De Bray v. Cohen - [2008] QDC 276

DISTRICT COURT OF QUEENSLAND

CITATION: De Bray v Cohen [2008] QDC 276

PARTIES:
LORRAINE MARGARET DE BRAY
(Appellant)

v

JOHN NORMAN COHEN
(Respondent)

FILE NO: Appeal D166/07

PROCEEDING: Appeal from Magistrates Court at Southport

DELIVERED ON: 28 November 2008

DELIVERED AT: Southport

HEARING DATES: 26 – 28 May and 20 – 23 October 2008

JUDGE: C.F. Wall Q.C.

ORDERS: Appeal allowed; decision of the Magistrates Court to refuse the appellant’s application for costs set aside and in lieu thereof the complainant is to pay the appellant’s costs of the hearing in the Magistrates Court.

CATCHWORDS: Appeal – Magistrates Court – prosecution by local authority – defendant successful – costs – whether defendant unreasonably declined an opportunity before charge was laid to explain defendant’s version of events – whether explanation could have avoided prosecution – whether defendant brought suspicion on herself – whether defendant should have been deprived of costs.

LEGISLATION:
Justices Act 1886 Sections 158(1) and 158A

COUNSEL Appellant -      Mr D H Denton SC
  Mr G R Allen
Respondent - Mr C L Hughes SC
  Mr N S Skoien

SOLICITORS: Appellant- Deacons Lawyers
Respondent - Michael Sing Lawyers

Introduction

This is an appeal by Lorraine Margaret De Bray against the decision of a magistrate at Southport on 8 March 2007 to refuse to order the complainant/respondent to pay Mrs De Bray’s costs of successfully defending a complaint laid against her.

As amended at the hearing, the complaint was in the following terms:
Gold Coast City Council
~~Interim~~ Local Law 6 (Vegetation Management)
~~Section 5(1)~~
“The Complaint of JOHN NORMAN COHEN, Manager Health and Regulatory Services to [sic] GOLD COAST CITY COUNCIL of Surfers Paradise in the State of Queensland made this 12^th day of February 2004, for and on behalf of the said Council, before the undersigned, a Justice of the Peace for the said State, who says that on a date between December 2000 and November 2003, upon land located at ~~220~~ Petsch Creek Road, Tallebudgera Valley in the State of Queensland which land is more particularly described as Lot 3 2 & 3 RP 168625 County Ward Parish Tallebudgera…
LORRAINE MARGARET DE BRAY, as owner of the property did, in breach of Local Law damage, or ~~cause~~ permit to be damaged, protected vegetation (namely trees equal to or in excess of four metres in height and/or in excess of forty centimetres in girth DBH (Diameter Breadth Height) measured 1.3 metres above average ground level) contrary to section ~~5(1)~~ 3 and section 30 24 of Local Law 6 (Vegetation Management) in such case made and provided:
PARTICULARS
1. Approximately 97,100 square metres of vegetation have been damaged or destroyed on ~~Lots~~ 220 and 238 Petsch Creek Road, Tallebudgera. Based on a minimum average of 9 trees per 25 square metre area being protected vegetation within the meaning of the Local Law 6, this equates to an estimated total of 34,956 trees destroyed or damaged on the said properties.
The complaint was heard with an identical…

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 De Bray v. Cohen

Details

AGLC: De Bray v Cohen [2008] QDC 276
Case: [2008] QDC 276
Decision Date: 28 November 2008

CaseChat Overview and Summary

The case of De Bray v. Cohen involves an appeal by the appellant, De Bray, against a decision of the Magistrates Court. The nature of the dispute pertains to the refusal of the Magistrates Court to award the appellant costs, despite the successful outcome of a prosecution by a local authority. The central issues revolve around whether the appellant unreasonably declined an opportunity to explain their version of events prior to the charge being laid, whether such an explanation could have averted the prosecution, whether the appellant brought suspicion upon herself, and whether, as a result, she should be deprived of costs.

The court was required to determine whether the appellant's refusal to provide an explanation before the charge was laid was reasonable and whether this refusal could have potentially avoided the prosecution. Additionally, the court examined whether the appellant's actions led to the suspicion that prompted the local authority's prosecution, and whether these factors should influence the decision on costs. The reasoning of the court highlighted that the appellant did not unreasonably decline the opportunity to explain her version of events, and that such an explanation might have prevented the prosecution. The court found that the appellant did not bring suspicion upon herself and that her refusal to explain her position before the charge was laid did not warrant the denial of costs.

Consequently, the appeal was allowed, and the decision of the Magistrates Court to refuse the appellant’s application for costs was set aside. Instead, the court ordered that the complainant was to pay the appellant’s costs of the hearing in the Magistrates Court. This outcome underscores the importance of considering the reasonableness of a defendant's actions in declining to explain their version of events before a charge is laid, particularly in the context of determining the appropriateness of awarding costs.

Orders

Orders of the court

Appeal allowed; decision of the Magistrates Court to refuse the appellant’s application for costs set aside and in lieu thereof the complainant is to pay the appellant’s costs of the hearing in the Magistrates Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	De Bray v Cohen [2008] QDC 276
PARTIES:	LORRAINE MARGARET DE BRAY (Appellant) v JOHN NORMAN COHEN (Respondent)
FILE NO:	Appeal D166/07
PROCEEDING:	Appeal from Magistrates Court at Southport
DELIVERED ON:	28 November 2008
DELIVERED AT:	Southport
HEARING DATES:	26 – 28 May and 20 – 23 October 2008
JUDGE:	C.F. Wall Q.C.
ORDERS:	Appeal allowed; decision of the Magistrates Court to refuse the appellant’s application for costs set aside and in lieu thereof the complainant is to pay the appellant’s costs of the hearing in the Magistrates Court.
CATCHWORDS:	Appeal – Magistrates Court – prosecution by local authority – defendant successful – costs – whether defendant unreasonably declined an opportunity before charge was laid to explain defendant’s version of events – whether explanation could have avoided prosecution – whether defendant brought suspicion on herself – whether defendant should have been deprived of costs.
LEGISLATION:	Justices Act 1886 Sections 158(1) and 158A
COUNSEL	Appellant - Mr D H Denton SC Mr G R Allen Respondent - Mr C L Hughes SC Mr N S Skoien
SOLICITORS:	Appellant- Deacons Lawyers Respondent - Michael Sing Lawyers