Phillips v Morris

[1998] QCA 47

IN THE COURT OF APPEAL	[1998] QCA 047
SUPREME COURT OF QUEENSLAND

Appeal No. 6094 of 1997

Brisbane

[Phillips v. Morris; ex parte D-G, Dept. of Families, Youth & Community Care]

BETWEEN:

CAROL ANNE PHILLIPS

(Applicant)

AND:

LEYANNE NOLA MORRIS

(Respondent) Respondent

EX PARTE:

THE DIRECTOR-GENERAL, DEPARTMENT OF

FAMILIES, YOUTH AND COMMUNITY CARE Appellant

Fitzgerald P
Davies JA

Williams J

Judgment delivered 20 March 1998

Judgment of the Court

APPEAL ALLOWED; ORDER TO REVIEW MADE ABSOLUTE; ORDER FOR COSTS

SET ASIDE.

CATCHWORDS:	CARE AND PROTECTION OF CHILD - costs - power of magistrate to award costs upon withdrawal of application - Children’s Services Act 1965, s. 49 - Justices Act 1886, s. 158A.
Counsel:	Mr K. Parrott (Solicitor) for the appellant No appearance for the respondent
Solicitors:	Crown Solicitor for the appellant No appearance for the respondent
Hearing Date:	10March1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6094 of 1997

Brisbane

Before Fitzgerald P.
Davies J.A.
Williams J.

[Phillips v. Morris; ex parte D-G, Dept. of Families, Youth & Community Care]

BETWEEN:

CAROL ANNE PHILLIPS

(Applicant)

AND:

LEYANNE NOLA MORRIS

(Respondent) Respondent

EX PARTE:

THE DIRECTOR-GENERAL, DEPARTMENT OF

FAMILIES, YOUTH AND COMMUNITY CARE	Appellant
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 March 1998

On 4 June 1997, a representative of the Director-General, Department of Families, Youth and

Community Care appeared in the Magistrates Court at Cairns and withdrew an application against the

respondent to this appeal for an order that an identified child be admitted to the care and protection of

the Director-General pursuant to s. 49 of the Children’s Services Act 1965. On the basis of what he

considered to be an inherent jurisdiction, the Magistrate ordered the appellant to pay the respondent’s

costs in the sum of $3,000. The question for determination on this appeal by order to review is whether

there was power to make such an order. Unfortunately, the respondent did not appear or file an outline of argument. Her sole involvement has been a request, by letter from her solicitors to the appellant’s

solicitor, for a certificate under the Appeal Costs Fund Act 1973 on the basis that she “... was

compelled to incur costs of both Counsel and this office on the bringing of the Appeal even though the

Appeal is not being contested”.

The Court was informed by the appellant that, when an application that a child be admitted to the care

and protection of the Director-General pursuant to s. 49 of the Children’s Services Act is withdrawn

or dismissed, there is no express power to order costs in the Children’s Services Act, the Children’s

Court Act or the Children’s Court Rules.[1] That appears to be so.

[1]             If r.9(3) of the Children’s Court Rules was in force at the material time, it did not authorise the order for costs which was made in this case.

Nor is there a provision in either that legislation or those rules which makes a power to award costs in

the Justices Act applicable in such circumstances.[2]

[2] Contrast s.52A(2) of the Children’s Services Act, the former s.21(2) of that Act, which was repealed by the Children’s Court Act, and sub-s. 53(1) of the Juvenile Justice Act 1992.

In the appellant’s extensive written outline of argument, the Court’s attention was drawn to s. 49(4) of

the Children’s Services Act. As submitted by the appellant, if it is not expressly inconsistent with such an order,[3] the language of that provision provides no basis for the Magistrate’s order for costs in the

[3] See s.49(4)(b) of the Children’s Services Act.

present case.
This Court’s attention was also drawn by the appellant to s. 158A of the Justices Act 1886, from which

the Magistrate “sought guidance”, although apparently recognising that it had no direct application. An

application for an order under s. 49 of the Children’s Services Act is not a “complaint”[4] for the

[4] See the definition of “complaint” in s. 4 of the Justices Act.

purposes of the Justices Act. Further, despite the reference to a breach of s. 46 of the Children’s

Services Act in one of the Magistrates Court documents, s. 46 does not create an offence but specifies

the circumstances in which a child is “deemed to be in need of care and protection”.[5] As the appellant

[5]             Cf. S. v. Minister for Youth & Community Services (1986) 23 A.Crim.R. 113.

submitted, its application was, in any event, not dismissed[6] but withdrawn.

[6] See s. 158A(1) of the Justices Act.

The Magistrates Court document referred to in the previous paragraph was headed:

“Advice of Conviction or Order
Justices Act 1886-1985

Queensland”

The appellant accordingly addressed submissions to the question whether some section in the Justices

Act other than s. 158A might have provided a basis for the Magistrate’s order for costs. No such

provision has been identified.[7]

[7] Contrast s. 19 of the Justices Act.

It remains to consider the Magistrate’s assertion of “inherent jurisdiction” to make the costs order

against the appellant. Whether or not such a power is properly described as “inherent jurisdiction”, the

Magistrates Court had any implicit power necessary to the effective exercise of its statutory jurisdiction under the Children’s Services Act, except to the extent that some other statutory provision is

inconsistent with the existence of such an implicit power.[8]
However, there is a body of authority against the implication of a power in the Magistrates Court to

[8]          Grassby v. R. (1989) 168 C.L.R. 1, 16. See also John Fairfax & Sons Ltd v. Police Tribunal of New South Wales (1986) 5 N.S.W.L.R. 465, 476-477; Attorney-General (New South Wales) v. Mayas Pty Ltd (1988) 14 N.S.W.L.R. 342.

award costs,[9] except perhaps incidentally to the prevention of an abuse of its process[10] or otherwise

[9]          R. v. The Justices of South Brisbane; ex p Zagami (1901) 11 Q.L.J. 81; Queensland Fish Board v. Bunney, Ex parte Queensland Fish Board [1979] Qd.R. 301; Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486, 488; Crowe v. Bennett, Ex parte Crowe [1993] 1 Qd.R. 57, 60-61.

[10]         Darcey v. Pre-Term Foundation Clinic [1983] 2 N.S.W.L.R. 497, 504.

protecting its function as a court.[11]

[11]         R. v. Forbes, Ex parte Bevan (1972) 127 C.L.R. 1, 8.

In summary, the Magistrate had no power to order the appellant to pay the respondent’s costs. The

order to review is made absolute, and the order for costs set aside. The statement of the orders sought

contained in the appellant’s written outline did not seek an order for the costs of this appeal against the

respondent, and no order is made. In the circumstances, the respondent should not be granted an

indemnity certificate.