Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION: Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181

PARTIES: In CA No 200 of 2011: MERRIN, Thomas William (applicant) v COMMISSIONER OF POLICE (respondent) / In CA No 4 of 2012 and CA No 5 of 2012: MERRIN, Thomas William (applicant) MERRIN, Annette Elizabeth (applicant) v COMMISSIONER OF POLICE (respondent)

FILE NO/S: CA No 200 of 2011 / CA No 4 of 2012 / CA No 5 of 2012 / DC No 183 of 2010 / DC No 101 of 2011 / DC No 100 of 2011

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal) / Applications for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 29 June 2012

DELIVERED AT: Brisbane

HEARING DATE: 31 May 2012

JUDGES: Margaret McMurdo P and North and Henry JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: (a) Application for leave to appeal refused. / (b) The applicant pay the respondent’s costs of the application to be assessed on the standard basis. / (a) Application for an extension of time for leave to appeal refused. / (b) The applicant pay the respondent’s costs of the application to be assessed on the standard basis. / (a) Application for an extension of time for leave to appeal refused. / (b) The applicant pay the respondent’s costs of the application to be assessed on the standard basis.

CATCHWORDS: INFERIOR COURTS QUEENSLAND – DISTRICT COURT – APPEAL FROM DECISIONS – SELF LITIGANT – where the applicant is a self litigant and was convicted in the Magistrates Court of Queensland – where the applicant sought leave to appeal from the District Court judge in dismissing the appeal – where leave to appeal was necessary pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) – whether there was bias, injustice or unfairness by the District Court judge / PRACTICE AND PROCEDURE – APPEAL BY LEAVE OF COURT – EXTENSION OF TIME – COSTS ORDERS – where the applicants are self litigants in both appeals – where the District Court allowed an appeal pursuant to s 222 Justices Act 1886 (Qld) – whether costs can be ordered for travel expenses of the applicants who represented themselves at trial and related court hearings – whether leave is to be granted for an extension of time pursuant to s 118 District Court of Queensland Act 1967 (Qld) / Criminal Practice Rules 1999 (Qld), r 83, r 84(1), r 85, schedule 6 / District Court of Queensland Act 1967 (Qld), s 118(3) / Justices Act 1886 (Qld), s 158(1), s 158(1)(a), s 158A, s 158A(2), s 158A(3), s 158A(4), s 158B, s 222 / Justices Regulation 2004 (Qld), s 18, schedule 2 / Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, followed / Carnes v Essenberg & Ors [1999] QCA 339, cited / Commissioner of the Police Service v Merrin [2002] QCA 480, considered / Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited / Glennan v Commissioner of Taxation (2003) 77 ALJR 1195; [2003] HCA 31, cited / Parsons v Raby [2007] QCA 98, cited / Pickering v McArthur [2005] QCA 294, applied / Smith v Woodward [2009] QCA 119, cited / Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, considered / Worchild v Petersen [2008] QCA 26, followed

COUNSEL: CA No 200 of 2011 / The applicant appeared on his own behalf / M Cowen for the respondent / CA No 4 and 5 of 2011 / The applicants appeared on their own behalf / M D Hinson SC for the respondent

SOLICITORS: CA No 200 of 2011 / The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) on behalf of the Office of the Solicitor of the Queensland Police Service for the respondent / CA No 4 and 5 of 2011 / The applicants appeared on their own behalf / Queensland Police Service Solicitor for the respondent

1. MARGARET McMURDO P: I agree with North J’s reasons for refusing all these applications with costs.

2. In respect to applications 4 of 2012 and 5 of 2012 I make the following brief additional comment by way of emphasis. This Court’s decision in Commissioner of the Police Service v Merrin¹ should not be followed insofar as it is inconsistent with the High Court’s decision in Cachia v Hanes.² Mr Cachia, like the present applicants, Mr and Mrs Merrin, was not legally represented and received a costs order in his favour. He wanted costs to compensate for his loss of time spent in preparing and conducting his case and for out of pocket expenses, including travel expenses. The plurality (Mason CJ, Brennan, Deane, Dawson and McHugh JJ)³ rejected Mr Cachia’s claim and reaffirmed the original basis upon which costs are ordinarily awarded, namely, as an indemnity for legal costs actually incurred.⁴ Until the High Court revisits its decision in Cachia v Hanes or the Queensland parliament legislates otherwise, as the magistrate and on appeal the District Court judge recognised, the applicants’ costs were limited to the costs of filing and other court fees.

3. I agree with the orders proposed by North J in all these applications.

4. NORTH J: These three matters concerned judgments of the District Court in its appellate jurisdiction.⁵ Accordingly the dissatisfied party may appeal to this Court only with leave under s 118(3) of the District Court of Queensland Act 1967.

5. The applicant in matter 200 of 2011 is the applicant in matter 4 of 2012 and is the husband of the applicant in matter 5 of 2012. The issue in contention in matters 4and 5 of 2012 are identical whereas the matter 200 of 2011 is factually different and raises different issues. All three matters were heard and argued before this Court together and it is convenient to deal with them in the order in which they were commenced in the registry of this Court.

Matter No 200 of 2011

6. The applicant was charged with three offences (Consuming Liquor on a Road, Obstructing a Police Officer and Assaulting a Police Officer) which occurred on 11 April 2009 arising out of an incident at Einasleigh in North Queensland. He was convicted in the Magistrates Court at Atherton following a two day trial conducted on 22 and 23 June 2010. The magistrate recorded convictions, imposed one penalty for the three offences, a fine of $2,000, and allowed him six months to pay.

7. At the trial before the magistrate, the applicant represented himself. He cross-examined the witnesses called for the prosecution and called evidence in his defence.⁶ In cross-examination the applicant challenged both the accuracy of the recollection of the witnesses and their reliability as witnesses. The magistrate gave reasons which included findings concerning the reliability and accuracy of the evidence given by the witness.

8. In his appeal to the District Court the applicant raised seven grounds of appeal⁷ but encapsulated within most of these grounds were numerous complaints concerning the conduct of the trial or the many challenges concerning the accuracy or reliability of the evidence that the magistrate had accepted. One ground⁸ raised a "Constitutional matter" asserting that all the charges laid against the applicant raised no case as "subordinate Legislation was used which is no legislation at all".

9. By his Notice of Appeal to the District Court the applicant sought orders including that the appeal be allowed, that the orders made by the magistrate be quashed and that the convictions be "erased from … files". But the applicant also sought orders that the magistrate be investigated "for violation of s 45 of the Magna Carta wherein Magistrates must know the Law, for costs of or hearings in the appeal that evidence that had been forfeited be returned to him and compensation for damages be asserted".⁹

10. In Teelow v Commissioner of Police¹⁰ Muir JA, speaking of the appeal to the District Court under s 222 of the Justices Act 1886 said:¹¹

"The original ground of appeal

[2]Section 223 of the Justices Act 1886 provides:

'Appeal generally a rehearing on the evidence

(1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

(2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the Court is satisfied there are special grounds for giving leave.

(3)If the court gives leave under subsection (2), the appeal is —

(a)by way of rehearing on the original evidence; and

(b)on the new evidence adduced.'

[3]A characteristic of an appeal 'by way of rehearing' is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal 'by way of rehearing' under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:

'It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …'

[4]It is a normal attribute of an appeal by way of rehearing that 'the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.' On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal."

(Footnotes omitted.)

11. The appeal was heard before Harrison DCJ on 28 October 2010. His Honour reserved his decision and when he pronounced the order dismissing the appeal he published his reasons. At the hearing on the appeal his Honour had available to him not only a transcript of the proceedings below and the relevant evidence but also a fourteen page written Outline of Argument prepared by the appellant addressing all of the matters raised by the Notice of Appeal. In his reasons his Honour noted that the appeal to him was by way of re-hearing¹² which while obliging the appellate Court to conduct a review of the trial, bearing in mind the appellate Court has neither seen nor heard the witnesses,¹³ nevertheless obliged the appeal Court to give due deference and weight to the trial Court's views concerning the credibility or reliability of witnesses because:

"… the Magistrate has seen the witnesses. That advantage adds strength to findings of fact based on the evidence of the witnesses. On a re-hearing, a court would normally examine the evidence and the findings made on it, giving weight to findings which that evidence could support, including ones which reflected opinions on credibility and the like."¹⁴

12. In performance of that obligation his Honour thoroughly summarised the evidence given by the witnesses at the two day trial.¹⁵ His Honour then turned to consideration and analysis of the decision of the magistrate including the magistrate's findings, the conclusions upon each of the charges, the way in which the magistrate dealt with "auxiliary submissions" made by the applicant and the magistrate's decision on sentence.¹⁶ Following that his Honour considered and granted the applicant's application for an extension of time for filing the Notice of Appeal.¹⁷

13. His Honour then addressed each of the grounds of appeal raised by the applicant before him. Six of the grounds essentially raised matters of fact or issues relating to inferences from fact. Consistently with his Honour's treatment of the evidence below and of the analysis of the magistrate's reasoning, his Honour's consideration of each of these grounds was careful, accurate and thorough.¹⁸ Having reviewed the evidence given before the magistrate at trial, the magistrate's reasons for the orders made I can detect no error on the part of his Honour in his consideration of each of these six grounds.

[14] The seventh ground of appeal before his Honour raised a contention that Magna Carta applied with the result that the Liquor Act 1992 and the Police Powers and Responsibilities Act 2000 were, what he styled “subordinate legislation” and had no force or effect in law. His Honour rightly rejected that contention¹⁹ relying upon the reasons of Chesterman J in Carnes v Essenberg & Ors²⁰.

[15] It might be noted that before dismissing the appeal his Honour addressed other matters that the applicant raised in his Outline of Argument²¹ which for the most part raised irrelevant and inconsequential matters concerning either the conduct of the proceedings, peripheral issues relating to evidence and to the circumstance that the magistrate had revised his reasons. None of the matters raised by the applicant involved a matter of consequence. His Honour concluded his reasons for dismissing the appeal against the convictions holding that on his analysis of the evidence, the magistrate was entitled to make the findings that he did and that there was substantial evidence to support the conclusions. His Honour also noted that the record indicated that the applicant had at different times been quite rude to the magistrate, had appeared to be aggressive and had used totally inappropriate language.²² Finally his Honour considered the appeal against sentence and held that in the circumstances the sentences that had been imposed were not manifestly excessive and his Honour dismissed the appeal.²³

[16] In the notice of application for leave to appeal to this Court the applicant asserts three grounds:

"1.His Honour showed bias by not addressing the crucial elements of the outline of argument for the Appellant;

2.His Honour erred in Law by summarising certain aspects of the original hearing without gaining full knowledge of what was under discussion from the Appellant;

3.His Honour showed no Justice or Fairness in his reasons for judgment choosing to colour his version of what was actually said by the witnesses in order to advance the Magistrate's & Prosecution's position while dismissing the appeal."²⁴

[17] The assertions of “bias” and injustice or unfairness levelled against his Honour are unparticularised and without foundation. No fair-minded lay observer could reasonably apprehend that his Honour did not bring an impartial and unprejudiced mind to the resolution of the matters before him.²⁵

[18] In his Written Outline of Argument and in his Amended & Supplementary Written Outline of Argument in support of the application, the applicant repeated many of the arguments raised before his Honour below dealing with the findings or inferences of fact, the reception of evidence and the magistrate's rulings on evidence. None of these matters raise either an important question of law nor issue touching upon the administration of justice. The applicant also sought to agitate the proposition that Magna Carta controls legislation such as the Liquor Act 1992 and the Police Powers and Responsibilities Act 2000 which was rightly rejected by his Honour.

[19] Concerning an appeal from the District Court to this Court under s 118(3) of the District Court of Queensland Act 1967 in Pickering v McArthur²⁶ Keane JA said²⁷:

"Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected."²⁸

[20] This statement of the Court's practice is well established. It applies in circumstances where an applicant has already received two hearings, at trial and on appeal, and is designed to prevent excessive demands being made by those who insist upon a "right" to be heard and re-heard.²⁹

[21] I have commented upon the reasons given by his Honour. Plainly his Honour conducted an appeal in accordance with the Act. I can detect no error at all in the way in which his Honour went about the task nor in the conclusions he reached nor the reasons he gave for them. There was no injustice to the applicant at trial or on appeal to the District Court.

[22] The application for leave to appeal to this Court should be refused with costs.

Matter No 4 of 2012 & Matter No 5 of 2012

[23] On 26 May 2011 following a trial held in the Magistrates Court at Tully on 15 April 2011, the magistrate dismissed charges against both applicants.³⁰

[24] Upon the dismissal of the charges the applicants applied for costs. They had represented themselves at the trial and had acted for themselves throughout. The magistrate awarded them costs but limited the costs to filing and other Court fees. Regarding herself bound by a decision of this Court³¹ she limited the costs and refused to be included in the costs awarded, costs of the nature of expenses incurred by the applicants in travelling so that they might appear at the trial and at pre-trial mentions or hearings. The magistrate in her reasons indicated that were she not bound by Worchild v Petersen she would have included such expenses in the costs awarded following the reasons of McPherson JA in Commissioner of the Police Service v Merrin³².

[25] The applicants appealed to the District Court at Cairns pursuant to s 222 of the Justices Act 1886 and the appeal was heard by Everson DCJ on 23 November 2011. On 30 November 2011 his Honour gave judgment dismissing the appeals. His Honour considered the relevant legislation and the two decisions of the Court of Appeal³³. In submissions his Honour was referred to a decision of the High Court in Cachia v Hanes & Anor³⁴ which had been referred to by this Court in Worchild v**Petersen but had not been expressly referred to in reasons for judgment given by this Court in Commissioner of the Police Service v Merrin. In the circumstance that one decision of this Court appeared to accord more closely with the authority of a decision in the High Court, his Honour followed Worchild v Petersen and dismissed the appeal.³⁵

[26] The power of the magistrate to award costs in favour of the applicants following the dismissal of the complaints is found in s 158(1) of the Justices Act 1886³⁶. That section gives a discretion to order a complainant to pay a defendant "such costs as … seem just and reasonable". The term "costs" is not defined but s 158B(1)(a) provides that costs may only be awarded for an item under a scale of costs prescribed under a regulation. That scale is found in Schedule 2 of the Justices Regulation 2004.³⁷ Part 2 of Schedule 2 relates to costs allowable for legal professional work. That is irrelevant in the present circumstances because the applicants were not legally represented. Part 3 of the Schedule is headed "Disbursements (including disbursements to witnesses and interpreters)". Of that part only Item 5 of Schedule 2 is presently relevant³⁸ which provides:

"5.Disbursements, other than to witness for attending

Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.”

[27] In Commissioner of the Police Service v Merrin³⁹ the judgment of the Court was delivered by McPherson JA.⁴⁰ Referring to an almost identically worded schedule in an earlier regulation, now repealed,⁴¹ his Honour said⁴²:

“[4]… On one reading of this provision, it might be thought to be confined to the persons specifically mentioned in it; but it is not expressly so restricted and, I consider, must be given a wider operation.

[5]Under that provision an allowance could have been awarded to Mr Merrin as a party for his travel at a rate which better reflected both the actual costs of travel in fuel and otherwise, as well as the expense of wear and tear on his vehicle.”

[28] The judgment shows that the Court was concerning a circumstance where Mr Merrin had attended as a witness for his son but also had attended and had had to travel to Cairns in order to defend himself against charges. McPherson JA went on to consider the question of costs of travel in some detail and in allowing the appeal included for an allowance at a certain rate per kilometre as part of the costs.

[29] In Worchild v Petersen⁴³ the Court of Appeal⁴⁴ considered an appeal from an order of a District Court judge at Southport who had allowed an appeal by the applicant against a conviction under the Liquor Act 1992. The District Court judge awarded costs but limited costs to out-of-pocket costs comprising filing fees and other Court costs paid by him.⁴⁵ In that appeal the applicant submitted that as he was a legal practitioner, albeit representing himself, the District Court judge had erred in the exercise of his discretion by not awarding costs to reflect the loss of his professional time relying upon a decision of the High Court in Guss v Veenhuizen (No 2)⁴⁶.However, as the reasons of the Court of Appeal show the applicant was, because of restrictions on his practising certificate, prohibited from practising as a solicitor on his own account either alone or in partnership. Accordingly, the Court of Appeal distinguished the circumstances that applied in Guss v Veenhuizen where the practitioner had been omitted, through no fault of his, from the Roll of High Court Practitioners⁴⁷. The Court in Worchild v Petersen went on, following some observations made in the High Court subsequently in Cachia v Hanes⁴⁸ to dismiss the appeal observing⁴⁹:

“The principle referred to as never being doubted is that a person who is not within that limited exception defined in Guss cannot recover costs in respect of time lost by him in preparing and conducting his case.”

[30] In his written outline of argument on behalf of the respondent senior counsel who appeared for the respondent noted that “there is a degree of tension between this Court’s decision in Worchild v Petersen and this Court’s earlier decision in Commissioner of Police Service v Merrin”. That “tension” was evident when the magistrate considered the question of costs at first instance.⁵⁰ The judgment of the High Court in Cachia v Hanes⁵¹ was considered and referred to by the Court of Appeal in Worchild v Petersen and was referred to specifically by the District Court judge at first instance in that matter when he made orders limiting that successful party’s costs to filing fees and other Court costs paid by him⁵² but the judgment of the Court of Appeal in Worchild v Petersen does not refer to the earlier decision of this Court in Commissioner of the Police Service v Merrin.⁵³ In the same vein the judgment of McPherson JA in Commissioner of the Police Service v Merrin does not refer to the High Court’s judgment in Cachia v Hanes.⁵⁴

[31] The consideration of whether the Act and the regulation permit the inclusion of an allowance for costs for travelling expenses and perhaps other costs and expenses incurred by Mr and Mrs Merrin in attending upon the Court and in the preparation of the defence of the charges brought against them involves at the outset a consideration of the Act and the regulation. Section 158(1) of the Justices Act 1886 permits a Court to order upon the dismissal of a complaint that the complainant pay to the defendant costs as “seem just and reasonable”. Section 158A(1) goes on to provide that the magistrate may “only” make such an order if the magistrate is satisfied that “it is proper that the order for costs should be made” and s 158A(2) sets out circumstances that must be taken into account in considering whether to make such an order. If an order is made then under s 158A(3) the clerk of the Court is to give the defendant a certificate signed by the clerk showing the amount of costs awarded and (subject to any appeal) the defendant is entitled to be paid by the State the amount shown on the certificate within two months after payment is claimed (see s 158A(4)). Section 158B is important, it provides that costs that are just and reasonable may be awarded “only” under a scale of costs prescribed under a regulation.⁵⁵

[32] Concerning item 5 in Schedule 2⁵⁶ senior counsel for the respondent submitted that the costs which may be recovered are described as “disbursements” and “Court fees and other fees and payments”. He submitted that the words “including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as an advocate” were words of inclusion not extending to and including payments of travelling, accommodation or other expenses that might be incurred by self representing litigants. Conceding that the Court of Appeal in Commissioner of the Police Service v Merrin had held that a travelling allowance could be considered a disbursement under the general introductory words of item 5 he submitted that the construction was not consistent with the decision and reasoning of the High Court in Cachia v Hanes. In the context of the statutory provision he submitted that the word “disbursements” should be given its ordinary meaning of a payment made on behalf of a client by a lawyer to a third party⁵⁷ and that travelling expenses of a party (as opposed to a witness) are not ordinarily recoverable. He pointed to the circumstance that the schedule made specific allowance for disbursements as allowance for witnesses be they defendants or prosecution witnesses.⁵⁸

[33] In Cachia v Hanes the High Court was concerned with the taxation of an order of costs conducted under the then rules of the Supreme Court of New South Wales. The issue before the Court was whether allowance should be made for “the appellant’s claim for compensation for the loss of his time spent in the preparation and conduct of his case and for out of pocket expenses, being travelling expenses, associated with the preparation and conduct of his case”.⁵⁹ After referring to the relevant rules a majority of the Court⁶⁰ said⁶¹:

“To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner’s employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.

This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant as Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, ‘but not to the costs and expenses of his travell and losse of time’.”

[34] That McPherson JA⁶² was unaware of the decision of the High Court in Cachia v Hanes might be doubted and it is even more unlikely that his Honour was unaware of the concept of “disbursements” and the history of cases referred to by the High Court. But the matter for consideration is whether his Honour’s reasoning accords with that of the High Court.

[35] Item 5 of Schedule 2 refers to “Court fees and other fees and payments” and it may be granted that the words are general if considered out of context. However the context includes the term “disbursements”, the other provisions of the Schedule and the relevant sections of the Act and Regulation. Nowhere in the Act or Regulation is there an indication that the words should be given “a wider operation” than that suggested by the words, including those with a settled meaning, in the context of the legislation.

[36] The conclusion by his Honour that the words should be given “a wider operation” suggests a view that the provision was intended to be remedial and to have an operation in the interest of justice wider than that suggested in context. That view is not supported upon a consideration of the reasoning of the High Court. In the reasons of the majority, following the passage quoted above⁶³, went on to address the “somewhat anomalous exception” of the self-representing solicitor litigant⁶⁴ and then commented:⁶⁵

“If the explanations for allowing the costs of a solicitor acting for himself are unconvincing, the logical answer may be to abandon the exception in favour of the general principle rather than the other way round. However, it is not necessary to go so far for the purposes of the present case. It suffices to say that the existence of a limited and questionable exception provides no proper basis for overturning a general principle which has, as we have said, never been doubted and which has been affirmed in recent times.”

(Footnotes omitted.)

[37] After noting that costs are ordinarily awarded as an indemnity for legal costs actually incurred⁶⁶ their Honours said⁶⁷:

“If costs were to be awarded otherwise than by way of indemnity, there would be no logical reason for denying compensation to a litigant who was represented. That would in some cases dramatically increase the costs awarded to a successful litigant. In corporate litigation of complexity, for example, a litigant may expend considerable time and effort in preparing its case.

Whilst the restricted basis upon which party and party costs are awarded may be debated as a matter of policy, it is to be borne in mind that party and party costs have never been regarded as a total indemnity to a successful litigant for costs incurred, let alone total recompense for work done and time lost. Putting to one side the question posed by the relatively rare exception of a solicitor acting in person, there is no inequality involved: all litigants are treated in the same manner. And if only litigants in person were recompensed for lost time and trouble, there would be real inequality between litigants in person and litigants who were represented, many of whom would have suffered considerable loss of time and trouble in addition to incurring professional costs. The partial indemnity which the law allows represents a compromise between the absence of any provision for costs (which prevails as a matter of policy in some jurisdictions) and full recompense. In these days of burgeoning costs, the risk of which is a real disincentive to litigation, the proper compromise is a matter of both difficulty and concern.”

(Footnotes omitted.)

[38] While I do not understand the applicants to submit that an allowance for expenses such as travelling costs might be made under the Schedule merely because they were unrepresented, there are sound reasons for not distinguishing between litigants⁶⁸:

“Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognize that the presence of litigants in person in increasing numbers is creating a problem for the courts. It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable. On the other hand, there is no doubt that the inability of a litigant in person to obtain recompense for time spent in the conduct of successful litigation must on occasions be a significant deterrent to the exercise of his right to come to court in person.

We mention these matters not to express any view, but merely to indicate that there are considerations which must be weighed before any reasoned conclusion can be reached. A court engaged in litigation between parties, even if it were not constrained by the legislation and rules, is plainly an inappropriate body to carry out that exercise or to act upon any conclusion by laying down the precise nature of any change required.”

(Footnotes omitted and emphasis added).

The reasons of the High Court were published on 1 April 1994⁶⁹ and experience since then has not falsified the statements emphasised.

[39] The absence of consideration of the High Court’s decision in Cachia v Hanes suggests that insufficient consideration may have been given to the settled meaning of terms such as “costs”⁷⁰ and “disbursements” and of the considerations adverted to by the High Court in this Court’s decision in Commissioner of the Police Service v Merrin. The words used in the Schedule, adopting words or phrases with a long established or settled meaning, do not suggest novelty. Cachia v Hanes has been followed elsewhere.⁷¹ In the absence of any compelling indication in the Act and Regulation that the Parliament intended a departure from long established law reconfirmed in the High Court this Court should follow Cachia v Hanes. In the circumstances the decision of this Court in Worchild v Petersen should be preferred with the consequence that the decision by the magistrate at first instance and by the District Court on appeal should be affirmed.

[40] The applicants refer to the Constitution in their outline. The applications do not involve a matter arising into the Constitution.⁷²

[41] The applicants did not file an application for leave to appeal within the prescribed period.⁷³ The failure to apply in time was occasioned, it would seem, because of the circumstance of the Christmas/New Year holiday period intervening. Notwithstanding that, on the view I take, the decision below is correct the issue raised for consideration was a matter of some public importance in the circumstance of the diverging views in this Court. Consequently had the application for leave to appeal been filed within time orders might have been made granting leave to appeal although dismissing the appeal. In the circumstance however the orders I would make would be that both applications for an extension of time be refused with costs.

Orders

[42] The orders I would make are:

1.In matter 200 of 2011

(a)Application for leave to appeal refused.

(b)The applicant pay the respondent’s costs of the application to be assessed on the standard basis.

2.In matter 4 of 2012

(a)Application for an extension of time for leave to appeal refused.

(b)The applicant pay the respondent’s costs of the application to be assessed on the standard basis.

3.In matter 5 of 2012

(a)Application for an extension of time for leave to appeal refused.

(b)The applicant pay the respondent’s costs of the application to be assessed on the standard basis.

[43] HENRY J: I agree with the reasons of North J and with the orders proposed by his Honour.

Footnotes

¹ [2002] QCA 480.

² (1994) 179 CLR 403.

³ Toohey and Gaudron JJ dissenting.

⁴ Above, 413–414.

⁵ Section 222 of the Justices Act 1886.

⁶ That witness was his wife.

⁷ AR 347.

⁸ Ground 7, see AR 350.

⁹ AR 350.

¹⁰ [2009] QCA 84.

¹¹ Teelow v Commissioner of Police [2009] QCA 84 at [2] - [4].

¹² Reasons for Judgment at [8], AR 424.

¹³ Fox v Percy (2003) 214 CLR 118 at [25].

¹⁴ See Parsons v Raby [2007] QCA 98 at [24] per Jerrard JA.

¹⁵ Reasons for Judgment at [10]-[27], AR 425-439.

¹⁶ Reasons for Judgment at [28]-[66], AR 439-444.

¹⁷ Reasons for Judgment at [67] & [68], AR 444.

¹⁸ See the consideration of grounds 1-6 at Reasons for Judgment [69]-[109], AR 445-449.

¹⁹ Reasons for Judgment [110]-[113], AR 449-451.

²⁰ [1999] QCA 339 (at page 4-7).

²¹ Reasons for Judgment [115] - [129], AR 451-3.

²² Reasons for Judgment [130] - [136], AR 453-4.

²³ Reasons for Judgment [130] - [141], AR 453-454.

²⁴ AR 456-7.

²⁵ Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

²⁶ [2005] QCA 294.

²⁷ Pickering v McArthur [2005] QCA 294 at [3].

²⁸ See also Teelow v Commissioner of Police [2009] QCA 84 at [17] per Muir JA.

²⁹ See Smith v Woodward [2009] QCA 119 at [16] - [20].

³⁰ Mr Merrin faced a charge of Obstructing a Police Officer and Mrs Merrin was charged with an offence of Committing a Public Nuisance and another of Obstructing a Police Officer.

³¹ Worchild v Petersen [2008] QCA 26. See AR 214.

³² [2002] QCA 480 at [2] - [5]. See further AR 214-5.

³³ Worchild v Petersen [2008] QCA 26 and Commissioner of the Police Service v Merrin [2002] QCA 480.

³⁴ (1994) 179 CLR 403.

³⁵ See Reasons for Judgment at [7] - [8] at AR 675 -6.

³⁶ Not overlooking s 158A which gives guidance as to the exercise of the discretion afforded by s 158(1).

³⁷ See s 18 of the Justices Regulation 2004, noting that s 158 of the Act is contained within Part 6 Division 8 of the Act, see Part 1 item 1 of Schedule 2.

³⁸ Item 6 of the Schedule is not relevant. It specifically makes provision for the allowance for witnesses for a defendant to attend a hearing. In the matter before the magistrate neither Mr or Mrs Merrin attended as witnesses. They were defendants charged with offences. They attended in that capacity and represented themselves before the magistrate. They did not give evidence.

³⁹ [2002] QCA 480.

⁴⁰ Cullinane and Holmes JJ concurred.

⁴¹ Justices Regulation 1993.

⁴² Commissioner of the Police Service v Merrin [2002] QCA 480 at [4], [5].

⁴³ [2008] QCA 26.

⁴⁴ McMurdo P, Holmes JA and Mackenzie AJA.

⁴⁵ Worchild v Petersen [2008] QCA 26 at [4].

⁴⁶ (1976) 136 CLR 47.

⁴⁷ See Worchild v Petersen [2008] QCA 26 at [6].

⁴⁸ (1994) 179 CLR 403.

⁴⁹ Worchild v Petersen [2008] QCA 26 at [9].

⁵⁰ See AR 213-214.

⁵¹ (1994) 179 CLR 403.

⁵² See Worchild v Petersen (No 2) [2007] QDC 159.

⁵³ The judgment was delivered by Mackenzie AJA (McMurdo P & Holmes JA agreeing). It is not apparent whether that Court was referred to the earlier decision in argument.

⁵⁴ In argument before us Mr Merrin contended that the judgment of the High Court had been referred to in argument before the Court of Appeal. Be that as it may it is not profitable to speculate any further upon this matter.

⁵⁵ Section 158B also provides for an allowance for specific items that might be provided by a scale and also for a higher amount that may be just and reasonable “having regard to the special difficulty, complexity or importance of the case”. This refers to items such as those set out in Part 2 of Schedule 2 to the Justices Regulation 2004 which makes provision for “legal professional work”.

⁵⁶ See par [23] above.

⁵⁷ See Legal Services Commission**er v Dempsey [2007] QSC 270 at [33] and [35].

⁵⁸ See specifically item 6 and item 7 to Part 3 of Schedule 2.

⁵⁹ Cachia v Hanes (1994) 179 CLR 403 at 408.

⁶⁰ Mason CJ, Brennan, Deane, Dawson & McHugh JJ.

⁶¹ Cachia v Hanes (1994) 179 CLR 403 at 410-11.

⁶² And the other members of the Court in Commissioner of the Police Service v Merrin.

⁶³ See para [30] above.

⁶⁴ See Cachia v Hanes (1994) 179 CLR 403 at 411-412.

⁶⁵ See Cachia v Hanes (1994) 179 CLR 403 at 412-413.

⁶⁶ See Cachia v Hanes (1994) 179 CLR 403 at 414.

⁶⁷ See Cachia v Hanes (1994) 179 CLR 403 at 414-415.

⁶⁸ See Cachia v Hanes (1994) 179 CLR 403 at 415-416.

⁶⁹ See 179 CLR 403 and 407.

⁷⁰ Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 219, [89]-[91].

⁷¹ See CGU Workers’ Compensation (Vic) Ltd v Rees (2003) 6 VR 227 at 231-232, [12]-[14]; Von Reisner v Commonwealth of Australia (No 2) (2009) 262 ALR 430 at [10] ff; Australian Super Pty Ltd v Woodward (2009) 262 ALR 402 at [60]. See also, Winter v Fleeton [2002] WASCA 73 at [12]-[22]; Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838; Arnoldus-Lewis v Murphy t/as North Coast Investigations [2008] NSWSC 1103 at [23]-[24].

⁷² See Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at 1197-1198, [14].

⁷³ Rules 83, 84(1) and 85 of the Criminal Practice Rules 1999 and the definition of “appeal period” in Schedule 6 of those Rules.

Footnotes

1. [2002] QCA 480. ↩ ↩²

2. (1994) 179 CLR 403. ↩ ↩²

3. Toohey and Gaudron JJ dissenting. ↩ ↩²

4. Above, 413–414. ↩ ↩²

5. Section 222 of the Justices Act 1886. ↩ ↩²

6. That witness was his wife. ↩ ↩²

7. AR 347. ↩ ↩²

8. Ground 7, see AR 350. ↩ ↩²

9. AR 350. ↩