Brisbane City Council v Lui [2025] QDC 10 (2025) 5 QDCR 1

DISTRICT COURT OF QUEENSLAND CITATION: Brisbane City Council v Lui [2025] QDC 10 PARTIES: BRISBANE CITY COUNCIL (appellant) v LUI, Fang (respondent) FILE NO/S: BD3252/24 DIVISION: Appeal PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Holland Park DELIVERED ON: 19 February 2025 DELIVERED AT: Brisbane HEARING DATE: 13 February 2025 JUDGES: Smith AM DCJA ORDER: 1. The appeal is allowed. 2. I order that the respondent pay the appellant the sum of $1,000 by way of professional costs. 3. The orders made below are otherwise confirmed. 4. I make no order as to the costs of the appeal. CATCHWORDS: MAGISTRATES – ORDERS AND CONVICTIONS – COSTS – AGAINST ACCUSED – where the respondent pleaded guilty to breaches of the Food Act 2006 (Qld) - whether the Magistrate erred in failing to award professional costs to the prosecution – whether there was an error in the exercise of the discretion Food Act 2006 (Qld) 2006 ss 8, 9, 39 Justices Act 1886 (Qld) ss 157, 158B, 222, 225 Justices Regulation 2014 (Qld) sch 2 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 50 A Crim R 287, considered Smith v Ash [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115, applied COUNSEL: Mr D Caruana for the appellant -- 1 of 7 -- 2 SOLICITORS: City Legal, Brisbane City Council for the appellant No appearance for the respondent Introduction [1] Pursuant to s 222 of the Justices Act 1886 (Qld), the Brisbane City Council appeals a decision made in the Holland Park Magistrates Court on 24 October 2024 to refuse to order the respondent to pay the appellant’s professional costs in the sum of $1,000. [2] The respondent was fined $30,000 with no convictions recorded on 16 charges of breaching the Food Standards Code contrary to s 39(1) of the Food Act 2006 (Qld). The issue [3] The appellant submits that the Magistrate to failed to exercise her discretion judicially when determining not to order that the respondent pay the appellant’s professional costs (of $1,000) pursuant to s 157 of the Justices Act 1886 or alternatively took into account irrelevant considerations and failed to take into account relevant considerations when exercising her discretion. [4] It is submitted that the appeal should be allowed and it be ordered pursuant to s 225(1) and s 157 of the Justices Act 1886 that the respondent pay the appellant the sum of $1,000 by way of costs referable to the prosecution. [5] The respondent does not oppose the appeal. The proceedings below [6] The matter proceeded before the Magistrate with both parties represented. Pleas of guilty were entered. [7] The statement of facts was tendered as Exhibit 1. In summary, the respondent operated Sushi Kiyo at Coorparoo. A food business licence was granted to the respondent on 22 August 2019. [8] On 29 June 2023, Queensland Health referred a complaint to the Brisbane City Council (‘BCC’). A complainant claimed that their party had eaten at the food business and three people had become ill. At about 1.55pm on 3 July 2023, Council health officers together with a Queensland Health officer attended the food business to investigate. On arrival, staff were working in the kitchen and an inspection took place. [9] During the inspection 16 breaches of the Food Standards Code were observed. [10] The maximum penalty for each offence was $77,400 and thus the maximum penalty which could be imposed was $1,238,400. -- 2 of 7 -- 3 [11] The statement of facts generally set out the facts relied on concerning the various breaches. [12] Photographs and a food safety audit were marked as Exhibits 2 and 3 respectively. Written submissions were filed by the appellant. The appellant’s submissions referred to the relevant legislation and the aggravating and mitigating factors. It was noted that since 2019 at its first inspection, the business received a two star rating with major non-compliance. At a second audit in May 2022, there was also major non- compliance. The business was awarded a zero star rating and an improvement notice. There was partial compliance. The respondent’s other food business also had a mixed compliance history. [13] It was conceded this was an early plea and the defendant had assisted in the efficient administration of justice. There were no previous prosecutions. The business was cooperative. There was a record of interview and relevant admissions were made. The respondent continued to engage with the council even though the business was sold at the time of the interview. She claimed to be struggling with her care obligations to her children and had stepped back from the business and relied on staff. This however did not excuse the significant health risk present in the food business. The breaches were wide ranging and systemic. [14] It was submitted that a fine of between $45,000 and $65,000 was appropriate in the circumstances. The complainant did not seek that convictions be recorded. [15] As to the costs, the appellant sought professional costs of $1,000 pursuant to s 157 of the Justices Act. The costs were not sought by way of punishment but for indemnity for costs sought by the prosecution. There were no special circumstances disentitling the appellant to its costs. [16] In oral submissions, the appellant summarised the matters raised in the statement of facts and also the submissions. [17] The defence also tendered written submissions. It stressed the very early plea of guilty and the cooperation. The main reason for the offending was the respondent was experiencing family difficulties and difficulties running the business property. There was also the loss of a key employee. [18] The respondent was remorseful and pleaded guilty early. The respondent was aware of the rodent problem and regularly organised pest treatments. Copies of the invoices were attached. She recognised that lapses in food handling would not have occurred had she exercised proper supervision. She had given birth to her second child five months earlier and her other child was in their first year at school. This was difficult. The experienced and capable staff manager had left and she had difficulty in engaging competent staff and had a succession of causal staff. The shop was not financially successful and she sold it at a loss in July 2023. After learning of the non-compliance, she took steps to rectify the issues. [19] It was submitted that a fine in the range of $15,000 to $20,000 would be sufficient. [20] The defence relied on its written submissions. -- 3 of 7 -- 4 [21] Towards the end of the proceeding her Honour said “just before we get to penalty I will continue my ongoing issue with council’s claim for costs in circumstances where people are pleading guilty.” [22] Her Honour expressed the view “there was no real prosecution of the case. So I’m not going to award costs as is my usual [practice].” [23] Her Honour ultimately concluded there was no basis to award costs and exercised her discretion against it. Her Honour also said “if you don’t like it you can appeal.” Submissions [24] The appellant submits that the respondent did not dispute the costs order in favour of the appellant. It is submitted the appellant’s solicitor referred to a number of authorities concerning the issue of costs. It is submitted that the Magistrate did not exercise her discretion judicially on facts connected to the case. More rather, she refused to make a costs order based on her view that the appellant should not be seeking costs where an early plea of guilty had been entered. She did so in accordance with her usual practice. In the circumstances, it is submitted she did not exercise her discretion judicially. [25] It is further submitted that the Magistrate failed to give consideration to relevant matters and in all of the circumstances her Honour erred in failing to make the costs order. Discussion [26] The appeal in this case is competent. The majority in Smith v Ash1 held that there was a right to appeal a costs order under the Justices Act. [27] Section 157 of the Justices Act provides: “157 Costs on conviction or order In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.” [28] As to the quantum of such costs, section 158B provides: “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. 1 [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115. -- 4 of 7 -- 5 (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.” [29] Schedule 2 of the Justices Regulation 2014 (Qld) provides: (a) A cost is to be allowed only to the extent to which incurring the cost was necessary or proper to achieve justice or to defend the rights of the party or the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party. (b) Part 2 provides that the fee for instructions and preparation for the hearing including attendance on day 1 of the hearing is up to $1500 and the fee for a court attendance other than the hearing is up to $250. [30] Section 157 of the Justices Act by its terms makes clear that the decision to award or not award costs is discretionary. It was made clear in the High Court that the discretion to award costs is one to be exercised in each case according to its own circumstances.2 It is also to be noted that an order for costs indemnifies the successful party for professional fees and out of pocket expenses reasonably incurred in connection with the litigation, not as a matter of punishment of the unsuccessful party.3 McHugh J noted that whilst there is no right to costs, a successful party has a reasonable expectation of obtaining an order for the payment of costs.4 [31] The issue was examined by the Queensland Court of Appeal in Smith v Ash.5 In this case, the applicant pleaded guilty to a charge of parking without paying, in writing. The Magistrate refused to order the applicant to pay professional costs as the charge could have been dealt with under the State Penalties Enforcement Act 1999 (Qld). [32] The complainant appealed to the District Court and the Judge ordered the defendant pay the sum of $75 by way of professional costs. The applicant then appealed to the Court of Appeal and was successful. [33] The following principles emerge from this decision: (a) Though costs in summary criminal proceedings do not follow the event, successful prosecutors have a reasonable expectation of obtaining an order for costs.6 (b) The discretion to order costs must be exercised judicially and not arbitrarily.7 (c) The court may act upon any facts connected with the prosecution which have been proved or observed in the progress of the case.8 2 Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534; (1990) 50 A Crim R 287. 3 Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at page 566-567; (1990) 50 A Crim R 287. 4 Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at pages 568-569; (1990) 50 A Crim R 287. 5 [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115. 6 Smith v Ash [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115 at [100]. 7 Smith v Ash [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115 at [102]. 8 Smith v Ash [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115 at [102]. -- 5 of 7 -- 6 (d) A successful party in the absence of special circumstances has a reasonable expectation of obtaining an order for the payment of their costs.9 [34] In this case I conclude the Magistrate fettered the exercise of her discretion by deciding the matter on the basis that this was her usual practice. She also erred in finding that there was no real prosecution. There was a real prosecution on serious breaches of the Code which required the drawing of a complaint, the preparation of detailed submissions and an appearance in the court. [35] I find that the discretion was not exercised judicially. The Magistrate refused to make a costs order based on her view that the appellant should not be seeking costs where an early guilty plea had entered. That is not the sole question. That might be one factor to take into account but other factors were to be considered here. [36] Aside from the plea of guilty, other factors relevant to discretion to my mind included: (a) The objects of the Food Act which are to ensure that food is safe and suitable for human consumption and to apply the food codes standard.10 The fact the respondent had a mixed compliance history with previous audits and an improvement notice issued. (b) The fact that the main purposes of the Food Act are achieved by, inter alia, providing for the monitoring and enforcement of compliance with the Act and the code.11 (c) There were multiple breaches of the Food Act in this matter. The maximum penalty exceeded $1m. (d) The respondent had previously had an unsatisfactory compliance history. (e) Lawyers for the BCC were required to attend at a mention in addition to the sentencing hearing. (f) Detailed written submissions on penalty were prepared by the prosecutor. (g) The penalty imposed was not insignificant. (h) Costs were not opposed by the respondent. [37] The mere fact the respondent pleaded guilty could not, without more, justify denying the prosecutor of their just and reasonable costs. They were not punitive. They were compensatory in this case. Only $750 was sought by the prosecutor (one half of the scale amount) together with a $250 mention consistent with the amount mentioned in the Regulation. There was nothing to indicate the fees were unreasonable. Conclusion [38] In all of the circumstances, I am satisfied that the following orders should be made: 1. The appeal is allowed. 2. I order the respondent pay to the appellant costs in the sum of $1,000. 9 Smith v Ash [2010] QCA 112; [2011] 2 Qd R 175; (2010) 200 A Crim R 115 at [102]. 10 Section 8. 11 Section 9. -- 6 of 7 -- 7 3. The orders made below are otherwise confirmed. 4. I make no order as to the costs of the appeal. -- 7 of 7 --