Guilfoyle v J Hutchinson Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 233

PARTIES:

AARON JOHN GUILFOYLE

(appellant)

v

J HUTCHINSON PTY LTD

(respondent)

FILE NO:

916/2021

DIVISION:

Crime

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Written Submissions on 16 & 20 September 2021

JUDGE:

Reid DCJ

ORDER:

1.   The appeal is allowed.

2.   The order of the Magistrate striking out the complaint is set aside.

3.   The matter is remitted to the Magistrates Court to the same Magistrate to determine paragraph 2 of the defendant’s application filed, 15 December 2020.

4.   If required, the matter then be remitted to a Magistrate other than the Magistrate who determined the matter initially to proceed according to law.

5.   The respondent to pay the appellant’s costs of the appeal fixed in the sum of $13,950.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – S 222 APPEAL – COSTS – whether the matter involved “special difficulty, complexity or importance” – whether, should the matter should be properly classified as one of special importance, costs ought to be awarded in accordance with the scale prescribed in Schedule 2 of the Justices Regulation 2014 (Qld)

LEGISLATION:

Justices Act 1886 (Qld) s 226, s 232A

Justices Regulation 2014 (Qld) sch 2 pt 1, s 4 sch 2

CASES:

Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 221

Guilfoyle v Niepe Constructions Pty Ltd [2021] QMC 1

Hickey v CMC [2008] QDC 340

Interclean Industrial Services Limited v Auckland Regional Council [2002] 3 NZLR 489

Whitby v Stockair Pty Ltd & Anor [2015] QDC 79

COUNSEL:

T Ward for the Appellant

P Roney QC and R J Byrnes for the Respondent

SOLICITORS:

Office of the Work Health and Safety Prosecutor for the Appellant

McCullough Robertson for the Respondent

Introduction

1. I have previously delivered written reasons to explain why I have concluded the learned Magistrate was in error in coming to the conclusion that she did.

2. The successful appellant now seeks an order for costs in the sum of $13,950.  It is submitted on his behalf that such a sum is just having regard to the “special importance of the appeal”.

3. The unsuccessful respondent:

   (i)opposes any order for costs against it; and

   (ii)in the alternative, submits any costs should be on the basis of the applicable scale in Sch 2 of the Justices Regulation 2014 (Qld).

   (iii)It is unnecessary to set out relevant statutory provisions, being ss 226 and 232A of the Justices Act 1886 (Qld) and Sch 2, Pt 1 of the Justices Regulation.

4. In essence:

   (i)costs are in my discretion, to be determined as I think just;

   (ii)costs are to be awarded only in accordance with the scale set out in Pt 2 of Sch 2 of the Justices Regulation 2014 (Qld), provided however that I may allow a “higher amount for costs” if to do so is “just having regard to the special difficulty, complexity or importance of the appeal.”

5. The appellant submits…