event. See s 36(1) of the Acts Interpretation Act 1901 (Cwth), Interpretation Act 1987 (NSW) s 36(1), Legislation Act 2001 (ACT) s 151(3), Interpretation Act 1984 (WA) s 61(1)(b), Interpretation Act 1978 (NT) s 28(1), Acts Interpretation Act 1915 (SA) s 27(1), Acts Interpretation Act 1931 (Tas) s 29(1). The Victorian provision excludes the first day whether ‘on’ or ‘from’ is used, see Interpretation of Legislation Act 1884 (Vic) s 44(1).

1. In Queensland s 38(1) of the Acts Interpretation Act 1954 excludes the first day if ‘on’ is used and does not address the position if ‘from’ is used. Absent a clear contextual basis it would be inconsistent to conclude ‘from’ should be given an inclusive interpretation when the Parliament has given ‘on’ an exclusive quality.

1. In Associated Beauty Aids Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1965) CLR 662 Barwick CJ held at 668:

“When, as here, a change is to take place from a stated time, the general “rule” as to the computation of a period of time is not of direct significance, though it is illustrative of the separating effect of the preposition “from”. In my opinion it does not usually have an inclusive but rather an exclusive or separatist quality. But unquestionably it may have either. Thus the preposition derives its relevant quality from the context in which it is found, which includes the purpose which the document in which it is found is evidently designed to effect.”

1. This reasoning was followed in Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 per Gibbs J at 440, Mason J at 450.[6] Gibbs J in Jododex, when interpreting the word “from” in the exploration licence determined there wasn’t anything in the nature of the exploration licence that rendered inappropriate the prima facie exclusory rule of construction

   [6] Also see Re Serafino;Exparte Classic Mfg Pty Ltd (1989) 86 ALR 283 (FCA) Burchett J at 286-287, Roskell v Snelgrove (2008)246 ALR 175 per Lindgren J at [43], Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR653 per Sheller JA at 667 (Kirby P and Meagher JA agreeing), Chief Commr of Land tax v Macary Mfg Pty Ltd (1999) 48 NSWLR 299 Spigelman CJ at [7], Mason P at [87], Sheller JA at [97]-[98] and Zoan v Rouamba Chadwick LJ (for the Court) at [23], Re Butler Exparte Toohey’s Ltd (1934) 34 SR (NSW) 277 Jordan CJ at 285-286.

1. Barwick CJ held in Associated Beauty Aids there is no universal or general rule and the preposition ‘from’ can have an inclusive or exclusive quality. The prima facie[7] or usual[8] position is that ‘from’ has an exclusive or separatist quality however there is no binding rule to this effect if its true construction dictates an inclusive effect. Where the interpretation is not prescribed by statute, the answer depends upon ‘the context in which it is found, which includes the purpose which the document in which it is found is evidently designed to effect’.[9]

   [7] Gibbs J in Forster v Jododex Aust Pty Ltd at 441

   [8] Barwick CJ in Associated Beauty Products at 668

   [9] Associated Beauty Aids Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1965) CLR 662 Barwick CJ held at 668

1. Mr Callaghan SC submits the context of the appointment is a statutory one. That is the Governor in Council expressed the appointment intending it to be interpreted by reference to s32 and 33 of the Statutory Instruments Act 1992. Mr Callaghan SC further submitted the purpose was to compliment Mr Bell commencing his employment on 22 April 2013. The context must derive from all the circumstances. I do not accept the context of the terms of the appointment depend upon the construction of s 32 and s 33 of the Statutory Instrument Act 1992. If I am found to be in error in the construction of s 32 and s 33 of the Statutory Instrument Act 1992 I accept the defendant’s submission that s 4 of the Statutory Instrument Act 1992 would operate to arrive at the same result. While the purpose includes giving effect to a commencement date, the date Mr Bell actually commenced work or in this case brought the complaints can not determine the purpose of the appointment.

1. The context, circumstances and purpose of the Order in Council[10] are unremarkable. The context of the appointment is firstly that s 837(2) of the Petroleum and Gas (Production and Safety) Act 2004 provides that a proceeding for an offence can be started only by complaint of the Commissioner. Secondly the Commissioner is defined in schedule 2 as the Commissioner for Mine Safety and Health under the Coal Mining Safety and Health Act 1999 and thirdly the Commissioner is to be appointed by the Governor in Council by gazette notice.[11] The purpose of the Order in Council is to provide for a routine appointment to the position of Commissioner for Mine Safety and Health and as usual setting out the term of the appointment.

   [10] Section 10 Statutory Instruments Act 1992

   [11] S73A(2) Coal Mining Safety and Health Act 1999

1. The term of the appointment is expressed to commence ‘from the day of publication’. If the appointment was expressed to commence ‘from the date of publication’ or ‘from 22 April 2013’ such variations in language are so subtle as to make any difference illusory.

1. In construing the instrument of appointment I find no features in the context, circumstances or purpose that detract from the separating effect of the preposition ‘from’. It bears its prima facie or usual exclusive effect commencing at the start of 23 April 2013.

Public Service Act 2008

1. Counsel for Mr Babington and Mr Townsend  applied to have the complaint dismissed on the further alternative basis that as of 22 April 2013 the Commissioner Mr Bells appointment pursuant to the Public Service Act 2008 had not been effected at law and accordingly Mr Bell was not authorised to make the complaint pursuant to the Justices Act 1886.

1. Mr Bremhorst submitted that s 73A(3) of the Coal Mining Safety and Health Act 1999 designates the Commissioner for Mine Safety as a public service officer employed under the Public Service Act 2008 but that Mr Bell had to be properly appointed and employed under the Public Service Act 2008 to perfect his appointment as Commissioner for Mine Safety and Health. Mr Callaghan SC submitted s 73A(3) of the Coal Mining Safety and Health Act 1999 deemed Mr Bell to be a public service officer authorised to make the complaint notwithstanding the terms of or even the existence of an employment contract.

1. Mr Bremhorst submitted Mr Bell’s appointment in the Gazette did not incorporate a notice pursuant to s 119(2)(b) of the Public Service Act 2008 and hence Mr Bell was not “formerly appointed or empowered” pursuant to the Public Service Act 2008.[12] Mr Bremhorst submitted the Notice of Appointment needed to include the words “Public Service Act 2008” under or adjacent to the words ‘Coal Mining Safety and Health Act 1999’ for Mr Bell to be validly appointed under the Public Service Act 2008.

   [12] In respect of Mr Bell’s appointment under the Public Service Act 2008 Mr Bremhurst submitted the appointment provisions of the public service officers are provided for in Chapter 5 part 1 of the Public Service Act 2008.

1. Section 73A of the Coal Mining Safety and Health Act 1999 contemplates Mr Bell’s employment as a public service officer pursuant to the Public Service Act 2008. Mr Bell was employed in accordance with the Public Service Act 2008. Section 119(2) (b) of the Public Service Act 2008 provides that a notice of appointment must be published in the Gazette. Mr Bell’ appointment was published in the Gazette.

1. I accept Mr Callaghan SC submission that Mr Bells appointment as Commissioner for Mine Safety and Health was perfected pursuant to s73A of the Coal Mining Safety and Health Act 1999 and that pursuant to s 73A he was a public service officer from the time the term of his appointment commenced. The fact that the notice did not incorporate a reference to the Public Service Act 2008 does not affect the validity of the notice because s 73A(3) makes express provision for Mr Bells designation as a public service officer and for the publication of the appointment. For these reasons the publication of the Notice of Appointment in the gazette pursuant to s 73A(2) of the Coal Mining Safety and Health Act 1999 complies with the requirement of s 119(2)(b) of the Public Service Act 2008.

1. The fact that the term of Mr Bell’s appointment pursuant to his employment contract went beyond the term of his appointment by the Governor-In-Council would not be a reason to impugn the validity of the appointment by the Governor in Council.

1. Notwithstanding the further submissions made by Mr Bremhorst, the issue remains, what is the true construction of the commencement date of Mr Bell’s appointment.

1. For the reasons given, Mr Bell’s appointment started at the commencement of 23 April 2013 and as a consequence Mr Bell was not the Commissioner for Mine Safety and Health when the complaints were made. The consequence is that the complaints against the applicants Mr Townsend, Mr Babington and Mr Tredinnick are a nullity and are struck out.[13]

   [13] Plowman v Palmer (1914) 18 CLR 339 at 347 and Cahill v State of New South Wales (Department of Communities) (2007) 161 IR 124 at 132

Costs

1. On 10 February I delivered the above reasons and the matter was subsequently adjourned for final orders including cost orders.[14] The defendants Mr Townsend, Mr Babington and Mr Tredinnick having been successful in their applications to have the complaints struck out have each applied pursuant to s 158(2) of The Justices Act 1886 (JA) for an order for costs. 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 2004 (the Regulation) is headed “Scale of Costs for Act, pt 6, div 8 and pt 9, div 1-Act, ss 158B(1)(a) and s 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”.

   [14] See s 159 of Justices Act 1886

1. Schedule 2 of the Regulation provides in s 1 that the Scale sets out in paragraphs (1)(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

1. In relation to each defendant’s application for costs there are two issues:

(1) should the court exercise its discretion pursuant to s 158(2) of the JA and order the complainant pay to each 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 2004 and;

(2) should the court exercise its discretion pursuant to s 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

1. Section 158A of JA was inserted as a legislative response to the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534.

1. Mr Townsend in his application sought an order that the complaint be struck out. Mr Tredinnick and Mr Babington sought orders that the complaints be dismissed. Following the delivery of reasons on 10 February 2014, Mr Byrne QC, Ms Mellifont QC and Mr Bremhorst concurred that the correct order would be the complaints be struck out. Mr Ryan in his submissions on costs submitted because the court found the complaints were laid by a person who was not authorised an order for dismissal of the complaint is the correct order, thus invoking the considerations in s 158A(2) of the JA on the application for costs. Mr Ryan submitted having regard to the matters listed in s 158A(2) in particular, s 158A(2)(d) there should be no costs order at all.

1. The complaints are to be struck out as a nullity because Mr Bells appointment as Commissioner for Mine Safety and Health had not commenced. I accept the submission of the defence counsel that in the circumstances, the proper order is that the complaints be struck out pursuant to s 158(2) of the JA for want of jurisdiction.

1. Mr Ryan noted the power to award costs under s 158(1)and (2) is based on an identical discretion and as a matter of practicality the considerations in s158A(2) would be relevant to each discretion. Defence counsel submitted in determining what is just and reasonable under s 158(2) of the JA s 158A(1) and(2) have no applicability because s 158A (1) and (2) relate only to complaints dismissed under s 158(1).

1. I accept where a complaint is struck out pursuant to s 158(2), if the Parliament intended the court take into account the matters in s 158A(2) it could easily have made clear provision for that in s 158A(1). Section 158A(1) only refers to s 158(1), an order for dismissal[15] and not s 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 s 158(2) of the JA.

   [15] I note s 158 is headed ‘Costs on Dismissal’ but because of the specific reference to s 158(1) in s 158A(1) I do not understand ‘dismiss’ as used in s158A(1) is intended to refer to an order under 158(2). Section 158(1) and (2) draw a distinction between a complaint before Justices and a complaint before a Court for want of jurisdiction. The caveat of “proper” in s158A(2) relates to its use in s158A(1).

1. Mr Byrne QC further submits when determining what is “just and reasonable”

   
   

   the following principles should be applied:

(a)        costs normally follow the event[16]

[16] Markey v Murray (1884) 2 QLJ 7 at 8

(b)        costs are an indemnity not a penalty[17]

[17] Latoudis v Casey (1990) 170 CLR 534 at 543

(c)        there is no question of onus, a successful party has in the absence of  special circumstances a reasonable expectation of obtaining an order for the payment of costs.[18]

(d)        costs can be calculated from the date of the complaint and summons inclusive of the proceeding itself[19]

[18] Smith v Ash [2010] QCA 112

[19] Re: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd: Ibrahim Hussein Dellal: John Robert Donnan, Haset Sali and Ross Peter McLindon [1988] FCA 202 17 June 1988 at [24]

1. The discretion to award costs pursuant to s 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.[20]

   [20] Mason J in Latoudis v Casey (1990) 170 CLR 534 at 543-4 This consideration is relevant in exercising the discretion under s158B and the Justices Regulation. As Shanahan DCJ held in Hickey v Crime and Misconduct Commission judgment delivered 19 May 2008  the policy in respect of the scale of costs 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

1. I am satisfied that it is appropriate to exercise the discretion in s 158(2) of the JA to award costs that are just and reasonable. I do so for the following reasons. The defendants were successful in their application to strike the complaints out. They had put the prosecution on notice of the point they intended to take, there is nothing in their conduct 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. If I am wrong in the construction of s 158A, giving due weight to the circumstances and in particular to the considerations in s 158A(2) (a),(b),(c) and(h) the same conclusion, that it is just and reasonable for the complainant to pay the defendants costs, is reached.

Section 158B of the Justices Act 1886

1. In Latoudis v Casey (1990) 170 CLR 534 at p 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…”

1. In response to this decision the Parliament enacted s 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.

1. 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”.

1. In this matter:

(a)        The complaint brought against each defendant alleged an offence on 22 April 2012 at an operating plant 32 kilometres east of Roma at the Santos petroleum lease site.

(b)        Each complaint was sworn by the complainant on 22 April 2013.

(c)        Each applicant defendant brought a pre-trial application that the complaint be struck out. The application was heard at Roma on 6 February 2014. There was no hearing of any evidence of the alleged offence. The application was determined following an argument on the construction of the terms of Mr Bell’s appointment,

(d) On 10 February 2014 the parties were informed of the reasons acceding to the applications and on 13 February 2014 further directions were made about the delivery of submissions on costs pending final orders pursuant to s 159 of the JA.

(e)        After the complaints were issued each defendant engaged legal representation and very significant costs have been incurred in the preparation of the defence of each of the respective complaints and in prosecuting the pre-trial application to strike out the complaints. Mr Byrne QC appeared for Mr Tredinnick, Mr Bremhorst appeared for Mr Babington, Ms Mellifont QC appeared for Mr Townsend and Mr Callaghan SC appeared with Mr T Ryan for the complainant.

(f)         Each defendant put the prosecution on early notice of the basis upon which the complaint was ultimately successfully challenged.

The costs sought

1. Mr Tredinnick relies upon an affidavit sworn by his solicitor, Mr Girle. Mr Girle says the costs incurred by Mr Tredinnick amounted to $202,336.02 which include:

Sparke Helmore fees (inc GST) $156,016.32

Disbursements $6,059.70

Counsel’s fees (inc GST) $40,260.00

Mr Girle expresses the opinion that “the claimable party party costs are $125,000”. Mr Tredinnick’s fees were calculated on a computer program called “Elite” which records the time spent on a file. Mr Girle exhibited a 59 page itemised schedule of fees listing items between 3 June 2013 and 10 February 2014.

1. Mr Babington relies upon an affidavit of his solicitor Mr Grdovich. Mr Grdovich says the costs incurred by Mr Babington amount to $127,837.18 which include:

HWL Ebsworth fees (inc GST) $74,291.25

Counsel’s fees (inc GST) $53,547.93

Mr Grdovich says Mr Babington’s fees were calculated on a computer program called “Aderant” which records the time spent on a file. Mr Grdovich exhibited a 12 page schedule of fees listing items between 25 September 2013 and 10 February 2014.

1. Mr Townsend relies on 3 affidavits, 2 by his solicitor Ms Miller. Ms Miller says the costs incurred by Mr Townsend amount to $123,363.29 (inc GST) which include:

Clayton Utz fees (inc GST) $99,153.94

Disbursements including Counsel’s fees $33,223.35

Ms Miller exhibited a 31 page schedule of fees listing items between 26 September 2013 and 13 February 2014. Ms Miller engaged Mr Graham, Costs Assessor to assess costs on a standard basis. Mr Graham assessed the costs of defending the proceeding and bringing the application to strike out the complaint. Mr Graham applied the Supreme Court scale because it is “the common and accepted practice”. Mr Graham says he assessed the costs using a similar approach to the standard assessment of costs in Bell v Unimin Australia Pty Ltd No.4 [2013] QMC 3. Mr Graham’s assessment on a standard basis was as follows:

Clayton Utz fees $46,523,58

Counsel Ms Mellifont QC $30,187.50

Costs Assessment $7,000

Telephone postage petties $50

Total $83,761.08

Ms Miller’s second affidavit sworn on 18 February 2014 included correspondence sent to the solicitor for the complainant, McInnes Wilson Lawyers, offering to compromise “a reduced amount of costs equivalent to that offered by Mr Tredinnick, that is, an amount for costs of $50,000” and “this offer was not accepted”.

Special difficulty, complexity or importance of the case

1. The defendants submit an amount for costs higher than the scale should be awarded because of the special difficulty, complexity or importance of the case pursuant to s 158B(2) of the JA. Submissions justifying the order made by some or all of the defendants were:

·    The validity of the complaint brought by Mr Bell as Commissioner for Mine Safety and Health is a matter of importance to the administration of justice.

·    The application to strike out 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 in circumstances where the prosecution had been put on early notice of the challenge of the validity of the complaint.

·    Although being subject to a fine by way of penalty, a conviction would have serious consequences to the defendant’s future employment prospects.

·    The defendants’ had offered to settle the issue of costs.

·    Applying the scale would set an amount that is both unjust and unreasonable.

1. The prosecution relies upon Travers v Donagh; Carrey v La Rocca[21] where Wall QC 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] 3NZLR 489, where the New Zealand High Court held there was no special difficult 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.”

[21] [2013] QDC 177

1. The prosecution relied upon Sorrensen v Animanto Pty Ltd[22] where Rackemann DCJ rejected a submission that the appeal before the District Court involved “special difficulty, complexity or importance” as that expression is used in s 232A of the Justices Act. In Sorrensen’s case it was noted the appeal was never anticipated to occupy more than part of one day and most of the arguments were advanced in written submissions. I accept the circumstances in Sorensen are similar to the present case. The parties have referred me to Lucy v OCC Holdings Pty Ltd & Anor (2)[23] The circumstance in Lucys case are distinguishable from the present application. Robin QC DCJ found the matter involved “special difficulty, complexity or importance” justifying a higher award where the matter had been argued by Senior Counsel over 4 “very full” days and having generated hundreds of pages of submissions.

   [22] [2008] QDC 219

   [23] [2008] QDC 169

1. Ms Mellifont QC has referred to 2 further authorities Morton v Queensland Police Service [2009] QDC 233 where Durward SC DCJ determined an appeal was of special difficulty, complexity and of importance pursuant to s 232A of the JA. That case also is distinguishable. In Morton the appeal raised an issue of the Constitutional validity of an enactment. It involved a detailed consideration of 109 of the Constitution, the Racial Discrimination Act 1975 (Cwth) and the Liquor Act 1992 (Qld).

1. Secondly in Queensland Police Service v McCracken [2011] QDC 305 Ryrie DCJ awarded costs in excess of the scale. McCrackens case is distinguishable. The case involved a Judge exercising a discretion on an appeal pursuant to s 232A of JA. It is distinguishable because of the unusual history leading up to the appeal. The appeal came on before Judge Ryrie on 7 Feb 2011. The appeal by police from a costs order was out of time.[24] The appeal was adjourned to Nov 2011. When it came on in Nov the appeal was not prosecuted. Her Honour at [14] took the view that while the appeal would not have involved any complexity or special difficulty ‘per se’ it would have necessitated briefing counsel. Her Honour said ‘That is to say, the matter was of sufficient complexity and importance to justify an award above the scale amount to be awarded’. By the time of the particular appeal significant costs were incurred by the Respondent and her Honour concluded the case was or had become of such importance that a higher award was justified. The Regulation does not draw a distinction between costs incurred by solicitors or counsel. Whilst the involvement of counsel may be an indicator that the issue may have special difficulty, complexity or importance it is not determinative. 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.

   [24] At para [4] bullet point 2 Her Honour refers to another Judge having made an earlier costs order on 3 Dec 2010 in excess of schedule 2, prior to Ryrie DCJ hearing the matter on 7 Feb 2011.

1. The issue in this case involved a determination as to the construction of the Notice of Appointment. In respect of the importance of the case the defendants point to the consequences of a conviction and submit the case is a matter of importance to the administration of justice. No doubt the outcome, like any determination of a complaint of a criminal matter was important to each defendant. Beyond that there was no special importance to the case. Like many cases that come routinely before this Court where a complaint is issued on the last day of a permitted limitation period the focus turned to the authority of the person to issue the complaint.

1. As to whether the application was involved any special difficulty or complexity various arguments were advanced on the application by the prosecution and defence in support of their contentions, however the case essentially involved a single issue[25]on the interpretation of the word ‘from’ in the context of the construction of the appointment. It is relevant that all three defendants took a common position on the true construction of the appointment and this reduced the complexity of the matter. I found there were no features in the context circumstances or purpose of the language of the appointment which detracted from the prima facie or usual meaning. The prosecution prosecuted the matter in good faith. The prosecutions unwillingness to compromise 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. .

   [25] See par [3] of these reasons

1. I accept the prosecution submission that although the parties except Mr Babington in the present case chose to brief Senior Counsel that in itself did not elevate the case to one satisfying the description of “special difficulty, complexity or importance”.[26] I do not consider it would be just for the complainant[27] to be ordered to pay the additional cost of the engagement of Senior Counsel by some of the defendants. I am also mindful that I was assisted by Counsels written submissions. The complexity, difficulty or importance of a matter should not be viewed artificially on the basis of the length of the hearing time where written submissions are relied upon. This may engender reluctance in the parties to save valuable court time at the risk of that saved time being used against their clients in an argument as to whether an issue is complex, difficult or important.

   [26] Stanley v Phillips (1966) 115 CLR 470

   [27] See s 158A(4) of the Justices Act 1886

1. 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 and 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 judgment delivered 19 May 2008 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.”

1. The defendants submit the award allows for an amount that is both unjust and unreasonable. The scale is set by the legislature.

1. 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].

Cost of Counsel as a disbursement

1. The defendants have submitted the costs of Counsel should be included as a disbursement allowable under schedule 2 part 3 item 5 of the Justices Regulation. This item is headed ‘Disbursements, other than witnesses for attending’ provides that

‘Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as an advocate, may be allowed to the extent they have been reasonably incurred and are paid  or payable’

1. Ms Mellifont QC refers to the definition of disbursement in the Encyclopaedic Australian Legal Dictionary as being ‘a payment which a solicitor in the true discharge of his or her duty is bound to make whether the client furnishes the solicitor with money for the purpose, with money on account or not’. Fees of Counsel were accepted as a disbursement in Re Remnant [1849] 50 ER 949 at 953. In Legal Services Commission v Dempsey [2007] QSC 270 Chesterman J referred with approval to Re Remnant and said at [35],

‘Disbursements’ is a term which at least since 1849, has had a particular and well understood legal meaning. It is to be expected that the draftsman of s 481C intended the word when used in the section to have that meaning. As O’Connor J said in Attorney-General (NSW) v Brewery Employees Union of New South Wales (1908) 6 CLR 469 at 531:

‘Where words have been used which have acquired a legal meaning it will be taken prima facie, that the legislature has intended to use them with that meaning unless a contrary intention clearly appears from the context. To use the word of Denman J in R v Slator…”but it always requires the strong compulsion of other words in an Act to induce the court to alter the ordinary meaning of a well known legal term”[28]

[28] Ms Mellifont QC referred to Atkinson v Gibson [2010] QDC 10 but correctly concedes the case is not authority for the award of counsels fees in reliance on Part 3 of sched 2 of the Justices Regulation.

1. It was submitted the Justices Regulation does not contain such ‘strong compulsion of other words’ and ‘disbursement’ should be given its well understood legal meaning.

1. This submission cannot be accepted for these reasons. The legislature has clearly intended to limit the definition of disbursement from the language used in Part 3 of schedule 2 of the Justices Regulation. The disbursement is limited to court fees and payments and with respect to lawyers allows specifically ‘travelling accommodation and other expenses’. The legislature has clarified the position by specifically enacting item 2 of part 1 of schedule 2 which provides, “An item in part 2 covers all legal professional work, even if the work is done by more than one lawyer”. There is no distinction drawn between solicitor and counsel. If there was to be a distinction and counsels fees for legal professional work were to be recovered as a disbursement such would be found in the language of schedule 2.[29] The context Chesterman J spoke of in Demseys case is, in respect of costs and disbursements, the context Shanahan DCJ spoke of in Hickeys case. No authority was cited in support of the submission and I am unaware of any.

   [29] I note in Ms Mellifont QC initial written submissions on costs at para [7] the amount said to be payable under regulation 18 of the Justices Regulation was $2250 and did not include an amount representing counsels fees for professional work as a separate disbursement.

Result on costs

1. Having concluded that I am not satisfied that a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case I decline to exercise my discretion pursuant to s 158B(2) of the JA and applying section 1(a) and (b) of Part 1 of schedule 2 of the Justices  Regulation, the only costs allowable are:

1. Mr Townsend

Schedule 2           Part 2      4 mentions.

2 Oct 2013,         $250

20 Jan 2014,        $250

13 Feb 2014,       $250

3 Mar 2014          $250

Instructions and preparation for the hearing on 6 February 2014 including       attendance at the hearing    $1500

Part 3 Travelling expenses and accommodation for lawyers $ Nil

Total  $2500

Mr Babington

Schedule 2          Part 2        4 mentions.

2 Oct 2013,         $250

20 Jan 2014,        $250

13 Feb 2014,       $250

3 Mar 2014         $250

Instructions and preparation for the hearing on 6 February 2014 including     attendance at the hearing    $1500

Part 3 Travelling expenses and accommodation for lawyers $452

Schedule 3     Summons x 2       $32

Total     $2984

Mr Tredinnick

Schedule 2          Part 2     6 mentions.

19 Jun 2013        $250

4 Sept 2013         $250

2 Oct 2013,         $250

20 Jan 2014,        $250

13 Feb 2014,       $250

3 Mar 2014         $250

Instructions and preparation for the hearing on 6 February 2014 including     attendance at the hearing    $1500

Travelling expenses and accommodation for lawyers $2910.87

Total $5910.87

Pursuant to s 158 (2) of the Justices Act 1886[30]

[30] such costs being payable by the State in accordance with s 158A(3) and (4) of the Justices Act 1886

I order the complainant pay Mr Townsend costs of $2500

I order the complainant pay Mr Babington costs of $2984

I order the complainant pay Mr Tredinnick costs of $5910.87