Benson v Matthews No 2

[2005] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:

Benson v Matthews No 2 [2005] QDC 056

PARTIES:

ERIC GORDON BENSON

Appellant

v

JOHN WILLIAM MATTHEWS

Respondent

FILE NO/S:

Appeal D905/04;  MAG66128/01

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

24 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

(Submissions in writing)

JUDGE:

McGill DCJ

ORDER:

The respondent pay the appellant $12,898 as costs of the trial.

CATCHWORDS:

CRIMINAL LAW – Summary offences – costs – whether costs to be awarded to successful defendant

PRACTICE – Costs – summary offences – complaint dismissed – whether costs to be awarded to defendant

Justices Act 1886 s 158A.

COUNSEL:

M D Martin for the appellant
A N S Skoien for the respondent

SOLICITORS:

Crowthers for the appellant
Shire solicitor, Pine Rivers Shire Council for the respondent.

1. In this matter, for reasons I published on 10 December 2004, I allowed an appeal against the decision of a magistrate convicting the appellant of an offence under the Integrated Planning Act 1997, quashed the conviction, and entered a verdict of acquittal. I made an order dealing with the costs of the appeal, but reserved the question of the costs of the hearing before the magistrate until written submissions from both parties had been received. They have now been received, and I will deal with that question of costs.

1. Before the magistrate the prosecution was successful, and an order for costs was made against the appellant. However, it does not necessarily follow that, the prosecution having on appeal been unsuccessful, an order for costs should be made in favour of the respondent, and in any event there is no reason why the quantum of costs awarded should be the same. Although there is power when dismissing a complaint to make an order that the complainant pay the defendant’s costs in s 158(1) of the Justices Act, s 158A provides that an order for costs in favour of a defendant against a complainant who is a public officer may be made “only if the justices are satisfied that it is proper that the order for costs should be made.” The term “public officer” includes an officer or employee of a local government (s 4), and therefore this section applies to restrict any order for costs against the respondent. Subsection (2) goes on to provide a number of matters which justices must take into account in deciding whether it is proper to make the order.

1. The extent to which this produces an approach to the exercise of the discretion as to costs which differs from the approach appropriate in the case of an unrestricted discretion is a matter which has generated some divergence of opinion.  In MacPherson v Commissioner of Taxation [1998] QCA 396, McPherson JA at [14] said that: “It might be said that the function to be performed in exercising discretion under s 158A does not greatly differ from what it would be in exercising [an] unparticularised general discretion …” On the other hand, in Saffery v…