Morley v. Senewiratne - [2008] QDC 325

[2008] QDC 325

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2980 of 2007

TANYA MORLEY	Appellant
and
BRIAN SENEWIRATNE AND KAMALINI SENEWIRATNE	Respondents

BRISBANE

..DATE 23/12/2008

ORDER

CATCHWORDS: Costs of appellant prosecutor of largely successful appeal under s 222 of the Justices Act 1886 instigated to obtain costs of the successful prosecution at first instance - scale amounts under the Justices Regulation increased in light of matter's complexity, difficulty and
importance - extent of respondent's success in resisting increases in fines considered - Court took into account its willingness to grant the respondents a certificate under the Appeal Costs Fund Act 1973 (although respondents were yet to decide whether to request one).

HIS HONOUR: I will make the orders that have been foreshadowed and see what else is to happen. The appeal is allowed. The Magistrate's orders made upon finding the charges proved against the respondents are set aside. New orders are made without convictions recorded: that the first respondent be fined $4,000, the second respondent $1,000, and that they pay the costs of the trial which are fixed in the amount of $41,180.65.

...

HIS HONOUR: The issue of the costs of the appeal has been argued. The appellant has been successful in what I think was plainly her principal goal of obtaining an order for costs of the proceeding, or proceedings since there were four separate ones, in the Magistrates Court albeit perhaps not in the same monetary amount as might have been hoped for. The appeal failed in respect of the inadequacy which the appellant said was glaring in the amounts of fines imposed by the Magistrate.

I proceed on the basis that the appeal would not have been instituted at all but for the costs factor. The appeal insofar as it asserted inadequacy of the fines, I would take as simply seizing on an additional point which might make the appeal a more conventional one. The respondents had a real success in the appeal in that for legal technical reasons the Magistrate's orders for fines were set aside. The new ones imposed on appeal were in identical amounts and not insubstantial.

Part of the appeal hearing related to the adequacy or otherwise of those fines. It's on that basis - and also I think with an added reference to the way in which the appellant conducted the case below - Mr Allan submits that a proper order for costs would be one in favour of his clients against the appellant. It's unsatisfactory to have costs looming as large as they do here. I think Mr Allan's argument is weakened, however, given the principal fight has been about costs. The principal victor, in my opinion, has been the appellant; that would make no order as to costs a tenable outcome; however, in the end, I think that is not the case.

Against Mr Allan's objection, I've allowed the reading and filing by leave of an affidavit by S F Green indicating that the amount of costs…

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.

Continue reading Morley v. Senewiratne

Details

AGLC: Morley v Senewiratne [2008] QDC 325
Case: [2008] QDC 325
Decision Date: 23 December 2008

CaseChat Overview and Summary

In the matter of Morley v. Senewiratne, the District Court of Queensland was asked to consider the costs associated with an appeal brought by Tanya Morley against Brian and Kamalani Senewiratne. The appeal concerned fines imposed by a magistrate, and Morley sought to overturn these fines as well as to recover the costs of the original proceedings. The respondents argued that the appeal was largely unsuccessful and sought to have the costs of the appeal awarded against Morley.

The primary legal issue before the court was the appropriate allocation of costs for the appeal, particularly given the appellant's success in overturning the magistrate's orders and the respondents' partial success in defending the appeal. The court had to consider the nature of the appeal, the level of success achieved by each party, and the potential impact of the Appeal Costs Fund Act 1973 on the cost allocation.

The court found that Morley had largely succeeded in her appeal, as she had achieved her primary goal of obtaining an order for the costs of the original proceedings. However, the appeal was not entirely without merit, as the respondents had successfully argued that the magistrate's orders should be set aside for legal technical reasons. The court acknowledged that the appeal was complex, difficult, and important, which justified an increase in the scale of costs under the Justices Regulation. The court also noted that the respondents had not requested an indemnity certificate under the Appeal Costs Fund Act 1973, which would protect them from having to pay the full costs of the appeal. Considering these factors, the court decided that a 50 per cent increase in the costs of the appeal was appropriate, bringing the total costs to $5,940. The court indicated its willingness to sign a certificate for indemnity if requested by the respondents.

The court set aside the magistrate's orders and imposed new fines of $4,000 on the first respondent and $1,000 on the second respondent, along with ordering them to pay the costs of the trial. The court also ordered the respondents to pay Morley's costs of the appeal, fixed at $5,940, with the possibility of an indemnity certificate under the Appeal Costs Fund Act 1973.

Orders