Blenman v Queensland Police Service

[2013] QDC 41

DISTRICT COURT OF QUEENSLAND

CITATION:

Blenman v Queensland Police Service [2013] QDC 41

PARTIES:

Wayne Blenman
(appellant)

And

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

D27/12

DIVISION:

Appellate

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Mt Isa, Magistrates Court

DELIVERED AT:

Mt Isa

HEARING DATE:

7 February 2013

JUDGE:

Reid DCJ

ORDER:

Appeal upheld. Respondent to pay appellant sum of $1,250 for the failed prosecution and $1,200 for appellant’s cost of appeal.

CATCHWORDS:

Powers of a magistrate to award costs - Allowance for costs and disbursements - Recoverable expenses of litigation.

COUNSEL:

WL Hunter (Warren Hunter and Associates) for the appellant
CW Winlaw (ODPP) for the respondent

HIS HONOUR:  In this matter, the appellant seeks to overturn the allowance made by the learned Acting Magistrate for costs and disbursements ordered to be paid to the appellant following his successful defence of a charge under the Transport Operations Road Use Management Regulations. 

As a result of submissions made by the Crown, the appeal, so far as it related to disbursements, was abandoned.  In my view, that is appropriate.  The Act and Regulations clearly mean that the cost to a defendant of flying from his residence to the trial are not recoverable.  Whilst this might be considered unjust in some respects, that is, in my view, the clear effect of the Act; because it specifically provides as I shall shortly indicate, that only those charges allowed under the schedule can be recovered.

In my view, it's important for parties to understand that costs to be awarded in the event of a successful defence of such matters are not to be seen as a full indemnity, but are merely payment to ameliorate some of the inevitable expenses associated with a successful defence of such charges.

The appellant had been charged with failing to stop for a yellow light.  The matter was heard in September 2012.  Due to an error of some sort, there's no transcript of the evidence, but I have read the judgment delivered on the 4th of October 2012.  It seems that;

1. The hearing took about two hours, and involved some cross-examination of a expert traffic reconstructionist, which the learned Acting Magistrate felt could've been somewhat shorter. 
2. The learned Acting Magistrate found that the prosecution case was deficient, and it was not dismissed on technical grounds.
3. The Acting Magistrate;

A) Allowed $500 for professional costs, and made no

allowance for the appearance on the 1st of October 2012

when he gave his judgment.

B) Made no allowance, as I've said, for travel costs, but

this issue is now not being pursued.

Provisions of part 6, division 8 of the Justices Act govern the powers of the Magistrate to award costs. Section 158(1) provides;
     When justices instead of convicting or making an order

dismiss the complaint, they may by their order of

dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

Section 158A(1) provides;
     "Despite section 158(1), justices who dismiss a complaint

may make an order for costs in favour of a defendant

against a complainant who is a police officer, or public

officer only if the Justices are satisfied that it is

proper that the order for costs should be made.

Section 158A(2) sets out a number of matters that the learned Acting Magistrate was then required to take into account, along with all relevant circumstance. 

The appellant particularly relies upon sub paragraph D thereof, that is whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence; that’s clearly the case in this case.

Section 158B(I) provides;
     "In deciding the costs that are just and reasonable for this division, the Justice may award costs only -
         (a)  for an item allowed for this division under a

scale of costs prescribed under a regulation;

and

(b)  up to the amount allowed for the item under

the scale.

The relevant regulations are contained in the justice regulation 2004.  Clause 18 of that regulation provides;
"The scale of costs for part 6, division 8, and part 9,

division 1 of the Act is in schedule 2."

These of course covers of the initial prosecution and the second aspect, that in part 9, division 1 relates to section 222 appeals such as this.

Schedule 2 of the regulation is in the following terms;
"1. Scale sets out amounts up to which costs may be allowed.
     This scale sets out-
     (a)  The only items for which costs may be allowed for

part 6, division 8, and part 9, division 1 of the Act; and

(b)  The amount up to which costs maybe allowed for each

item.

2. Item of costs covers all legal professional work.

And item in part 2 covers all legal professional work,

even if the work is done by more than one lawyer.

3. Only necessary or proper costs maybe allowed.
     The cost is to be allowed only to the extent to which-

(a)  Incurring the cost was necessary or proper to

achieve justice, or to defend the rights of the

parties; or

(b)  The cost was not incurred by over caution,

negligence, mistake, or merely at the wish of   the party.

Clause 4 of the schedule essentially provides that on appeal, the amount that maybe allowed is 20 per cent greater than that contained in the list contained in part 2.

So far as here relevant, part 2 of the schedule then sets out the appropriate allowances as follows:

1. Instructions and preparation for the hearing, including attendance on day one of the hearing... up to $1,500.

1. Court appearance other than on the hearing of the complaint... up to $250.  As I've said, on appeal the maximum allowance is 20 per cent greater; that is for instructions and preparation, including attendance on day one, a figure of up to $1,800.

Part 3 of the schedule then sets out the provisions with respect to disbursements, is because of my interpretation of these sections that I concur that the Magistrate was not empowered to award any figure in respect of travel.

Because section 158B limits the award to items contained in the regulation, there is, in my view, clearly no general discretion to allow items other than those specifically contained in schedule 2. 

The question which remains therefore, is when the allowance of $500 in respect of the first day, and nothing in respect of the second, was within the reasonable exercise of the learned Acting Magistrates discretion. 

The matter took about two hours in Court on one afternoon.  It involved the solicitor in preparation, and no doubt consultation with his client.  It required him to attend on the day of judgment, and would no doubt have required some preparation on that occasion also bearing in mind that there was always a possibility of conviction, although the preparation may not have been particularly great, since many of the instructions in respect of that is you could've been obtained during any initial consultation.

Whilst recognising that the discretion is a wide one, in cognisant of the nature of an appeal from such a discretion, I nevertheless conclude that the allowance of $500 is so inadequate that I should interfere.

In doing so, I should say that in my view, the allowance of up to $1,500 allowed under item 1 in part 2 of schedule 2 does not mean that such an allowance is limited only to the most difficult cases, or one that takes a full days hearing.  Rather it places a limit on the amount which can be awarded, and the relevant discretion is not determined by consideration of how a particular case compares with a more complex case, but is a discretion to award costs as maybe "just and reasonable" as formulated in section 158 of the Act, and subject to considerations of those matters in section 158A, including all relevant circumstances.

Having regard to the matters I set out, in my view, it is unreasonable, unjust and outside the exercise of a reasonable discretion to have allowed $500 for the costs of a trial, albeit a short one, including for preparation, and for the Court appearance to receive judgment, and to be in a position to make submissions on penalty in the event of a conviction.

I would assess the just and reasonable costs under item 1 in schedule 2 to be $1,000 and would also allow $250 in respect of the attendance on the 4th of October.

I would therefore allow the appeal, and order the respondent pay to the appellant costs of the failed prosecution in the sum of $1,250.  I would also order that the respondent to the appeal pay the appellant's cost of the appeal.

Under section 4 of part 1 of schedule 2, costs of the appeal are as I have said, limited by the same scale, but maybe increased by 20 per cent, that is up to a maximum for a one day hearing of $1,800.

...

HIS HONOUR: In my view, the appeal was in no great difficulty or complexity for an experienced solicitor who would, I think, have been generally familiar with the provisions of the Justices Act relating to costs, and more particularly for the Justice Regulations to which I have referred.

No doubt, however, the preparation of written submissions and the filing of a notice of appeal does take some time and effort, and I would order the respondent pay to the appellant's solicitor's trust account, costs of and incidental to the appeal fixed in the sum of $1,200.

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