Whitby v Stockair Pty Ltd and Jackson (No 2) - [2015] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Whitby v Stockair Pty Ltd & Jackson (No 2) [2015] QDC 110

PARTIES:

ALLAN MATTHEW WHITBY
(appellant)

v

STOCKAIR PTY LTD
(respondent)

and

SIMON GRAYDON JACKSON
(respondent)

FILE NO/S:

BD3058/14

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

19.05.15

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Farr SC DCJ

ORDER:

No orders as to costs.

CATCHWORDS:

COSTS – where indictable offence dealt with summarily

Justices Act 1886 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Bell v Carter; ex parte Bell [1992] QCA 245
Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297
Jones v. Wrotham Park Estates [1980] AC 74
Kammins Co. v. Zenith Investments (1971) AC 850
Mills v Meeking (1990) 169 CLR 214
Smith v Ash [2010] QCA 112; [2011] Qd R 175
Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231

COUNSEL:

Ms L Hamilton for the appellant

Mr D B O’Sullivan QC with Mr J M Noud for the respondents

SOLICITORS:

Commonwealth Director of Public Prosecutions for the appellant

McCullough Robertson for the respondents

The court dismissed the appellant’s appeal on 16 April 2015.[1] The respondents now seek an order that the appellant pay them a sum of $40,000 being two-thirds of the costs incurred of and incidental to the appeal.
[1]Whitby v Stockair Pty Ltd & Jackson[2015] QDC 079

There is some doubt however whether the court has jurisdiction to make any such award of costs.

The appeal is governed by Part 9 of the Justices Act 1886 (Qld) (“Justices Act”). The first substantive provision of Part 9 is s 222. Section 222 (1) provides as follows:

“(1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

The appeal in this matter was brought pursuant to s 222 and was conducted in accordance with s 223 of the Justices Act, as an appeal by way of rehearing.

Within Part 9, s 226 of the Justices Act provides for the power of a District Court judge to order costs upon the hearing of a s 222 appeal. It provides as follows:

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

Section 226 is to be read with s 232 of the Justices Act, which says as follows:

“232 Costs of appeal
(1) If upon any appeal the judge orders either party to pay costs such order shall direct such costs to be paid to the registrar to be paid over to the party entitled to the same and shall state within what time such costs are…

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.

Continue reading Whitby v Stockair Pty Ltd and Jackson (No 2)

Details

AGLC: Whitby v Stockair Pty Ltd and Jackson (No 2) [2015] QDC 110
Case: [2015] QDC 110
Decision Date: 19 MAY 2015

CaseChat Overview and Summary

Whitby brought proceedings against Stockair and Jackson for damages relating to an indictable offence which was ultimately dealt with summarily. The defendants applied for orders that Whitby bear the costs of the proceedings. Whitby opposed the application and cross-applied for costs. The primary judge declined to make any order as to costs. Whitby appealed, contending that the primary judge should have exercised his discretion in favour of an order that the defendants bear the costs of the proceedings. Stockair and Jackson cross-appealed, contending that the primary judge should have exercised his discretion in favour of an order that Whitby bear the costs of the proceedings.

The central legal issue was whether the primary judge exercised his discretion in accordance with the law. The appeal hinged on whether the primary judge was correct to conclude that he was not obliged to make an order for costs in favour of either party. Whitby submitted that the primary judge should have exercised his discretion in favour of an order that the defendants bear the costs of the proceedings. Stockair and Jackson submitted that the primary judge should have exercised his discretion in favour of an order that Whitby bear the costs of the proceedings. The court found that there was no error in the primary judge’s exercise of discretion. The court found that the primary judge was correct to conclude that he was not obliged to make an order for costs in favour of either party.

The court held that the primary judge was correct to conclude that he was not obliged to make an order for costs in favour of either party. The court held that there was no error in the primary judge’s exercise of discretion. The court held that the primary judge was entitled to conclude that there were factors in favour of both parties that justified an order for costs being made in their favour. The court held that the primary judge’s conclusion that he was not obliged to make an order for costs in favour of either party was open to him and should be upheld. The appeal and cross-appeal were dismissed.

Orders

Orders of the court

No orders as to costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Whitby v Stockair Pty Ltd & Jackson (No 2) [2015] QDC 110
PARTIES:	ALLAN MATTHEW WHITBY (appellant) v STOCKAIR PTY LTD (respondent) and SIMON GRAYDON JACKSON (respondent)
FILE NO/S:	BD3058/14
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	19.05.15
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Farr SC DCJ
ORDER:	No orders as to costs.
CATCHWORDS:	COSTS – where indictable offence dealt with summarily Justices Act 1886 (Qld) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Bell v Carter; ex parte Bell [1992] QCA 245 Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 Jones v. Wrotham Park Estates [1980] AC 74 Kammins Co. v. Zenith Investments (1971) AC 850 Mills v Meeking (1990) 169 CLR 214 Smith v Ash [2010] QCA 112; [2011] Qd R 175 Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231
COUNSEL:	Ms L Hamilton for the appellant Mr D B O’Sullivan QC with Mr J M Noud for the respondents
SOLICITORS:	Commonwealth Director of Public Prosecutions for the appellant McCullough Robertson for the respondents