Scanlon v Queensland Police Service - [2011] QDC 236

DISTRICT COURT OF QUEENSLAND

CITATION:

Scanlon v Queensland Police Service [2011] QDC 236

PARTIES:

JOHN SIMON SCANLON
(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO:

Appeal D2/10

DIVISION:

Appeals

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

10 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Written Submissions to 6 October 2011

JUDGE:

Andrews SC, DCJ

ORDER:

Order that the appellant pay $1,800 costs to be paid to the Registrar at Brisbane of the District Court of Queensland to be paid to the respondent within twelve months of today.

CATCHWORDS:

COSTS OF APPEAL – Justices Act s 222 appeal – where appellant unsuccessful – whether costs should follow the event – whether respondent’s failure to agree to change of venue was conduct disentitling it to costs – where respondent’s submissions unhelpful – whether unhelpfulness of the respondent’s submissions disentitled it to costs – where appellant had arguable appeal point – whether the appellant’s arguable point was sufficient basis to make no order as to costs – whether there is a practice in appeals from decisions involving a charge of public nuisance to make no order as to costs – whether there is a public interest basis to make no order as to costs of appeals from convictions for minor charges – whether costs should be assessed

Justices Act 1886 s 222, s 226, s 232 and s 232A

Justices Regulation2004 (Qld) Schedule 2 Part 2, Schedule 2 s 3

Latoudis v Casey (1990) 170 CLR 534

Yanner v Eaton [1999] HCA 69; (1999) 168 ALR 1

COUNSEL:

SOLICITORS:

Robinson and Robinson Lawyers for the Appellant

C A Bradley, Queensland Police Service Solicitor for the Respondent

The appellant, Mr Scanlon, was convicted of one count of public nuisance in the Longreach Magistrates Court on 25 August 2010. The public nuisance arose from his use of indecent language to two police officers in the earshot of members of the public in a public place. Mr Scanlon was fined $450 and no conviction was recorded. Mr Scanlon admitted the use of the language but denied an offence on several bases. One basis involved a question of principle. Essentially it was that in the circumstances in which he spoke to police officers his use of admitted language was not obscene. He appealed pursuant to s 222 of the Justices Act 1886 to the District Court of Queensland. The hearing was on 19 and 20 September 2011. The decision was handed down on 20 September 2011 and Mr Scanlon was unsuccessful in his appeal.

The Queensland Police Service (“QPS”), as respondent, sought costs. The QPS provided written submissions[1] and Mr Scanlon’s solicitor provided written submissions and supplementary submissions.[2]
[1]30 September 2011.
[2]3 and 6 October 2011.

The Justices Act s 226 applies. It provides:

“226 Costs
The Judge may make such order as to costs to be paid by either party as the Judge may think just.”

The Justices Act s 226 gives the Court a discretion to order costs “as…

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: [2011] QDC 236
Decision Date: 10 October 2011

CaseChat Overview and Summary

In Scanlon v Queensland Police Service, the respondent, the Queensland Police Service, successfully appealed against a conviction for public nuisance in the Magistrates Court, with the appellant, Mr Scanlon, now appealing the costs decision. The central issue before the court was whether there was a practice that costs of appeals from decisions involving a charge of public nuisance are not awarded and whether it was against public interest to make costs orders in such appeals. Ms Warwyk, appearing for Mr Scanlon, argued that there was a practice of not awarding costs in appeals from decisions involving a charge of public nuisance and that such orders would have public interest implications, potentially discouraging future appellants from challenging minor charges. The court analysed the cited cases and found them to be weak evidence of any trend, with only a few occasions where costs were raised, and those instances contradicted a trend to make no order. The court also considered the public interest implications, noting that while there may be negative implications for the appellant, there were also positive implications for the successful respondent, such as not being left to pay the legal costs of successfully defending appeals.

The court rejected the argument that there was a practice governing the exercise of the discretion to order costs in the case of an appeal from a conviction for public nuisance. The court also found that the public interest implications did not persuade it to refuse the QPS its costs in this case. The court concluded that the appellant should pay $1,800 costs to be paid to the Registrar at Brisbane of the District Court of Queensland to be paid to the respondent within twelve months of today.

Orders

Orders of the court

Order that the appellant pay $1,800 costs to be paid to the Registrar at Brisbane of the District Court of Queensland to be paid to the respondent within twelve months of today.

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

Is there a practice that costs of appeals from decisions involving a charge of public nuisance are not awarded? Ms Warwyk referred me to the reasons in twelve cases relating to appeals from decisions involving a charge of public nuisance. She submitted that the cases show that costs are very rarely awarded against the losing party. An extract from her submission follows: Analysis of the published reasons at those references leads me to reject the submission. They are not authority for principles relating to costs of appeals. They are weak evidence of any trend. If anything, the few occasions where costs were raised were occasions which contradict a trend to make no order. They contain little or no analysis of the appropriateness of orders for costs against unsuccessful parties to appeals. In Dowling v Robinson [2005] QDC 171 costs were awarded against the losing party. In the reasons for cases numbered 2, 4, 5, 6, 7, 8, 9 and 11 there was no mention of appeal costs and no indication as to whether costs were sought after delivery of the reasons. For case 3, the submission is not correct that the reasons suggest no order was made as to costs. His Honour observed that he would hear the parties as to costs of the appeal. In case 10 costs of the appeal were reserved. The passage quoted from case 10 has to do with costs before the magistrate and is not concerned with costs of the appeal. In case 12 the appellant appeared in person. There was no indication as to whether costs were sought after delivery of the reasons. There would have been no legal costs to award to the successful litigant in person, save perhaps if there was a filing fee for a notice of appeal. I am not persuaded by the cases cited that there is a rule or practice which governs or relates to the exercise of the discretion provided for at Justices Act s 226 to order costs in the case of an appeal from a conviction for public nuisance. Is it against public interest to make costs orders in appeals related to public nuisance? Ms Warwyk submitted that if costs are awarded against Mr Scanlon it would also have public interest implications as it would possibly discourage future appellants from similarly challenging minor charges. It was not suggested expressly that the appeal was a matter of public interest. If that was intended, I note that in Yanner v Eaton [1999] HCA 69; (1999) 168 ALR 1 it was observed in a joint judgment of the full bench of the High Court that costs of the unsuccessful appeal to the Court of Appeal and of the successful appeal to the High Court should follow the event in the High Court, and that the importance of the point which the respondent maintained should not change the order for costs against the respondent. The fact that an appellant may be discouraged from appealing from a conviction for a minor charge if the appellant anticipates that the appellant may be ordered to pay compensatory costs to the other party if the appeal is unsuccessful does have public interest implications. The implications were not explored in the submission. The reference in the submission to public interest makes the submission appear superficially to have a moral force. The implications are many and are both positive and negative for the appellant. It is unfortunate if meritorious appeals will not be brought because an appellant fears an order for costs if the appeal fails. It is fortunate that successful respondents are not left to pay the legal costs of successfully defending appeals and especially where the appeal is instigated by another. The fact that appellants may be concerned about orders for costs when considering whether to appeal from convictions for minor matters does not persuade me that successful respondents must pay their own legal costs as a general rule or that the QPS should be refused its costs in this case.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Scanlon v Queensland Police Service [2011] QDC 236
PARTIES:	JOHN SIMON SCANLON (Appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO:	Appeal D2/10
DIVISION:	Appeals
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	10 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Written Submissions to 6 October 2011
JUDGE:	Andrews SC, DCJ
ORDER:	Order that the appellant pay $1,800 costs to be paid to the Registrar at Brisbane of the District Court of Queensland to be paid to the respondent within twelve months of today.
CATCHWORDS:	COSTS OF APPEAL – Justices Act s 222 appeal – where appellant unsuccessful – whether costs should follow the event – whether respondent’s failure to agree to change of venue was conduct disentitling it to costs – where respondent’s submissions unhelpful – whether unhelpfulness of the respondent’s submissions disentitled it to costs – where appellant had arguable appeal point – whether the appellant’s arguable point was sufficient basis to make no order as to costs – whether there is a practice in appeals from decisions involving a charge of public nuisance to make no order as to costs – whether there is a public interest basis to make no order as to costs of appeals from convictions for minor charges – whether costs should be assessed Justices Act 1886 s 222, s 226, s 232 and s 232A Justices Regulation2004 (Qld) Schedule 2 Part 2, Schedule 2 s 3 Latoudis v Casey (1990) 170 CLR 534 Yanner v Eaton [1999] HCA 69; (1999) 168 ALR 1
COUNSEL:
SOLICITORS:	Robinson and Robinson Lawyers for the Appellant C A Bradley, Queensland Police Service Solicitor for the Respondent