Hemelaar v Brisbane City Council (No. 2)

[2017] QDC 34

DISTRICT COURT OF QUEENSLAND

CITATION:

Hemelaar v Brisbane City Council (No. 2) [2017] QDC 34

PARTIES:

RYAN NICHOLAS HEMELAAR

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

3922 of 2016

DIVISION:

Criminal

PROCEEDING:

Appeal under s 222 of the Justices Act1886 (Qld)

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

27 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Everson DCJ

ORDER:

The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,000.00 to the registrar within three months.

CATCHWORDS:

CRIMINAL LAW – APPEAL – COSTS – where a higher amount is justified having regard to the special difficulty, complexity or importance of the appeal

Justices Act 1886 (Qld)

Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111

Environmental Protection Authority v Alkem Drums Pty Ltd (1996) 93 LGERA 83

Smith v Ash [2010] QCA 112

COUNSEL:

SC Fisher for the appellant

MJ Byrne QC for the respondent

SOLICITORS:

The Brisbane City Legal Practice for the respondent

Introduction

1. This is an application for costs by the respondent following the dismissal of the appellant’s appeal on 7 February 2017. 

1. Pursuant to s 226 of the Justices Act 1886 (“JA”), I may make such order as to costs to be paid by either party as I “may think just”. Section 232A thereafter states:

“232A    Costs for division

(1) In deciding the costs that are just for this division, the judge 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.

(2) However, the judge may allow a higher amount for costs if the judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.”

1. The respondent submits that the appeal was of such special difficulty, complexity or importance that I should allow a higher amount for costs than is provided for under the scale.[1]

   [1]Justices Regulation 2014, Schedule 2 Part 2.

Special difficulty, complexity or importance of the appeal

1. The appeal concerned whether or not the appellant was entitled to assemble with others in the Queen Street Mall and engage in evangelical activities.  These included addressing the public, distributing literature and providing free bibles while utilising a sketch board and easel, signs and banners.[2]  The appellant asserted that he was not subject to the restrictions placed on such activities by the Public Land and Council Assets Local Law 2014 (Qld) (“the Local Law”).   He asserted that this was because the Peaceful Assembly Act1992 (Qld) (“PAA”) prevailed over the Local Law making the activities referred to above lawful.[3] Pursuant to the PAA, the appellant gave 111 separate notices of intention to assemble in the Queen Street Mall for six hours at a time.[4] 

   [2]RJ [4].

   [3]RJ [10].

   [4]RJ Magistrates Court [23].

1. The eight breaches of the Local Law, the subject of the…