Worchild v Petersen

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - COSTS ORDERS - where District Court allowed applicant's appeal against conviction - where order for costs limited to out-of-pocket expenses - where applicant also sought professional costs - whether applicant should be granted leave to appeal under s 118(3) District Court Act 1967 (Qld) on the issue of costs

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - where District Court Judge made discretionary order as to costs - whether that discretionary order should be set aside

PROCEDURE - COSTS - TAXATION - PARTICULAR ITEMS - SOLICITOR'S PROFIT COSTS - SOLICITOR PARTY - where applicant previously held a Restricted Employee Practising Certificate under the Legal Profession Act 2004 (Qld) - where applicant did not renew his Practising Certificate - where applicant did not hold a Practising Certificate when he represented himself before the Magistrates Court and District Court - whether the District Court Judge erred in refusing to allow professional costs

Justices Act 1886 (Qld)

A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690, cited

Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10, cited

Cachia v Haynes (1994) 179 CLR 403; [1994] HCA 14, considered

Dobree v Hoffman (1996) 18 WAR 36, cited

Guss v Veenhuizen (No 2) (1976) 136 CLR 47; [1976] HCA 57, applied

House v R (1936) 55 CLR 499; [1936] HCA 40, applied

Labaj v Brown & Anor [2005] QCA 54, cited

Lloyd v Hill [2004] NSWSC 652, considered

McIlraith v Ilkin & Anor (Costs) [2007] NSWSC 1052, followed

Pickering v McArthur [2005] QCA 294, cited

Rigney v Littlehales & Ors [2005] QCA 252, cited

Winn v Garland Hawthorn Brahe (a firm) (Ruling No 1) [2007] VSC 360, cited

**[1] McMURDO P: The application for leave to appeal should be refused with costs for the reasons given by Mackenzie AJA.

[2] HOLMES JA: I agree with the reasons of Mackenzie AJA and the orders he proposes.

[3] MACKENZIE AJA: The applicant seeks leave under s 118 of the District Court Act 1967 (Qld) to appeal against a costs order made by a District Court Judge at Southport after he allowed an appeal by the applicant against conviction under s 173B(1)(a)(ii) of the Liquor Act 1992 (Qld). After it was ordered that the appeal be allowed and a verdict of not guilty be substituted, leave was given for submissions to be made in writing as to costs.

[4] The effect of the District Court Judge's reasons with regard to costs was that, in the circumstances, the applicant was entitled to an order for costs. However, they were limited to out-of-pocket costs comprising any filing fees and other court costs paid by him. The applicant's application alleges that the District Court Judge erred in law and principle in several respects. He seeks to bring himself within the principle said to be derived from Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47, that a solicitor who appears in person is entitled to costs for his professional time, not because he is a solicitor in the formal sense, but because, being a solicitor, his costs can be quantified.

[5] The order of the District Court Judge is, firstly, a discretionary one to which the principle in House v R (1936) 55 CLR 499 applies. To set aside such an order, it is necessary to identify some error in principle or other error such as taking into account irrelevant matters, not taking into account relevant ones or acting on a mistake of fact, or making an order that suggests an unidentifiable error because it is plainly unjust on the facts (House v R at 504). Secondly, leave to appeal under s 118(3) 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 (Pickering v McArthur [2005] QCA 294; Rigney v Littlehales [2005] QCA 252; Labaj v Brown [2005] QCA 54).

[6] The focus of the argument in Guss was that the solicitor's name had been omitted from the Roll of High Court Practitioners. This had occurred through official inadvertence and through no fault of his. It was held that this did not disentitle him to recover costs under the principle in Guss. The majority judgment stresses that it would have been otherwise had the omission of the applicant's name from the register been due to the applicant's own fault, in which case the court would not have attempted to assess his capacity to do the work done by him in connection with the case.

[7] The District Court Judge's reasons record that the applicant held a Restricted Employee Practising Certificate under the Legal Profession Act 2004 (Qld) from the Queensland Law Society until 30 June 2006. He had previously held a Practising Certificate under the Queensland Law Society Act 1952 (Qld). Both prohibited him, inter alia, from practising as a solicitor on his own account, either alone or in partnership. It is common ground that he has held no Practising Certificate of any kind since 30 June 2006. The offence was alleged to have occurred on 8 December 2005 but was not finally heard in the Magistrates Court until 4 October 2006 with judgment being given on

8 November 2006. The appeal to the District Court was upheld on 10 May 2007.

[8] In Cachia v Haynes [1994] HCA 14; (1994) 179 CLR 403 the majority judgment questioned the underlying principle upon which the majority in Guss decided in the solicitor litigant's favour, without finding it necessary to overrule it for the purpose of deciding the case. The judgment continued:**

"It suffices to say that the existence of a limited and questionable exception provides no proper basis for overturning a general principle that had never been doubted and which had been affirmed in recent times."

**[9] 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. More recent judicial discussion on the subject shows a trend toward the view that Guss should be regarded as representing the law until overruled by binding authority (e.g. McIlraith v Ilkin [2007] NSWSC 1052 - applying Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10; Winn v Garland Hawthorn Brahe (a firm) (Ruling No 1) [2007] VSC 360; A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690), notwithstanding the contrary view in Western Australia (Dobree v Hoffman (1996) 18 WAR 36). It is clear from this that any review of the law is unlikely to provide a better outcome for the applicant.

[10] The learned District Court Judge adopted the approach taken by Stoddart J in Lloyd v Hill [2004] NSWSC 652 where Guss was distinguished because there was no suggestion that the lack of a Practising Certificate was due to error on the part of a court officer; rather it appeared that the solicitor had not applied for renewal of his Practising Certificate. The District Court Judge considered that the same principle governed the present case. He held that the circumstances of the applicant were distinguishable from those in Guss, holding that it was the appellant's choice not to practice because he had not renewed his Practising Certificate. The learned trial judge was not in error in coming to that conclusion.

[11] The applicant takes issue with the expression used by the District Court Judge that he had "chosen" not to practice. He referred to what he said was an attempt to have the conditions in the original certificate reinstated and to issues concerning what his rights would have been under it. He referred to his inability to afford to renew his certificate in any event. Those issues do not affect the fact that he was not authorised to practice as a solicitor in Queensland at the time of the hearings in the Magistrates Court and the District Court respectively and he therefore falls outside the principle in Guss.

[12] He also submitted that it was contrary to public policy to deny a person the right to earn an income. The Queensland Parliament has the duty to legislate for the peace, welfare and good government of the State. Legislation regulating practice as a lawyer has a function of ensuring that the right to do so is exercised in the interests of the administration of justice and the protection of consumers of legal services and the public in general. Where the legislature has balanced the competing interests and legislated in a way that may restrict the extent to which individuals may practice by requiring registration according to statutory criteria, a complaint of this kind has no substance. It is within the power of the Parliament to do so. It is also legitimate at a more philosophical level (see, e.g., International Covenant on Economic Social and Cultural Rights 1976 Articles 4, 6).

[13] The applicant has not identified any error in the learned District Court Judge's reasoning. Nothing in the record suggests that there are any other defects in the District Court Judge's approach of a kind that would result in his exercise of discretion being challengeable. The applicant has made submissions about the measure of costs he would seek under the Justices Act 1886 (Qld). These are academic if costs in the categories which he seeks are not allowed, and in any event that issue would have been remitted to the District Court Judge if the application for leave and appeal had been successful. It is unnecessary to address them because the grounds upon which the appeal would be founded cannot succeed.

[14] I would refuse the application for leave to appeal. I would order that the applicant pay the respondent's costs of the application on the standard basis.**