Morley v Senewiratne & Anor - [2008] QDC 296

DISTRICT COURT OF QUEENSLAND

CITATION:

Morley v Senewiratne & Anor [2008] QDC 296

PARTIES:

TANYA MORLEY

(Complainant/Appellant)

v

DR BRIAN SENEWIRATNE

(First Defendant / First Respondent)

and

KAMALINI SENEWIRATNE

(Second Defendant / Second Respondent)

FILE NO/S:

2980/07

DIVISION:

Appellate

PROCEEDING:

Appeal by complainant under s222 of the Justices Act 1886 against sentences and Magistrate’s failure to award costs

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 November 2008, appellant’s written submissions regarding “preliminary points” dated 5 December 2008

JUDGE:

Robin QC DCJ

ORDER:

Appeal allowed, Magistrate’s orders made upon finding charges proved set aside, orders made (without convictions recorded) for First and Second Respondents to be fined $4,000 and $1000 respectively and that they pay the appellant’s costs of the trial as fixed

CATCHWORDS:

Justices Act 1886 s 157, s158B, s159, s222 – Justices Regulation 2004 Scale of Costs for Legal Professional Work – Prosecutor Appeal against Magistrate’s pronouncing sentences prematurely, so as to preclude making an order for costs – submission that fines imposed were inadequate rejected – whether a single notice of appeal permissible where husband and wife had been convicted on complaints (two each) charging them separately – matters before Magistrate complex – appropriate to order costs in excess of scale

COUNSEL:

MacSporran SC and Fitzpatrick for appellant

Allan for Respondent

SOLICITORS:

Brisbane City Legal Practice for appellant

Deacons for respondents

Years before the events underlying the present proceeding, on 1 July 1991 David Robert Carter executed a deed which recited the agreement of the Crown in right of the State of Queensland by its servants and agents not to proceed with certain charges against him whose operative parts “plainly precluded…seeking costs upon the dismissal of those charges.” See Bell v Carter [1992] QCA 245 at p 3. Later on that day a Magistrate dismissed both charges. Mr Carter’s counsel then applied for costs. The Magistrate, not informed of the terms of the deed, exercised his discretion to grant costs:

“…However, his endorsement on the bench charge sheet indicates that on that day he dismissed the charge, ordered that the appellant pay the respondent’s costs, and adjourned the quantum of those costs to a date to be fixed.
Each of these orders is contrary to s 159 of The Justices Act 1886 which provides:
‘The sum so allowed for costs shall in all cases be specified
in the conviction or order or order of dismissal, or order striking out a complaint for want of prosecution.’

There can be no doubt that on 1 July 1991 the Magistrate dismissed the charges. The only question in doubt is whether he made an order for costs leaving quantum to be fixed at a later date, or made no order for costs at all on that date notwithstanding an intimation of his intention to do so. It is not necessary to decide which of these courses he took. Both were beyond power. If an order for costs is to be made in relation to…

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: [2008] QDC 296
Decision Date: 16 December 2008

CaseChat Overview and Summary

The appeal in Morley v Senewiratne & Anor was heard before the District Court of Western Australia. The appellant, Morley, appealed against the magistrate's decision to pronounce sentences prematurely, which precluded making an order for costs. The magistrate had convicted the first and second respondents, Senewiratne and his wife, on separate charges brought by Morley. The respondents, represented by legal counsel, argued that the fines imposed were inadequate and that a single notice of appeal was permissible for their joint convictions. The court had to decide if the magistrate's premature pronouncement of sentences precluded an order for costs, whether the fines were inadequate, and if a single notice of appeal was permissible for joint convictions on separate charges.

The court examined whether the magistrate's premature pronouncement of sentences precluded an order for costs. It considered whether the respondents' legal counsel had made an effective submission that the fines were inadequate. The court also assessed if a single notice of appeal was permissible for joint convictions on separate charges, each involving distinct allegations against each respondent. The court's decision was influenced by the complexity of the matters before the magistrate and the necessity to ensure that the respondents received fair treatment in the appeal process.

The court allowed the appeal and set aside the magistrate's orders made upon finding the charges proved. It ordered that without recording convictions, the first and second respondents were to be fined $4,000 and $1,000 respectively and to pay the appellant's costs of the trial as fixed. The court found that the magistrate's premature pronouncement of sentences did not preclude making an order for costs and rejected the submission that the fines imposed were inadequate. It also ruled that a single notice of appeal was permissible for the joint convictions on separate charges, given the complexity of the matters before the magistrate. The court concluded that the costs awarded should reflect the complexity of the matters and the necessity to ensure fair treatment of the respondents.

Orders

Orders of the court

Appeal allowed, Magistrate’s orders made upon finding charges proved set aside, orders made (without convictions recorded) for First and Second Respondents to be fined $4,000 and $1000 respectively and that they pay the appellant’s costs of the trial as fixed

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:	Morley v Senewiratne & Anor [2008] QDC 296
PARTIES:	TANYA MORLEY (Complainant/Appellant) v DR BRIAN SENEWIRATNE (First Defendant / First Respondent) and KAMALINI SENEWIRATNE (Second Defendant / Second Respondent)
FILE NO/S:	2980/07
DIVISION:	Appellate
PROCEEDING:	Appeal by complainant under s222 of the Justices Act 1886 against sentences and Magistrate’s failure to award costs
ORIGINATING COURT:	Brisbane
DELIVERED ON:	16 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7 November 2008, appellant’s written submissions regarding “preliminary points” dated 5 December 2008
JUDGE:	Robin QC DCJ
ORDER:	Appeal allowed, Magistrate’s orders made upon finding charges proved set aside, orders made (without convictions recorded) for First and Second Respondents to be fined $4,000 and $1000 respectively and that they pay the appellant’s costs of the trial as fixed
CATCHWORDS:	Justices Act 1886 s 157, s158B, s159, s222 – Justices Regulation 2004 Scale of Costs for Legal Professional Work – Prosecutor Appeal against Magistrate’s pronouncing sentences prematurely, so as to preclude making an order for costs – submission that fines imposed were inadequate rejected – whether a single notice of appeal permissible where husband and wife had been convicted on complaints (two each) charging them separately – matters before Magistrate complex – appropriate to order costs in excess of scale
COUNSEL:	MacSporran SC and Fitzpatrick for appellant Allan for Respondent
SOLICITORS:	Brisbane City Legal Practice for appellant Deacons for respondents