Cullinan v McCahon (No. 2)

[2014] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

Cullinan v McCahon (No. 2) [2014] QDC 170

PARTIES:

MARK WILLIAM CULLINAN
(appellant/applicant)

v

CHRISTOPER McCAHON
(respondent)

FILE NO:

2393/13

DIVISION:

Appellate

PROCEEDING:

Application for leave to appeal; costs ruling

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

15.08.2014

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Judge Farr, SC

ORDER:

Orders

1. The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for a higher award of costs pursuant to ss 158B and 232A of the Justices Act 1886 in the amount of $1,500.00.

2.        The appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 is dismissed.

3.        The appellant is ordered to pay the respondent’s costs of and incidental to the appellant’s application for leave to appeal orders numbered 3, 4 and 5 of the judgment delivered on 29 May 2014 in the matter of Cullinan v McCahon [2014] QDC 120 in the amount of $1,500.00.

CATCHWORDS:

COSTS - where the appellant’s case was unsuccessful for a higher award for costs - where the respondent sought costs of the failed application – whether costs should follow the event – where uplift of 20% is sought pursuant to Section 4, Part 1 of the Schedule 2 of Justices Regulations 2004.  
APPLICATION FOR LEAVE - where the appellant sought leave to appeal the decision dismissing the appellant’s application for a higher award of costs – where an applicant must demonstrate that an error has occurred – where applicant failed to demonstrate that error has occurred.

COSTS – where respondent sought costs of failed application for leave- where Part 2 of Schedule 2 of Justices Regulation 2004 has application- where an uplift of 20% is sought pursuant to Section 4, Part 1 of Schedule 2 of the Justices Regulations 2004.

COUNSEL:

D O’Brien QC for the respondent

SOLICITORS:

Andrew P Abaza, solicitor for the appellant
Brisbane City Legal Practice for the respondent

1. On 29 May 2014 judgment was delivered dismissing the appellant’s application pursuant to ss 158B and 232A(2) of the Justices Act 1886 (Justices Act) for a higher amount for costs to be awarded on the basis that such higher amount was just and reasonable having regard to the special difficulty, complexity or importance of the case.[1]

   [1]Cullinan v McCahon [2014] QDC 120 at page 29.

1. The respondent now seeks an order for costs relating to that application.  In that regard the respondent has submitted that there is no reason why costs should not follow the event.

1. The appellant has submitted that costs should not be ordered. The bases for his opposition to such an order are:

(a)        that the original prosecution was nothing more than a speculative excursion on the part of the respondent;

(b)        that the appellant’s application for higher costs was not unreasonable and was fairly arguable in all the…