Smith v. Ash

[2009] QDC 234

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Ash [2009] QDC 234

PARTIES:

Mykel Anthony Smith
(Appellant)

and

Rachael Ash
(Respondent )

FILE NO

D228/08

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Townsville

DELIVERED ON:

03 August 2009

DELIVERED AT:

Townsville

HEARING DATE:

20 July 2009

JUDGE:

Durward SC DCJ

ORDERS:

1.   Appeal allowed.

2.   Vary the order/decision of the Magistrates Court made on 07 August 2008 by setting aside the refusal to award professional costs and in lieu thereof order the respondent to pay to the appellant $75.00 professional costs

3.   No order as to costs.

CATCHWORDS:

PARKING INFRINGEMENT – local authority – recovery process – Magistrates Court proceeding – employed solicitor appearing on hearing of ex parte complaint and seeking court costs and professional costs – order for court costs made – order for professional costs refused.

PROFESSIONAL COSTS – refusal to award professional costs – whether discretion miscarried.

LAWYERS – right to legal representation upon hearing of complaint – s72 Justices Act 1886.

ENFORCEMENT OF PENALTIES – whether procedures provided in State Penalties Enforcement Act 1999 preclude recovery of professional costs if administering authority elects to recover unpaid fee by court proceeding – consideration of s16 of Act.

EXERCISE OF DISCRETION – whether evidence upon which exercised – whether reasons for refusal proper – whether exercised properly and relevantly - whether error in exercise.

Justices Act 1886ss72, 157,158B; Justices Regulation 2004 sch2 s3;State Penalties Enforcement Act 1999 ss16, 22, 27 and part 4.

Latoudis v Casey (1990) 170 CLR 534; Coulter v Ryan (2006) QCA 567; House v R (1936) 55 CLR 504.

COUNSEL:

R G Bain QC for the appellant
J A Greggery  for the respondent

SOLICITORS:

Townsville City Solicitor for the appellant
Anderson Telford Lawyers for the respondent

The Charge

1. The appellant is a public officer and employee of the Townsville City Council.

1. The appellant made a complaint against the respondent pursuant to s 106(1)(a)(i) of the Transport Operations (Road Use Management)Act 1995, namely parking a vehicle in a designated parking space when a parking fee had not been paid. She submitted a plea of guilty in writing and a written statement in mitigation of penalty. 

1. On 07 August 2008 the complaint proceeded ex parte in the Magistrates Court at Townsville. The appellant was represented by a solicitor employed by the Townsville City Council, Ms C Stockall.  The respondent was convicted and fined the sum of $40 and ordered to pay of $81.10 costs of court. The learned magistrate refused to make an order for payment of professional costs.

The Grounds of Appeal

1. The issue in the appeal is the non-awarding of the professional costs of $75.00 sought by the appellant.

1. The Notice of Appeal sets out the grounds as follows:

1.          “The learned Magistrate misdirected herself in law in having regard to the existence and operations of the State Penalties Enforcement Registry (“SPER”) in refusing to award costs as sought.

2.          The learned Magistrate in fact and law in characterising the…