Goli (Commissioner of State Revenue) v Thompson (No. 2)

[2017] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:

Goli (Commissioner of State Revenue) v Thompson & Anor (No. 2) [2017] QDC 24

PARTIES:

In Appeal No 3122 of 2016:

ELIZABETH LESLEY GOLI (COMMISSIONER OF STATE REVENUE)
(appellant)

v

BRADLEY THOMPSON
(respondent)

In Appeal No 3120 of 2016:

ELIZABETH LESLEY GOLI (COMMISSIONER OF STATE REVENUE)
(appellant)

v

BRENDAN MICHAEL THOMPSON
(respondent)

FILE NO/S:

3120/16 and 3122/16

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers. Appellant’s submissions undated.

Respondent’s submissions dated 7 February 2017.

JUDGE:

Smith DCJA

ORDER:

I order the respondents pay the appellant’s costs of and incidental to the appeal fixed in the sum of $1,800 to be paid jointly by the respondents.  1.     

Pursuant to s 15(2) of the Appeal Costs Fund Act 1973 (Q), I grant to the respondents an indemnity certificate in respect of the appeal. 2.     

CATCHWORDS:

COSTS – whether the respondents should pay the appellant’s costs of successful appeal – whether an indemnity certificate should be granted. 

Appeal Costs Fund Act 1973 (Q) s 15

Justices Act 1886 (Q) s 226

Goli (Commissioner of State Revenue) v Thompson & Anor [2017] QDC 4

Lauchlan v Hartley [1980] Qd R 149

COUNSEL:

Mr M. Van der Valt for the appellant

Ms S. Anderson for the respondents

SOLICITORS:

Crown law for the appellant

JHK Legal for the respondents

1. This is the costs decision consequent upon the decision in Goli (Commissioner of State Revenue) v Thompson & Anor.[1] 

   [1][2017] QDC 4.

1. The appellant submits that the respondents should pay her costs in the sum of $1,800. The respondents submit there should be no order as to costs or, alternatively, the respondents be issued with certificates pursuant to s 15 of the Appeal Costs Fund Act 1973 (Q).

1. In this case the magistrate, of his own volition, informed the prosecution that in his view the charges were improperly drawn.  This argument was not advanced by the respondent.  It is true that the respondents advanced an argument as to s 11(1) of the Code, but ultimately the ruling made by the magistrate was on the basis that the charges were improperly drawn.[2] 

   [2]The conduct of counsel is relevant to the exercise of the discretion on whether or not to grant a certificate (see Lauchlan v Hartley [1980] Qd R 149 at p 151.8).

1. Also, counsel who appeared for the respondents in the Magistrates Court did raise the fact that the alternative application was for a stay of the prosecution but that application was not entertained by the magistrate.  As I have found, the appropriate application to be considered in this case was one for a stay of the prosecution.

1. I also note that on the hearing of the appeal the respondents did not seek to uphold the magistrate’s conclusion as to the pleading of the charges and conceded that his honour acted functus officio.  It is true s 11 was argued but that was really a subsidiary legal point in respect of which there was not much authority. But in any event the point was fairly arguable.[3]

   [3]This is also a relevant consideration (see Lauchlan v Hartley [1980] Qd R 149 at p. 151.7).

1. In all of the circumstances, it is my opinion that the appellant should have her costs,[4] but that an indemnity certificate should be granted to the respondents under s 15 of the Appeal Costs Fund Act 1973 (Q).

   [4]Section 226 of the Justices Act 1886 (Q).

1. For the reasons given, my orders will be as follows:

1.        I order the respondents pay the appellant’s costs of and incidental to the appeal fixed in the sum of $1,800 to be paid jointly by the respondents. 

2. Pursuant to s 15(2) of the Appeal Costs Fund Act 1973 (Q), I grant to the respondents an indemnity certificate in respect of the appeal.