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 incurred by the appellant in relation to the appeal is not far short of $30,000.  Mr Allan and his instructing solicitor have not had time to analyse Ms Green's material.  Mr Allan has made some particular points about it which he says are contentious or might be, such as the inclusion of an amount paid to a legal costs assessor.  He says, and technically he's right, he'd be entitled to cross-examine the deponent.

I'm not for a moment suggesting that the Court ought to proceed on the basis that every dollar of the large amount referred to would be claimable.  The value of the affidavit is to give the Court some assurance which, in my opinion, can be taken from it, that it's not at risk of making a costs order in this appeal which would enrich the appellant. 

I remind the parties of the views I've expressed in reasons already published, to the effect that the prosecution may be seen as in a different position from a successful defendant.  The conditions under the Justices Regulation which entitle the Court to go above scale exist here.  The matter itself was complex (although less complex than at the trial), difficult and at least to the appellant and the local government, important, which is no reason necessarily for mulcting the respondents in costs.  Local government should be prepared to expend its own funds without hope of full recompense if it takes that view about what issues within its remit are important. 

Mr Allan makes an impressive point that his clients ought not to have to pay for the Magistrate's error, a fortiori if it's one to which the appellant might be seen as contributing. That's not the whole picture, however. The laws of the State make provision for circumstances like this in the Appeal Costs Fund Act 1973. I've just had a copy brought into Court. To this point the discussion has been on the basis that an order for costs would be made in favour of the appellant and an indemnity certificate provided to the respondents so that whatever they were ordered to pay the appellant would be the subject of a certificate under the Act.

I was wondering whether there may be some possibility of a direct order for costs.  Applying section 17 seems to depend on the respondents not appearing in the appeal.  Is that what Mr Fitzpatrick is saying?  Have you got that section there? 

MR MACSPORRAN:  But our understanding is that there's no method by which a direct payment can be made‑‑‑‑‑

HIS HONOUR:  I think that's right.  There would be if the conditions in section 17 was satisfied, but they're not.

MR MACSPORRAN:  Yes, it's not this case.

HIS HONOUR:  We can forget about that idea and the Court's driven back to the conventional position as I described it a moment ago.  Mr Allan has refrained from requesting an indemnity certificate for his clients although assuring the Court that they, not being here, will be informed of their entitlement to seek one.  In my opinion, the Court is entitled to take into account the availability of that possibility in determining what is the fair and just costs order to make in relation to the costs of the appeal.  I don't think the Court ought to be deterred by the respondents' inaction from making what seems to me an appropriate costs order given my view of the significance of the appeal succeeding to the extent that it has. 
I've indicated during argument and formally recorded in these reasons my willingness to sign a certificate in appropriate terms if one is provided by the respondents' solicitors.  I'm grateful to my Associate for retrieving from the records of the Judge for whom she worked through the year a precedent which has been made available to Mr Allan's instructing solicitor.  If a document in appropriate terms based on that form, or any other appropriate form, is tendered to me, I shall sign the certificate with a view to making available to the respondents the indemnity under consideration. 

By analogy to the approach which I took in the reasons published to the parties on the 16th of December 2008, Mr MacSporran submitted that the costs for the appeal under the Regulation (which enhances those for the Magistrates Court proceedings by 20 per cent), which come to $3,960, ought to be quadrupled. 

The rational basis for doing that in relation to the trial where there were four separate complaints doesn't exist any more since there was a single appeal.  That indeed was the circumstance that made the appeal unusually complex.  Mr MacSporran was ambushed by the point and indeed made supplementary submissions about it in writing. 

As it turned out, those didn't add to the authorities which Mr Allan in making the point had fairly placed before the Court.  That was the principal feature which made the appeal more complex and forced it into a second day. 
In the circumstances, I think there ought to be a 50 per cent loading. In relation to the costs of the appeal I order the respondents to pay the appellant's costs of the appeal fixed at $5,940. I indicate that if an appropriate certificate for indemnity under the Appeal Costs Fund Act 1973 is supplied to me for signature to protect the respondents against having to bear those costs ultimately, it will be signed. Though I appreciate the argument there that they ought to have costs of the aspect of the appeal in which they succeeded, I don't propose to make a separate order. I've taken that into account in arriving at the 50 per cent loading rather than a higher amount. These section 222 appeals are typically extremely brief and one which goes over to a second day is unusual indeed.

MR MACSPORRAN:  Your Honour, there's just one housekeeping matter.  It doesn't alter the orders you've made initially or today.

HIS HONOUR:  Yes?

MR MACSPORRAN:  But can I take your Honour to the primary reasons at paragraph 34 which is on page 13?

HIS HONOUR:  Yes?

MR MACSPORRAN:  It's the same copy I have.  It's the paragraph commencing, "These matters were complex" et cetera.

HIS HONOUR:  Yes.

MR MACSPORRAN:  Your Honour in the third sentence you say, "While accepting that the appellant's assertions about costs are not supported by any itemised account"‑‑‑‑‑

HIS HONOUR:  So‑‑‑‑‑

MR MACSPORRAN:  It's just a factual error, with respect.  Your Honour might remember on the last occasion, the second day of the appeal I think it was, we tendered a bundle of affidavit material which included a cost assessor's‑‑‑‑‑

HIS HONOUR:  Sorry, is it just the itemised account bit that's wrong?

MR MACSPORRAN:  Well, the fact that you say it's not supported‑‑‑‑‑

HIS HONOUR:  Were there vouchers and receipts?

MR MACSPORRAN:  Yes.

HIS HONOUR:  There were?  Oh, sorry.

MR MACSPORRAN:  There were counsel's memorandum of fees, there were affidavits that related to the professional costs incurred by counsel in-house.  All of the matters‑‑‑‑‑

HIS HONOUR:  All right.  I lost sight of that in all the excitement.  So I'll just ask that this exchange be transcribed and appear as part of the reasons.

MR MACSPORRAN:  Yes, thank you.  That's all that's sought to be done.  

HIS HONOUR:  All right.  Thank you gentlemen.  Compliments of the season.

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