Power v Lewis

[2007] QDC 188

DISTRICT COURT OF QUEENSLAND

CITATION:	Power v Lewis [2007] QDC 188
PARTIES:	DAVID LESLIE POWER
Appellant and
JOHN EDWARD LEWIS
Respondent
FILE NO/S:	196/07
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	24 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2007
JUDGE:	Samios DCJ
ORDER:	Appeal allowed. The respondent to pay the appellant’s costs to be awarded at a higher amount than prescribed by regulation
CATCHWORDS:	APPEAL – JUSTICES – rehearing – costs upon dismissal of complaint
Justices Act 1886 ss 158 and 158A House v The King (1936) 55 CLR 499, 504-5 Murray v Radford (2003) QCA 91
COUNSEL:	Mr McCafferty for the appellant Mr Davis SC for the respondent
SOLICITORS:	Nyst Lawyers for the appellant Crime and Misconduct Commission for the respondent

1. The appellant is a Local Government Councillor and the Deputy Mayor of the Gold Coast City Council.

2. On 11 April 2006, the Crime and Misconduct Commission took out a complaint against the appellant charging him with giving a document to the Commission containing false and misleading information in two material particulars. The matter was heard over a period of three days from 21 August 2006. The complainant was represented by Mr Rafter SC and the appellant by Mr Temby QC.

3. The maximum penalty for the offence was 85 penalty units or one year’s imprisonment. The appellant could also, if found guilty, have been ordered to pay an amount for compensation for the cost of the investigation.

4. The learned Magistrate found there was no case to answer in relation to one of the particulars of the complaint. He adjourned the case for decision. The learned Magistrate acquitted the appellant of the remaining particular of the complaint. The learned Magistrate published his reasons for doing so.

5. The appellant sought costs upon the dismissal of the complaint. That was opposed by the complainant.

6. The appellant sought costs in the sum of $102,461.21, being the amount billed by the appellant’s lawyers.

7. The learned Magistrate was not satisfied that in the case before him it was appropriate to make an order as to costs. The learned Magistrate also observed that even if he was prepared to make an order for costs, the material provided by the appellant was simply insufficient to come to any conclusion as to whether the costs sought were just and reasonable. Particulars of the costs only in very general terms apparently had been provided.

8. The appellant appeals against the learned Magistrate’s decision not to make an order as to costs. Firstly, the appellant contends the learned Magistrate erred in the exercise of his discretion not to order costs and secondly, he ought to have assessed the costs.

9. On the hearing of the appeal, the appellant sought to tender an affidavit from his lawyers and particulars of costs. The respondent objected to the tender of the affidavit and particulars of costs on the grounds that special grounds did not exist to receive the affidavit and particulars of costs as new evidence. I reserved my…