Burns v Redland City Council [2025] QDC 39

DISTRICT COURT OF QUEENSLAND CITATION: Burns v Redland City Council [2025] QDC 39 PARTIES: DARREN BURNS (Appellant) v REDLANDS CITY COUNCIL (Respondent) FILE NO: 621/24 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 24 March 2025 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Porter KC DCJ ORDERS: 1. Application by the appellant for an order for costs of the trial below is dismissed. CATCHWORDS: CRIMINAL LAW – PROCEDURE – COSTS – POWER TO AWARD COSTS – where the appellant was convicted of carrying out prohibited development contrary to s. 162 Planning Act 2016 – where the appellant was successful in having the conviction set aside on appeal – where s 158A(1) Justices Act imposed a condition on the Court’s discretion to award costs by reason that the complainant is a public officer – whether under that section the defendant had right to costs or carried an onus to satisfy the Court that an order for costs was proper – where the Court was not so satisfied – whether, if the Court had been satisfied, it was just and reasonable to award costs above the scale due to the special difficulty, complexity or importance of the appeal – where the trial was of special difficulty and complexity -- 1 of 10 -- 2 – whether costs would have been awarded above the scale of costs CASES: LEGISLATION: COUNSEL: SOLICITORS: Baker v Smith (No. 2) [2019] QDC 242 Burns v Redland City Council [2025] QDC 15 Hickey v Crime and Misconduct Commission [2008] QDC 340 SCA v Commissioner of Police [2024] QDC 57 Vukolic v Browning [2022] QDC 279 Criminal Code Act 1899 (Qld) s. 22(2) Justices Act 1886 (Qld) ss. 158, 158A, 158B and 225 Local Government Act 2009 (Qld) s. 237(2) Planning Act 2016 (Qld) s. 162 A. Preston for the appellant K. Wylie and K. O’Hare for the respondent Queensland South Native Title Services Ltd for the appellant Council Legal Services for the respondent [1] On 28 February 2025, for the reasons set out in Burns v Redland City Council [2025] QDC 15, I upheld an appeal by Mr Burns against his conviction on one count of carrying out prohibited development in breach of s. 162 Planning Act. These reasons adopt the defined terms contained in that judgment unless otherwise stated. [2] Amongst the orders I made on that occasion were orders setting aside the learned Magistrates costs orders made at trial. These reasons deal with the question of costs on the trial and on the appeal. Mr Burns seeks no order for costs of the appeal. The only issue remaining in the appeal is the question of what, if any, costs order should be made in respect of the costs of the trial in the light of Mr Burns’ success on the appeal. Principles [3] This Court has the same powers as the Magistrates Court to make orders for costs of a trial which is the subject of an appeal to this Court.1 The effect of my orders 1 Justices Act 1886 (Qld) s 225(3). -- 2 of 10 -- 3 on the appeal is that Mr Burns was entitled to acquittal on the record below. In that circumstance, the powers of the Magistrates Court (and therefore this Court) to make orders for costs of the trial are set out in s. 158(1) Justices Act which provides: 158 Costs on dismissal (1) When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable. [4] Section 158A(1) of the Act contains provisions which inform the exercise of the discretion conferred by s. 158(1) where the complainant is a public officer. (That condition is met here.) Section 158A provides: 158A Exercise of discretion in relation to an award of costs (1) Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made. (2) In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example— (a) whether the proceeding was brought and continued in good faith; and (b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and (c) whether the investigation into the offence was conducted in an appropriate way; and (d) whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and (e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and (f) whether the defendant unreasonably declined an opportunity before a charge was laid— (i) to explain the defendant’s version of the events; or (ii) to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and (g) whether there was a failure to comply with a direction given under section 83A; and (h) whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and (i) whether the defendant was acquitted on a charge, but convicted on another. [5] Read together, the provisions confer a discretion on the Court to order the complainant to pay Mr Burns such costs as seems just and reasonable, though where the complainant is a public officer, the discretion to order such costs is confined by the condition that the Court must be satisfied that it is proper to order the complainant to pay costs. In determining whether it is proper, the Court must consider all relevant circumstances including the factors in s. 158B(2)(a) to (i). -- 3 of 10 -- 4 [6] The genesis of s. 158B was explained by Long DCJ in SCA v Commissioner of Police [2024] QDC 57 (footnotes omitted): [19] The introduction of s 158A into the Justices Act, in 1992, has been acknowledged as being responsive to the decision of the High Court in Latoudis v Casey. The purpose in doing so was expressed, in the relevant explanatory notes, as follows: “The proposed section 158A is required following the majority decision of the High Court in Latoudis v Casey (1990) 170 CLR 534, which held that ordinarily a court of summary jurisdiction, in exercising a statutory discretion to award costs in criminal proceedings, will make an order for costs in favour of a successful defendant. The High Court also held that a court, in exercising its discretion to award costs, should not be influenced by arguments, inter alia, that police and public officers will be deterred from prosecuting cases for fear of incurring costs. The intention of the new section is to ensure that justices have a discretion to award costs in favour of defendants when dismissing complaints made by police officers or public officers where it is proper that an award of costs should be made. In short, the intention of the section is to ensure that there is not a presumption either in favour of awarding costs or not awarding costs in cases where complaints are made by police officers or public officers, but that justices take into account all relevant circumstances and award costs only on the basis that it is proper for an award to be made.” [20] Accordingly, it may be seen that what was intended was the recognition of factors largely of a type which may be regarded as tending against the propriety of awarding costs to a successful defendant and therefore in legislating against the effect statements made in various judgments in Latoudis v Casey, recognising at least a reasonable, if not ordinary, expectation that a successful defendant would be awarded costs. However, the retention of a discretion without any immediate presumption does not serve to deny what was recognised by the majority in Latoudis v Casey as to the compensatory rather punitive basis upon which the power to award costs is premised. Therefore, the prospective compensation of a successful defendant necessarily remains as a substantially relevant circumstance tending towards the propriety of such an award. [7] The above recognises that in place of the presumption towards ordering costs recognised in Latoudis, a more neutral stance is enacted by s. 158A(1) for public officers and police officers. In that case, despite the compensatory nature of orders for costs, Parliament directs attention to the conduct of both the prosecution and the defence. The common theme of the various factors in s. 158A(2) is that costs will be more likely to be ordered if ‘unsatisfactory’ conduct of either party caused or contributed to the trial or the length of the trial, even if it resulted in an acquittal. The list of factors in s. 158A(2) is cast in inclusive language. It is not an exhaustive articulation of relevant circumstances. [8] Bearing that in mind, however, I do not fully agree with the characterisation of s. 158A as providing for “the retention of a discretion without any immediate presumption”, notwithstanding the language of the explanatory memorandum. In my view, the starting point of s. 158A(1) is that costs will not be ordered. That follows because the provision puts an onus on the successful defendant to satisfy the Court that the case is a proper one for a costs order to be made. What policy underpins imposition of such an onus where a defendant has succeeded at trial? To my mind the answer is that given by Shanahan DCJ in Hickey v Crime and Misconduct Commission [2008] QDC 340 at [43] where his Honour observed: -- 4 of 10 -- 5 To my mind, it is clear that the legislature has limited the discretion to award costs to successful defendants in criminal prosecutions as a matter of policy. That policy is based on the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders being made in the event of unsuccessful prosecutions. Any award of costs above the scale must be made with that principle in mind. [9] I therefore do not accept Mr Burns’ submission that this Court, under s. 158A, is balancing the right of the successful defendant to costs against the public interest in prosecutions being brought free of the threat of large costs orders.2 Section 158A is inconsistent with any such right in a successful defendant where the complainant is a public officer. It makes clear that unless the Court is satisfied an order for costs should be made, the latter policy prevails. [10] If costs are to be ordered, the question of quantum arises. Section 158B deals with that matter: 158B Costs for division (1) In deciding the costs that are just and reasonable for this division, the justices may award costs only— (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and (b) up to the amount allowed for the item under the scale. (2) However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case. [11] Mr Burns seeks an order for a higher amount for costs under s. 158B(2). In Baker v Smith (No. 2) [2019] QDC 242, I observed in relation to the test in s. 158B(2) as follows (footnotes omitted): Special complexity, difficulty or importance [227] There are three points which need first to be articulated: (a) First, the statute’s requirement that the case be of special difficulty, complexity or importance begs the question: In comparison to what? In my view, the comparison must be to the difficulty, complexity or importance of the ordinary run of cases heard and determined under the Justices Act on complaint; (b) Second, the appellant in written submissions emphatically emphasised the case must be of special difficulty etc. I agree that the question is not whether the case is difficult, complex or important compared to the ordinary case, but whether it is especially so; and (c) Third, whether a case has that character involves an assessment of all the relevant circumstances. There is no rule that all cases of a particular kind are, or are not, of this character. It is a judgment to be made on a case by case basis. [228] Judge Farr’s decision in Cullinan v McCahon [2014] QDC 120 is consistent with these propositions. His Honour was dealing there with an application for costs in a matter where the case involved a single charge of wrongly granting a building approval by a private certifier. It was put to his Honour that special complexity or difficulty arose because the charge involved statutory complexity, took considerable work and effort to meet and was brought wrongly in some technical respects and without sufficient particulars. Nothing was put before his Honour as to the practical consequences of the complexity of the statutory scheme nor of the extent of the work and effort alleged. 2 Mr Burns’ costs submissions dated 13 March 2025 at [26(a)]. -- 5 of 10 -- 6 Given there was one charge and the application lasted only a few hours, it is not surprising that his Honour refused to impose costs greater than scale costs. [229] His Honour observed: [20] Unfortunately for the appellant, I do not agree that the case was one which involved special difficulty, complexity or importance. [21] There is no doubt that it was a matter that had a degree of difficulty and/or complexity attached to it. The question however is whether it amounted to special difficulty or complexity. [22] “Special” is relevantly defined in The Macquarie Dictionary as “extraordinary; exceptional; exceptional in amount or degree.” [23] The Macquarie Dictionary Online defines it as “distinguished or different from what is ordinary or usual”. [24] Examples of cases where special difficulty or complexity was found to exist are Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169 (‘Lucy No 2”) in reference to Lucy v OCC Holdings Pty Ltd [2008] QDC 004 and Morley v Senewiratne & Anor [2008] QDC 296. These cases involved detailed legal argument by Senior Counsel in hearings that lasted for days. Whilst the length of the hearing and the fact that Senior Counsel was briefed is not determinative of a finding that a matter involves special difficulty, complexity or importance, it can nevertheless be a relevant consideration in the determination of such an issue. In this matter, the application before the Magistrate only lasted for a few hours and did not involve any issues that were out of the ordinary. [25] For instance, it can hardly be said that a matter involves special difficulty or complexity simply because the relevant legislation is complex. If that was the criteria for assessing the issue, then the absurd consequence would be that all matters that come before the court under that legislation would fall into the category of having special difficulty or complexity. Whilst the relevant legislation in this matter might have some complexity to it, in my view the charge was quite straightforward in nature and its particulars were brief and neither suggested an especially difficult or complex case. [26] It may well have been the case that it was a charge that required considerable work and effort to meet, but, once again that does not suggest any special quality. All charges require work and effort on the part of a defendant and his/her legal representatives. The degree will of course vary from case to case. I am not persuaded that the degree required in this matter was specially onerous, difficult or complex. Whilst I appreciate that the appellant’s legal representative submitted to the contrary, it appeared to me that he had an unfortunate tendency to overly complicate relatively simple concepts. [12] I adhere to the analysis stated there. [13] Special difficulty, complexity or importance of the case is not a standalone concept however. The statutory discretion is to allow a higher amount (than scale costs) if that amount is just and reasonable having regard to the special difficulty, complexity or importance of the case. The amount awarded must therefore be measured against the character of the case to assess if it is just and reasonable. Is it proper to order costs? [14] Although the appeal is entitled Burns v Redland City Council, it properly should be entitled Burns v Simpson. Section 158A(1) applies where the complainant is a public officer. The Council is not a public officer as defined in s. 4 Justices Act. However, the complaint is made by Mr Simpson as a public officer. For the reasons given in Vukolic v Browning [2022] QDC 279 at [176] and [179], I -- 6 of 10 -- 7 consider Mr Simpson is the complainant, not the Council. I do not think that the words “for and on behalf of” the Council make any difference to this conclusion, especially given the express reference to s. 237(2) Local Government Act 2009. (Council makes the same point in its submissions on costs.) Accordingly, the complainant was a public officer, Mr Simpson, and s. 158A applies. [15] Where the appellant has been convicted at trial but acquitted on appeal, the Court must necessarily apply s. 158A to the trial which in fact occurred, but from the perspective of the outcome on the appeal. Mr Burns’ submissions [16] Mr Burns accepted that there was no conduct by the prosecution which engaged, in a negative way, any of the factors in s. 158A(2) focussed on the prosecution. Mr Burns also submitted that no conduct of his negatively engaged any of the defendant focussed factors in s. 158A(2)(e) to (i). He further submitted, “[i]n other respects in the light of the result of the appeal, the award of costs below would have been just and reasonable and proper”. No other circumstance was identified that I could see to satisfy the Court that it was proper to order costs against the complainant: see the submission dealt with in paragraph [9] above. The complainant’s submissions [17] The complainant submitted that the factors in s. 158A(2)(f) and (h) were negatively engaged by Mr Burns’ conduct: (a) As to s. 158A(f), the complainant submitted that prior to trial, Mr Burns made no admissions that he carried out the clearing much less why he carried the clearing out. He did not participate in an interview with Council officers. Evidence of the admission was ultimately sought to be adduced through the Police Officer, which evidence was the subject of objection. Mr Burns’ version was only given when he went into evidence at trial; (b) As to s. 158A(h), the complainant submitted that Mr Burns conducted the defence in a manner which prolonged the proceeding unreasonably, because he ought to have made admissions to the clearing and ought not to have pursued a case on the Determination but focussed just on the defence under s. 22(2) of the Code. It was submitted such a case would have taken one day rather than five. [18] The complainant also submitted that vegetation clearing offences are frequently difficult to identify and prosecute and that the Council should not be discouraged by a costs order from pursuing such proceedings given its role in administering the land clearing legislation. Analysis [19] As to s. 158A(f), I am not persuaded that the facts sustain the conclusion that that subparagraph applies to Mr Burn’s conduct at trial. Under that subparagraph the following must be established: -- 7 of 10 -- 8 (a) Mr Burns declined an opportunity to explain his version or to produce evidence likely to exonerate him before the charge was laid; (b) The explanation or evidence could have avoided a prosecution; and (c) Mr Burns declined that opportunity unreasonably. [20] I am willing to accept that Mr Burns was offered an opportunity to explain his version or produce evidence before the complaint was filed and that he declined that opportunity. I have not overlooked in reaching that conclusion that Mr Burns made an admission that he told the Police Officer that he had cleared the land and was within his rights to do it. However, that did not constitute an explanation which reflected the much more complex case run at trial. [21] I do not accept, however, that any explanation or evidence could have avoided the prosecution. Both at trial and on appeal, the complainant challenged every aspect of Mr Burns’ case. Further, given the manner in which the acquittal occurred, it is improbable that even providing his full version in an interview would have avoided a prosecution. I find it more likely than not that the complainant would have (justifiably) maintained its view that the offence was made out on the whole of the evidence and would have conducted the trial in any event. In my opinion, only a plea could have avoided the prosecution. [22] I am also not persuaded that Mr Burns refused any such opportunity unreasonably. The assessment of reasonableness must consider the whole of the circumstances in which the pre-trial opportunity was offered. I do not have that evidence before me. [23] Finally, to the extent the complainant’s argument on this issue focussed on Mr Burns’ conduct at trial, it was not relevant to the application of s. 158A(f), which is concerned with conduct before the charge was laid. [24] As to s. 158A(h), while there is some merit in the complainant’s submission, I do not accept that the acquittal on the honest claim of right defence arising out of the evidence on the cultural activity exemption could have been obtained in one day. [25] True it is that the case based on the Determination was weak and failed, that the case based on the cultural activity exemption also failed and that appeal succeeded on a basis not contended for at trial3 or on the appeal. It is also correct that the evidence led by witnesses other than Mr Burns did not materially contribute to the success of the s. 22(2) defence because the defence necessarily turned on Mr Burns’ state of mind and there was no reliance on those other witnesses’ evidence to inform that state of mind. It must also be recognised, however, that the acquittal arose from the evidence Mr Burns gave which supported the cultural activity exemption. This means it turned on: (a) Evidence Mr Burns gave at trial, much of which was relevant to his state of mind as to his entitlement to clear as he did; and 3 MFI-A at para. 124. -- 8 of 10 -- 9 (b) The legal analysis of the cultural activity exemption and the honest claim of right defence generally. [26] The consequence is that, while the prosecution case was necessary (and largely successful), and Mr Burns’ defence case was largely unsuccessful, a substantial part of his case was necessary to make out the honest claim of right, even if the defence on the cultural activity exemption failed on the merits. Accordingly, while the manner in which Mr Burns conducted his defence did extend the length of the trial somewhat, it did not extent it by four days. In the circumstances, I am unpersuaded that his conduct prolonged the proceeding unreasonably. [27] Is there any other relevant circumstance to consider? [28] I accept the complainant’s submission as to the difficulty in discovering and prosecuting land clearing offences and to the importance of doing so. The point is often made in the context of sentencing for land clearing offences but it is also a consideration which informs the policy setting in s. 158A(1) which places an onus on a successful defendant to satisfy the Court that a costs order is proper. It is a relevant circumstance that the prosecution was for such an offence. [29] Further, I find below that the trial was of special difficulty and complexity. Is that a matter which can be a relevant circumstance under s. 158A(1)? I consider that it can be. If the proper presentation of a defence to proceedings on a complainant necessarily requires a defendant, by reason of the character of the charge and the issues it engages, to engage experience counsel and prepare complex submissions, then that is a factor which is rationally relevant to whether the Court should be satisfied that it is proper that an order for costs be made. That is because where a defendant is exposed to much more than normal expenses in preparing a defence to a complainant, the trial is taken out of the ordinary run of cases. As a factor, however, this tends to be balanced by the fact that in such a case, the burden on the complainant will be similarly large, with the result that more care must be exercised before ordering costs against a complainant in such a case so as to avoid the risk of discouraging complex prosecutions. Bearing all that in mind, in this case, it is a neutral factor. [30] Ultimately, Mr Burns has not satisfied me that an order for costs against the complainant is proper. The argument in favour of that conclusion does not rise much above the assertion that it was a trial involving complex issues, most of which Mr Burns failed to make good, but that he ultimately won. In my respectful view, that is not a sufficient argument to discharge the onus under s. 158A(1). [31] For these reasons, I dismiss Mr Burns’ application for costs of the trial. Quantum [32] Assuming I am wrong in that conclusion, I turn to question of quantum. Special difficulty, complexity or importance [33] The trial was a matter of special difficulty and complexity. -- 9 of 10 -- 10 [34] As to difficulty and complexity, the trial brought the law of native title, the law of vegetation clearing offences and s. 22(2) of the Code. Blended together, as they were in this case, and conducted over five days, that created a trial which was of special difficulty and complexity. While I respect the learned Magistrates’ conclusion to the contrary, I must give effect to my own experience of dealing with the issues which arose at trial. In my opinion, it would have been almost impossible for Mr Burns’ defence to be conducted properly without the benefit of counsel experienced in native title matters as well as the criminal law. [35] Mr Burns also submitted that the case was of importance because: (a) There was a public interest in having determined the manner in which the non-exclusive native rights of the Quandamooka people fall to be determined; (b) There were significant fundamental commonalities between the Determination and other determinations in Queensland, especially in respect of non-exclusive use areas; and (c) The judicial determination of the scope of rights had broader application than just to land clearing and was apt to apply to other areas of land regulation. [36] I am not persuaded that the trial was important in that sense for the following reasons. [37] I am willing to accept that there are standard forms of words used in other determinations which are similar to the words in the Determination in relation to non-exclusive use areas. Having spent some time reflecting on the text of that part of the Determination, I can well imagine there are aspects which are ambiguous. However, to my mind there was not much ambiguity about the proposition that on the proper construction of the Determination, it was not lawful to build a permanent, sole occupancy house on non-exclusive use land. The trial did not resolve much else from the perspective of construction of the scope of non- exclusive use rights. Just and reasonable [38] What higher amount would be just and reasonable having regard to the special difficulty and complexity of the case? In my view, it is necessary to determine a figure considering the nature of the difficulty and complexity of the case. Setting such a figure is not a scientific process. While the scale can provide guidance, it does not confine the scope of the discretion. [39] Considering the submissions of both parties, and the circumstances of the trial in the light of the outcome of the appeal, I would have awarded costs of $25,000. This would balance the need to provide some substantial compensation for costs to Mr Burns against the limited basis of his success and the need to prevent excessive costs orders discouraging public officers and councils from administering land clearing legislation in the public interest, including by conducting prosecutions. -- 10 of 10 --