Mansell v Acting Magistrate Luxton and Anor (No.3) - [2010] FMCA 575

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANSELL v ACTING MAGISTRATE LUXTON & ANOR (No.3)

[2010] FMCA 575

ADMINISTRATIVE LAW – Costs application – successful application for judicial review – application by successful applicant for costs – consideration of legislation – factors to consider in exercising discretion – order made.

Administrative Decisions (Judicial Review) Act 1977
Federal Magistrates Act 1999, s.79
Federal Magistrates Court Rules 2001 (Cth)

Applicant:

CAMERON JAMES MANSELL

First Respondent:

ACTING MAGISTRATE SCOTT LUXTON

Second Respondent:

COMMISSIONER OF QUEENSLAND POLICE SERVICE

File Number:

BRG 519 of 2010

Judgment of:

Coker FM

Hearing date:

In Chambers

Date of Last Submission:

6 July 2010

Delivered at:

Townsville

Delivered on:

29 July 2010

REPRESENTATION

Solicitors for the Applicant:

Stevenson & McNamara

Solicitors for the 1^st Respondent:

Excused from further participation

Solicitors for the 2^nd Respondent:

QPS Solicitor’s Office

ORDERS

That the 2^nd Respondent pay the Applicant’s costs and disbursements of and incidental to the Application heard in the Federal Magistrates Court of Australia at Townsville on 1 June 2010 as agreed between the parties and, failing agreement, as taxed in accordance with the scale of costs in Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

BRG 519 of 2010

CAMERON JAMES MANSELL

Applicant

And

ACTING MAGISTRATE SCOTT LUXTON

First Respondent

COMMISSIONER OF QUEENSLAND POLICE SERVICE

Second Respondent

REASONS FOR JUDGMENT

On 1 June 2010 I gave judgment in relation to the proceedings before me, brought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act. Those orders included specifically an opportunity for both parties to be heard in relation to costs.
Order 3 of the orders of 1 June 2010 was in these terms:
That there be liberty to apply within 28 days in relation to any application for costs with written submissions and, unless otherwise requested, for determination in chambers.
Written submissions have been received on behalf of both parties in relation to this matter, though it should be noted, that the applicant who was successful in the principal application seeks costs and the position taken by the second respondent, the Commissioner of Police Queensland, is simply to oppose any order and to say that each party should bear their own costs, in relation to the proceedings.
The submission that is made on behalf of the applicant in respect of the proceedings relates to the contention principally put forward that the applicant was successful and that, as that was the case, that with costs following the cause as is normal in proceedings of this nature, that costs should be paid by the second respondent, the Commissioner of the Queensland Police Service.
The power to award costs in this Court is clear. Section 79 of the Federal Magistrates Act 1999 provides the Court with the power to award costs in matters which are not of a family law nature.
Section 79(1) through (3) are in these terms:
(1)This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009.
(2)The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.
Part 21 of the Federal Magistrates Court Rules sets out the relevant position in relation to any determination to make an order in relation to costs. Part 21 of the Federal Magistrates Court Rules and, in particular, 21.02 is in these terms:
(1)    An application for an order for costs may be made:
(a)at any stage in a proceeding; or
(b)within 28 days after a final decree or order is made; or
(c)within any further time allowed by the Court.
(2)    In making an order for costs in a proceeding, the Court may:
(a)     set the amount of the costs; or
(b)    set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.
Quite clearly, the discretion to order costs is absolute and unfettered. It must, however, be exercised in a judicial manner. There are no special provisions for proceedings under the provisions of the Administrative Decisions (Judicial Review) Act.
What is clear is that consideration must be given to the circumstances that arose in relation to the matter. Quite simply, the application was brought about as a result of the basis upon which an order was obtained for the extradition of the applicant Cameron James Mansell to Western Australia.
I subsequently found that the exercise of power in relation to this matter and, in particular, that which lead to obtaining the orders for extradition were flawed. As a result of that finding, the proceedings were remitted to the Acting Magistrate, Mr Luxton, who had heard the extradition application, for determination in accordance with law.
It is clear that the procedures to be followed in relation to extradition or, of course, any matter of an administrative or judicial nature must be conducted in an appropriate and proper manner.
Whilst it was the case that the intent and, in fact, the ultimate outcome was one which resulted in the applicant being extradited to Western Australia, the fact is that the difficulties that arose in relation to extradition, at least before this Court when determining the matter pursuant to administrative decision judicial review legislation, was that there had not been a proper course followed, in relation to the obtaining of the necessary documentation in Western Australia.
It is clear, in my assessment, that the proceedings before this Court were brought as a result of the inappropriate circumstances that lead to the granting of the order for extradition.
It was clear that the cause of the problems, as was submitted on the part of the applicant in the written submissions with regard to the issue of costs, resulted from the actions or, perhaps, the non-actions in properly completing documentation, by officers of the West Australian Police Force.
The failure to sign the required documents in the appropriate manner led to the invalidity of the warrant. The fact that the matter was subsequently rectified and a fresh warrant was issued which lead to the extradition of the applicant to Western Australia is inconsequential in relation to the determination of this particular aspect of the matter.
There was, if you like, an element of public interest that had to be addressed in relation to the proceedings. As I said in the reasons that I gave in relation to the principal application, whilst there is an obvious need for there to be support of those police officers required to enforce the laws, there is just as clearly an obligation for those police officers to operate within the confines of the law and to be expected to act in an appropriate manner and in accordance with the requirements of the law.
The application was justified. The applicant was wholly successful in relation to the proceedings and it is appropriate, in my assessment, that there should be an order made for costs.
It is noteworthy that the second respondent particularly noted, that if a costs order was to be made against the second respondent, it should be limited solely to the proceedings of 1 June 2010.
The reason for that argument stems from the fact that the original proceedings brought in this Court sought a remedy against the first respondent, Acting Magistrate Scott Luxton.
Quite clearly, and it was noted to be the case on that day, the first respondent was in fact not the proper contradictor to the application that was made.
The orders that were made on 26 May 2010 were orders designed simply to provide an opportunity for the proper contradictor to be named and for there to be the opportunity for the case to be properly heard, according to law.
I am satisfied, therefore, that it would not be appropriate for there to be an order made in relation to costs incurred as a result of the bringing of the first application or, at least, the preliminary application, if I might describe it that way, on 26 May 2010.
It was an application sought in order to at least preclude the extradition of the applicant to Western Australia, pending determination in accordance with law. It was, however, brought against the wrong respondent and that was acknowledged. The appropriate course was that which was followed on 1 June 2010 when the Commissioner of the Queensland Police Service was named as the appropriate contradictor and the second respondent. The Commissioner of the Queensland Police Service was represented at the determination of the proceedings.
I am satisfied, as I indicated, therefore, that whilst costs should be ordered in relation to this matter, they should only relate to the determination of the application on 1 June 2010 and, of course, to the preparation of documentation relating to such an application. Accordingly, I order that the 2^nd Respondent pay the Applicant’s costs and disbursements of and incidental to the Application heard in the Federal Magistrates Court of Australia at Townsville on 1 June 2010 as agreed between the parties and, failing agreement, as taxed in accordance with the scale of costs in Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:

Date: 2 August 2010