Logan City Council v Brookes (No 2) - [2020] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Logan City Council v Brookes (No 2) [2020] QDC 221

PARTIES:

STEPHEN BALL ON BEHALF OF LOGAN CITY COUNCIL
(appellant)

v

THOMAS JOSEPH BROOKES
(respondent)

FILE NO/S:

BD No 3519 of 2018
MC No 20650 of 2017

DIVISION:

PROCEEDING:

Appeal – Further Order

Application for Costs

ORIGINATING COURT:

Magistrates Court at Beenleigh – Date of Delivery of Decision: 29 August 2018

DELIVERED ON:

9 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Jarro DCJ

ORDER:

1.        The respondent pay a penalty of $10,500.

2.        The respondent remove the shipping containers            from the property within 60 days.

3.        The respondent pay the appellant’s costs in the            Magistrates Court proceeding to the value of            $2,971.15.

4.        The respondent pay the appellant’s costs in the            appeal to this court to the value of $6,071.47.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – SENTENCE – where the respondent has been found guilty of seven counts of breaching s 578 of the Sustainable Planning Act 2009 – where the relevant maximum penalty is 1665 units – where the appellant submits that a penalty of $7,000 to $14,000 should be imposed – where the respondent submits that no penalty should be imposed – whether and in what amount a penalty should be imposed

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the appellant appealed a decision of the Magistrates Court which dismissed seven complaints of carrying out assessable development without a permit – where the appellant was successful on appeal in this court – where the appellant makes an application for costs for the costs of the Magistrates Court trial – whether there are special circumstances which would warrant the appellant not being entitled to receiving costs

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the appellant appealed a decision of the Magistrates Court which dismissed seven complaints of carrying out assessable development without a permit – where the appellant was successful on appeal to this court – where the appellant makes an application for costs for the costs of the appeal to this court – where the appellant submits that pursuant to s 232A(2) of the Justices Act 1886 the appellant should be awarded costs in an amount in excess of the scale – whether the appeal was attended by special difficulty, complexity or importance

Justices Act 1886, s 157, s 158, s 225, s 226, s 232A

Planning Act 2016, s 176

Sustainable Planning Act 2009, s 578

Baker v Smith(No 2) [2019] QDC 242, applied.

Cullinan v McCahon [2014] QDC 120, applied.

Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169, distinguished.

Latoudis v Casey (1990) 170 CLR 534, cited.

Schaftenaar v Samuels (1975) 11 SASR 266, followed.

Smith v Ash [2011] 2 Qd R 175, cited.

COUNSEL:

K Wylie for the appellant
The respondent appeared on his own behalf

SOLICITORS:

MinterEllison–Gold Coast for…

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.

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Details

Case: [2020] QDC 221
Decision Date: 9 September 2020

CaseChat Overview and Summary

The case of Logan City Council v Brookes (No 2) involved the respondent being found guilty of seven counts of breaching section 578 of the Sustainable Planning Act 2009, which pertains to carrying out assessable development without a permit. The respondent's maximum penalty was 1665 penalty units, and the appellant sought a penalty between $7,000 and $14,000, while the respondent argued for no penalty. The court had to determine the appropriate penalty and whether the appellant was entitled to costs.

The court considered the nature of the respondent's breaches, which were serious and deliberate, involving multiple instances of carrying out assessable development without a permit. The court also evaluated the arguments presented by both parties regarding the penalty and the entitlement to costs. In determining the penalty, the court took into account the seriousness of the breaches, the respondent's lack of remorse, and the need to deter future breaches. The court decided on a penalty of $10,500, considering it a balance between punishment and deterrence.

Regarding the costs, the court examined whether there were special circumstances that would warrant the appellant not receiving costs. The court found that the appellant was entitled to costs for both the Magistrates Court proceeding and the appeal to this court. The court determined the costs to be $2,971.15 for the Magistrates Court and $6,071.47 for the appeal. The court found that the appeal was not attended by special difficulty, complexity, or importance, and thus the appellant was entitled to the costs as per section 232A(2) of the Justices Act 1886.

The court ordered the respondent to pay a penalty of $10,500, remove the shipping containers from the property within 60 days, and pay the appellant's costs for both the Magistrates Court proceeding and the appeal to this court.

Orders

Orders of the court

1. The respondent pay a penalty of $10,500.

2. The respondent remove the shipping containers from the property within 60 days.

3. The respondent pay the appellant’s costs in the Magistrates Court proceeding to the value of $2,971.15.

4. The respondent pay the appellant’s costs in the appeal to this court to the value of $6,071.47.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Logan City Council v Brookes (No 2) [2020] QDC 221
PARTIES:	STEPHEN BALL ON BEHALF OF LOGAN CITY COUNCIL (appellant) v THOMAS JOSEPH BROOKES (respondent)
FILE NO/S:	BD No 3519 of 2018 MC No 20650 of 2017
DIVISION:
PROCEEDING:	Appeal – Further Order Application for Costs
ORIGINATING COURT:	Magistrates Court at Beenleigh – Date of Delivery of Decision: 29 August 2018
DELIVERED ON:	9 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Jarro DCJ
ORDER:	1. The respondent pay a penalty of $10,500. 2. The respondent remove the shipping containers from the property within 60 days. 3. The respondent pay the appellant’s costs in the Magistrates Court proceeding to the value of $2,971.15. 4. The respondent pay the appellant’s costs in the appeal to this court to the value of $6,071.47.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – SENTENCE – where the respondent has been found guilty of seven counts of breaching s 578 of the Sustainable Planning Act 2009 – where the relevant maximum penalty is 1665 units – where the appellant submits that a penalty of $7,000 to $14,000 should be imposed – where the respondent submits that no penalty should be imposed – whether and in what amount a penalty should be imposed CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the appellant appealed a decision of the Magistrates Court which dismissed seven complaints of carrying out assessable development without a permit – where the appellant was successful on appeal in this court – where the appellant makes an application for costs for the costs of the Magistrates Court trial – whether there are special circumstances which would warrant the appellant not being entitled to receiving costs CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the appellant appealed a decision of the Magistrates Court which dismissed seven complaints of carrying out assessable development without a permit – where the appellant was successful on appeal to this court – where the appellant makes an application for costs for the costs of the appeal to this court – where the appellant submits that pursuant to s 232A(2) of the Justices Act 1886 the appellant should be awarded costs in an amount in excess of the scale – whether the appeal was attended by special difficulty, complexity or importance Justices Act 1886, s 157, s 158, s 225, s 226, s 232A Planning Act 2016, s 176 Sustainable Planning Act 2009, s 578 Baker v Smith(No 2) [2019] QDC 242, applied. Cullinan v McCahon [2014] QDC 120, applied. Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169, distinguished. Latoudis v Casey (1990) 170 CLR 534, cited. Schaftenaar v Samuels (1975) 11 SASR 266, followed. Smith v Ash [2011] 2 Qd R 175, cited.
COUNSEL:	K Wylie for the appellant The respondent appeared on his own behalf
SOLICITORS:	MinterEllison–Gold Coast for…