Smith v Ash

Case [2010] QCA 112


SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Ash [2010] QCA 112

PARTIES:

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 Act 1886 (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 Act 1999 (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

Acts Interpretation Act 1954 (Qld), s 14A
Criminal Code 1899 (Qld), s 651, s 651(4), s 652
District Court of Queensland Act
1967 (Qld), s 118(3)
Justices Act
1886 (Qld), s 19, s 72, s 147A, s 157, s 158, s 158A, s 158A(5), s 222(1), s 222(2)(a), s 222(2)(b), s 222(2)(c)
State Penalties Enforcement Act 1999 (Qld), s 4(a), s 4(b), s 4(c), s 16, s 22, sch 2(a)(ii)
Supreme Court Act 1995 (Qld), s 253
Transport Operations (Road Use Management) Act 1995 (Qld), s 106(1)(a)(i)

ACI Operations P/L v Bawden [2002] QCA 286, cited
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
(2009) 239 CLR 27; [2009] HCA 41, cited
Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship SchemeLtd [2008] QCA 100, cited
Cameron v Nominal Defendant [2000] QCA…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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