Court of Appeal (Qld)|2010-05-18|Before: 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
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
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
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – COSTS – APPEALS AS TO COSTS – JURISDICTION TOENTERTAIN – where applicant pleaded guilty to aComplaint and Summons inthe Magistrates Court and was fined $40 – where respondent sought ordersfor costs in addition tothe fine being $81.10 for costs of court and $75 forprofessional fees – where Magistrate declined to award the $75 forprofessionalfees – where respondent successfully appealed to the DistrictCourt – where s 222(2)(c) Justices Act 1886 (Qld) restrictsappeals to the District Court where a defendant has pleaded guilty –whether the District Court had jurisdiction tohear the appealPROCEDURE – COSTS – APPEALS AS TO COSTS –WRONG EXERCISEOF DISCRETION – where applicant pleaded guilty toa Complaint and Summonsin the Magistrates Court and was fined $40 – where respondent soughtorders for costs in addition tothe fine being $81.10 for costs of court and $75for 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 Scheme Ltd [2008] QCA
100, cited
Cameron v Nominal Defendant [2000] QCA
137
[2001] 1 Qd R 476, cited
Colburt v Beard [1992] 2 Qd R 67,
cited
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd
(1995) 184 CLR 453
[1995] HCA 44, cited
Cooper Brookes (Wollongong)
Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
[1981] HCA
26, cited
Coulter v Ryan [2007] 2 Qd R 302
[2006] QCA
567, cited
Dart & Anor v Singer [2010] QCA
75, cited
Jones v Wrotham Park Settled Estates [1980] AC 74,
cited
Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121
[1932] HCA 10, cited
Mills v Meeking (1990) 169 CLR 214
[1990] HCA 6,
cited
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR
435
[1999] HCA 19, cited
Pickering v McArthur [2005] QCA
294, cited
R v Hayden (1975) 60 Cr App R 304
[1975] 1 WLR 852,
cited
R v Young (1999) 46 NSWLR 681
[1999] NSWCCA 166,
cited
Ross v The Queen (1979) 141 CLR 432
[1979] HCA 29,
cited
Schneider v Curtis [1967] Qd R 300, cited
Shergold v
Tanner (2002) 209 CLR 126
[2002] HCA 19, cited
Judgment (62 paragraphs)
[1]
The applicant wants to add as a further exception to the last category, "where the defendant has not pleaded guilty."
[2]
[89] There is no rational basis for this further exception to a right of appeal against costs orders. There is no discernable reason why a plea of guilty should deprive both defendant and complainant of the right to question an order for costs. The prohibition is incongruous and would distort the uniformity of rights to appeal costs orders which I have described.
[3]
[90] I note the force of the observation made by Fraser JA that Parliament may have considered that the scope for injustice, in the making of the costs order in cases where a defendant pleads guilty to a simple offence, was too small to justify a right of appeal. For my part I think that unlikely. I consider that the abrogation of a right to appeal against costs effected by the literal terms of s 222(2)(c) was unintended. I think it unlikely that Parliament intended to preclude a party who had suffered particular injustice by virtue of a costs order from complaining to a District Court Judge. It is, I think, likely that the draftsman of the subsection was concerned to prevent appeals against conviction by those who had pleaded guilty and used emphatic language to achieve that result without realising that the consequence was to take away a right of appeal that in some few cases may be necessary to avoid injustice.
[4]
[91] I therefore conclude that s 222(2)(c) should be construed as applying only to appeals against orders for conviction, or convictions.
[5]
[92] The appeal to the District Court was therefore competent. There is no utility in granting leave to appeal to consider a point which is without substance. The remaining grounds of appeal which leave is sought to argue are all complaints that Judge Durward should not have interfered with the discretionary order for costs made by the Magistrate and that no error, of the kind described in House v The King (1936) 55 CLR 499, existed.
[6]
[93] The Magistrate gave no reasons for her refusal to award professional costs but there are indications in the exchanges with Ms Stockall of what the reasons might have been. They were:
[7]
the Council was engaged in "revenue raising";
the court was being asked to engage in "rubber stamping";
the Council could have proceeded by way of infringement notice and referral to the Registry for collection of the fine;
other local authorities adopted that course and did not proceed by way of complaint and summons.
[8]
[94] The Magistrate did not address the points made by the Council in support of an order for professional costs. They were:
[9]
the Council had incurred professional costs in preparing the complaints, preparing the prosecution for costs and appearing at court;
the Council had a statutorily recognised right to proceed by way of complaint and summons;
such proceedings brought a speedier payment of fines than the procedures of the Enforcement Act;
the imposition of fines by the court and their connection pursuant to court order operated as a deterrent against motorists who occupied designated parking spaces for long periods at a time without paying the prescribed fees which the Enforcement Act remedies did not provide.
[10]
[95] The High Court (Mason CJ, Dawson, Toohey and McHugh JJ) in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 pointed out that:
[11]
"It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences ... ."
[12]
The jurisdiction which her Honour was asked to exercise was, no doubt, a humble one. It involved the ex parte determination of parking infringements by a number of people on a "bulk" basis. It was, nevertheless, the court's quasi-criminal jurisdiction which had been regularly invoked by the Council and should have been exercised, without complaint, by the Magistrate.
[13]
[96] Her Honour's remarks appear to convey an opinion that the court should not have been bothered with the respondent's complaints. That seems to be the purport of the remarks about "rubber stamping" and the praise given to other Councils for utilising the Registry rather than the court. The High Court's admonition that courts should exercise their jurisdiction was, accordingly, disregarded.
[14]
[97] Williams (at 522) is authority for the proposition that it is no abuse of process if a litigant with a genuine cause of action prosecutes it. The respondent had a complaint and an expressly recognised statutory right to prosecute it in the Magistrates Court. He should not have been criticised for doing so.
[15]
[98] The fact that the respondent might have proceeded by way of the Enforcement Act is irrelevant. It had a right to proceed either by way of that Act or the Justices Act. It was not for the Magistrate to attempt to influence its election. Her Honour's preference for the Enforcement Act was not a basis for depriving the respondent of an order for costs to which, as a successful litigation, it was prima facie entitled.
"An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees ... reasonably incurred in connexion with the litigation ... . The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the cost of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory."
[18]
"But, despite the differences between civil and criminal proceedings, once the real issues in the summary proceedings are identified, there is no difficulty in applying in such proceedings principles akin to those applicable to the making or refusing of orders for costs in civil cases."
[19]
Though costs in summary criminal proceedings do not follow the event as they do in civil proceedings, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for payment of his costs because it is just and reasonable that the informant should reimburse him for his liability to pay costs which have been incurred in defending the prosecution; Latoudis at 569. The same observation applies, I apprehend, to successful prosecutors.
[20]
[101] The Magistrate ignored the point, advanced by Ms Stockall, that the Council had incurred professional fees for which it sought reimbursement by the order for costs. Consistently with the order for payment of costs of court the Magistrate should have ordered professional costs. They were required as a partial indemnity of the successful complainant. It was not "revenue raising" to seek reimbursement for expenses actually incurred.
[21]
[102] In Schaftenaar v Samuels (1975) 11 SASR 266, referred to with apparent approval in Latoudis by Toohey J (at 564) and McHugh J (at 568), Wells J identified circumstances which courts of summary jurisdiction might consider when making orders for costs. Relevantly they were (274-275):
[22]
"(2) The discretion must be judicially exercised; that is, the court cannot act arbitrarily or upon the ground of some misconduct wholly unconnected with the prosecution, or of some prejudice. ...
[23]
(3) The court may act upon any facts connected with, or leading up to, the prosecution which have been satisfactorily proved or which have been observed in the progress of the case.
[24]
(5) In the exercise of the discretion, there is no question of onus... . A successful party has, in the absence of special circumstances, a reasonable expectation of obtaining an order for payment of costs ... . The court should not, however, exercise the discretion against the successful party 'except for some reason connected with the case'."
[25]
[103] It is of course well established that the conduct of a litigant which increases the scope of litigation, or its costs, or which places upon the opposing party a burden which he ought not to bear in connection with the litigation, may suffer an adverse costs order as a consequence. It may have been that principle which the Magistrate had in mind when referring to "revenue raising", and to the alternative mode of proceeding, but the principle has no application to the present facts. The prosecution was conducted, as far the material shows, economically and efficiently. The amount sought for professional costs was modest. No unnecessary process was shown to have been involved and no unnecessary costs incurred which were sought against the applicant. The prosecution was a perfectly ordinary one conducted in the usual way. The Magistrate's objection appears to have been to the prosecution itself, and that objection was misguided.
[26]
[104] A remark in the judgment of Lord Cave in Donald Campbell and Co v Pollak [1927] AC 732 at 810 is apposite:
[27]
"... the trial judge in that case had taken action, not upon materials which emerged in the trial itself, but upon his personal view that no trial should properly have been insisted upon: and in such circumstances there may well have been ground for holding that he had not really exercised his discretion."
[28]
[105] There was no reason to doubt the respondent's assertion that proceeding by way of complaint and summons would bring a speedier recovery of the fine than proceeding by way of infringement notice and recovery through the Registry. The Enforcement Act contains many provisions by which an offender may obtain an extension of time for payment or commute to it community service. By contrast a fine imposed by the court may be recovered by execution, or levy and distress. Section 161 of the Justices Act preserves that mode of recovery.
[29]
[106] Nor was there reason to doubt the contention that curial proceedings offered a form of deterrence which the Registry would not afford.
[30]
[107] The Magistrate misconceived the basis on which the discretion as to costs should have been exercised. Her Honour did not exercise her discretion judicially but arbitrarily and upon grounds unconnected with the prosecution. Extraneous considerations were allowed to influence the discretion which failed to address the relevant facts advanced by the respondent in favour of the award. Those errors were amenable to appeal, as Judge Durward explained. There is no reason to doubt the correctness of his Honour's judgment. An award of professional costs, in the modest sum requested, could not have been refused on any reasonable basis.
[31]
[108] The application for leave to appeal should be refused, with costs.
[7]Courts Reform Amendment Act 1997, s 62 introduced a s 222(2D) in terms similar to the present s 222(2)(a). The Justice and Other Legislation (Miscellaneous Provisions) No. 2 (1997), s 63, added specific reference to s 651 Criminal Code and s 222(2D) became s 222(1B).
[32]Hallam v Condon (unreported, Wylie DCJ, DC A 1/92, Townsville, 31/1/92) and Foxwell v Juszczak (unreported, O'Brien DCJ, DC A 12/93, Townsville, 20/8/93).
[52]
[34]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304 - 305, 320 - 321.
[46]Pickering v McArthur[2005] QCA 294 per Keane JA at [3], McMurdo P and Dutney J agreeing.
[61]
[47] See Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship SchemeLtd[2008] QCA 100 at [5] per Fraser JA, McMurdo P and Lyons J agreeing.
Moreover, once it is apparent that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole, the court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision: Kammins Co. v. Zenith Investments[1971] AC 850 at pp 880-882; Jones v. Wrotham Park Estates[1980] AC 74 at p 105; Cooper Brookes (Wollongong) Pty. Ltd ... at pp 321-323."
Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. (McAlister v The Queen(1990) 169 CLR 324 at 330; R v Di Maria[1996] SASC 5882; (1996) 67 SASR 466 at 472-474). If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction."[39]