Stewart v Nitkiewicz (RSPCA Inspector) (No. 2)

[2022] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Stewart v Nitkiewicz (RSPCA Inspector) (No. 2) [2022] QDC 268

PARTIES:

KYLIE MAREE STEWART

(appellant)

v

SHAREE NITKIEWICZ (RSPCA INSPECTOR)

(respondent)

FILE NO:

234/21

DIVISION:

Appeal

PROCEEDING:

Costs of appeal pursuant to s 226 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

30 November 2022

DELIVERED AT:

Townsville

HEARING DATE:

Submissions filed by the Appellant and Respondent on 25 November 2022

JUDGE:

Dearden DCJ

ORDERS:

1.   No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where both parties partially successful in appeal

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) s 17

Justices Act 1886 (Qld) s 226, 232A

Justices Regulation 2014 (Qld) sch 2, part 2

CASES:

Latoudis v Casey (1990) 170 CLR 534

Scanlon v Queensland Police Service [2011] QDC 236

Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256

COUNSEL:

E J Lewsey for the appellant

L Marshall for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant

RSPCA for the respondent

Introduction

1. The appellant, Kylie Maree Stewart, was partially successful in the appeal filed 7 September 2021, in respect of two offences of breach of care of animals contrary to sections 17(3)(a)(i) and 17(3)(a)(iv) (respectfully) of the Animal Care and Protection Act 2001 (Qld).[1]

   [1]Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256.

2. The parties subsequently provided written submissions to the court on the issue of costs.

   The Law

3. The District Court, on appeal “may make such order as to costs to be paid by either party as the judge may think just.”[2]

   [2]Justices Act 1886 (Qld) s 226 (‘Justices Act’).

4. Costs on appeal are limited, pursuant to Justices Act section 232A(1), up to the amount prescribed by Schedule 2 – Scale of Costs,[3] although a higher amount may be allowed for costs if the judge on appeal is satisfied “that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.”[4]

   [3]Justices Regulation 2014 (Qld) sch 2, part 2.

   [4]Justices Act s 232A(2).

5. The discretion to award costs must be exercised judicially,[5] and are not punishment of the unsuccessful party, but rather, seek to indemnify the successful party against the costs of the appeal.[6]

   [5]Latoudis v Casey (1990) 170 CLR 534.

   [6]Scanlon v Queensland Police Service [2011] QDC 236 [4].

   Discussion

6. The appeal proceeded on the ground that “the penalty imposed was manifestly excessive”.[7] As the appeal was litigated, it was confined to the issue as to whether the making of the prohibition and disposal orders rendered the sentence excessive,[8] and as a result of my concerns raised with the parties in respect of the jurisdiction, that issue required resolution, which necessitated further written and oral submissions. Ultimately, I was persuaded that the court had jurisdiction,[9] and the appellant was partially successful on appeal, resulting in the prohibition order being reduced from 5 years to 3 years.[10]

   [7]Notice of Appeal filed 7 September 2021.

   [8]Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256 [5].

   [9]Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256 [6] – [16].

   [10]Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256 [42] – [47].

7. The appellant’s submission, put simply, is that each party achieved some success on appeal – the components of the overall sentence subject of contest on the appeal were the disposal and prohibition orders, and the appellant was successful in persuading the court to reduce the term of the prohibition order.

8. In those circumstances, the appellant submits, that each party should bear its own costs.

9. The respondent, on the other hand, submits that partial success of the appellant, as described above, should result in a reduction of the quantum of costs awarded to an otherwise successful respondent.

10. With respect, although the aspect of the appeal that was successful was modest, in the overall scheme of the original sentencing construct, it still represented a substantive aspect of “success” that was only achieved by conducting the appeal.

11. In those circumstances, I consider the only appropriate and just outcome, where each of the parties have secured “success”, in part, is to make an order that there be no order as to costs, or in other words, require each party to bear their own costs of the appeal. It follows that no order is made as to the costs in the Magistrates Court.

    Order

    (1)No order as to costs.