SMITH, Mykel Anthony (appellant/respondent) v ASH, Rachael (respondent/applicant)
FILE NO/S:
CA No 213 of 2009 DC No 228 of 2008
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
18 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
8 February 2010
JUDGES:
McMurdo P and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, McMurdo P and Fraser JA concurring as to the orders made, Chesterman JA dissenting
ORDERS:
1. Application for leave to appeal is granted.
2. The appeal is allowed with costs.
3. The orders of the District Court are set aside.
4. The appeal to the District Court is dismissed with costs.
CATCHWORDS:
PROCEDURE – COSTS – APPEALS AS TO COSTS – JURISDICTION TO ENTERTAIN – where applicant pleaded guilty to a Complaint and Summons in the Magistrates Court and was fined $40 – where respondent sought orders for costs in addition to the fine being $81.10 for costs of court and $75 for professional fees – where Magistrate declined to award the $75 for professional fees – where respondent successfully appealed to the District Court – where s 222(2)(c) Justices Act1886 (Qld) restricts appeals to the District Court where a defendant has pleaded guilty – whether the District Court had jurisdiction to hear the appeal
PROCEDURE – COSTS – APPEALS AS TO COSTS –WRONG EXERCISE OF DISCRETION – where applicant pleaded guilty to a Complaint and Summons in the Magistrates Court and was fined $40 – where respondent sought orders for costs in addition to the fine being $81.10 for costs of court and $75 for professional fees – where Magistrate considered it would be have been more appropriate for respondent to have dealt with the matter under the State Penalties Enforcement Act1999 (Qld) – where Magistrate refused to award respondent Council costs being $75 professional fees – where respondent successfully appealed to District Court – whether the District Court judge erred in holding that the Magistrate wrongly exercised her discretion in refusing to award costs
[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
AGLC
Smith v Ash [2010] QCA 112
Case
[2010] QCA 112
Decision Date
CaseChat Overview and Summary
The case of Smith v Ash involved a dispute regarding the jurisdiction and exercise of discretion in awarding costs in a criminal proceeding. Smith pleaded guilty to a complaint and summons in the Magistrates Court, and was fined $40. The respondent, Ash, sought additional costs beyond the fine, including $81.10 for court costs and $75 for professional fees. The Magistrate declined to award the $75 for professional fees, finding it more appropriate for Ash to have dealt with the matter under the State Penalties Enforcement Act 1999 (Qld). Ash successfully appealed the decision to the District Court, which found that the Magistrate had wrongly exercised her discretion in refusing to award the professional fees.
The legal issues in this case centred around whether the District Court had the jurisdiction to hear Ash's appeal and whether the District Court judge correctly determined that the Magistrate had exercised her discretion incorrectly. Section 222(2)(c) of the Justices Act 1886 (Qld) restricts appeals to the District Court where a defendant has pleaded guilty, raising a jurisdictional question. Additionally, the District Court needed to assess whether the Magistrate's decision to deny the $75 for professional fees was an error in exercising her discretion.
The court held that the District Court did not have jurisdiction to entertain the appeal under s 222(2)(c) Justices Act 1886 (Qld), as Smith had pleaded guilty. Consequently, the District Court's decision was a wrong exercise of its jurisdiction. The appeal to the District Court was dismissed with costs, and the orders of the District Court were set aside. The court granted Smith leave to appeal and allowed the appeal with costs.
Orders
Orders of the court
1. Application for leave to appeal is granted.
2. The appeal is allowed with costs.
3. The orders of the District Court are set aside.
4. The appeal to the District Court is dismissed with costs.