Commissioner of Police v Keating-Jones (No 2) [2022] QDC 182

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Keating-Jones (No 2) [2022] QDC 182 PARTIES: COMMISSIONER OF POLICE (appellant/applicant) v NATHAN JOHN KEATING-JONES (respondent) FILE NO/S: D211/2020 DIVISION: Appeal PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court, Maroochydore DELIVERED ON: 12 August 2022 DELIVERED AT: District Court, Maroochydore HEARING DATE: 16 March 2022 JUDGES: Long SC, DCJ ORDER: Applications dismissed. CATCHWORDS: PROCEDURE – Costs – Where the appellant’s appeal against the permanent stay of a charge was allowed – Where the appellant applied for an award of costs in relation to the appeal and of the summary proceeding – Where a judge of the District Court has separately expressed powers to award costs as are just and reasonable having regard to a scale of costs contained in the Justices Regulation 2014 (Qld) – Where the appellant is not seeking costs which exceed the scale entitlements – Whether the appellant has demonstrated the incurrence of costs in respect of legal professional work up to the scale entitlements LEGISLATION: Justices Act 1886 (Qld) ss 157, 158, 158A, 158B, 222, 225, 226, 232A Justices Regulation 2014 (Qld) Schedule 2 Part 1 cls 2, 3, 4 Transport Operations (Road Use Management) Act 1995 (Qld) s 80 Uniform Civil Procedure Rules 1999 (Qld) r 691 CASES: Cachia v Haynes (1994) 179 CLR 403 Latoudis v Casey (1990) 170 CLR 524 -- 1 of 7 -- 2 Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 COUNSEL: Cook C for the applicant Boyd N for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the applicant McGinness & Associates Lawyers for the respondent Introduction [1] In this matter, the Commissioner of Police appealed, pursuant to s 222(1) of the Justices Act 1886 (“Justices Act”), against an order made in the Magistrates Court at Maroochydore that the proceedings before that Court, in respect of a charge against the respondent pursuant to s 80(11) of the Transport Operations (Road Use Management) Act 1995, be permanently stayed as an abuse of process. [2] On 16 March 2022, that appeal was allowed, and an order made that the Magistrate’s order be set aside with a direction for the return of the complaint to the Magistrates Court at Maroochydore to be heard according to law and reservation of the question of costs. [3] The question of costs was reserved upon the application made then for the appellant for an award of costs in the total sum of $3,600, being in respect of the appellant’s legal costs of the summary hearing fixed at $1,500 and legal costs of the appeal fixed at $2,100. This application was opposed by the respondent and directions were given so that it could be determined upon written submissions. The contentions [4] The only statutory source of power to make the awards sought which is identified by the appellant, is s 226 of the Justices Act. That provision is to be found in Division 1 of Part 9 of the Justices Act (which includes s 222) and deals with the appellate jurisdiction of this Court in respect of matters dealt with in the Magistrates Court, otherwise pursuant to the Justices Act. Section 226 is expressed in terms that: -- 2 of 7 -- 3 “The judge may make such order as to costs to be paid by either party as the judge may think just.” The apparent misconception that this is a power to deal with costs relating to the proceedings in the Magistrates Court is clear when, as the appellant does, reference is made to s 232A (also in Division 1) which provides that: “232A Costs for division (1) In deciding the costs that are just for this division, the judge 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 judge may allow a higher amount for costs if the judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.” [5] The source of power for the order sought in respect of the costs of the proceedings below, in the amount of $1,500, is found otherwise, in the powers given to a judge on hearing such an appeal, by s 225(3) of the Justices Act, which provides that for the purpose of s 225(1) in allowing a judge to make “any other order in the matter the judge considers just”, that “the judge may exercise any power that could have been exercised by whoever made the order appealed against”. Accordingly, that might be considered to engage any other power that the Magistrate would have had in dismissing the application for the stay of proceedings, as was effectively determined, in the appeal, to be what the Magistrate should have done. [6] That requires attention to Division 8 of Part 6 of the Justices Act and particularly s 157, which applies to allow for orders by Magistrates “that the defendant shall pay to the complainant such costs as to them seem just and reasonable”, in instances where there are “summary convictions and orders”. The definition of order in s 4 of the Justices Act is expressed in broad ambit and “includes … grant or refusal of any application …”. It is to be noted that a separate provision in Division 8 of Part 6 of the Justices Act: s 158, permits an order for payment of costs by a complainant, limited in application to circumstances where there is a dismissal of a complaint. The exercise of discretion so permitted is expressed in similarly broad terms; in permitting an “order that the complainant shall pay to the defendant such costs as to them seem just and reasonable”. -- 3 of 7 -- 4 [7] However, each of these separately expressed powers is subject to the fetters expressed in s 158B, as follows: “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.” In addition and in contrast to the power expressed in s 157, as is relevant here, it may be noted that the power expressed in s 158 is further fettered by s 158A(1) providing that: “(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.” And by s 158A(2), which provides for a list of specific considerations which may be included in respect of having regard to “all relevant considerations”, in deciding whether it is proper to make such an order. [8] Reference to those sources of power demonstrate that the power, in each instance, is entirely discretionary and as the respondent correctly contends, is not to be exercised upon any principle that costs usually follow the event, as is particularly recognised in civil proceedings in rule 691 of the Uniform Civil Procedure Rules 1999 (Qld).1 As is recognised in the submissions of the parties, the basis for an award of costs lies in compensation of a successful party rather than punishment of the unsuccessful party.2 1 Although in Latoudis v Casey (1990) 170 CLR 524, at 544, 565 and 566 , there is to be found a majority view that a successful defendant in summary proceedings may have a reasonable expectation of an award of costs (subject to considerations relating to the bringing of a charge or conduct of the proceedings) or as an ordinary outcome, there is also expressed disinclination to equate the situation to civil proceedings or to adopt a general rule as to costs following the event: at 543 and 568-9. It is also to be noted that in the context of discussion of the legislative provisions (such as have been separately identified, above) as a departure from the general common law rule that “the Crown neither receives nor pays costs”, Mason CJ also observed (at 538) that the fact of such separate provisions might also be an indication of “a legislative appreciation that the exercise of each discretion might call for an examination of different considerations”. 2 Latoudis v Casey (1990) 170 CLR 524 at 543, 562-3 and 567. -- 4 of 7 -- 5 Accordingly some submissions of the respondent which tend to focus upon the potential impact of an award upon the respondent by analogy with a form of punishment, are not to the point. [9] It is of some importance, in dealing with this matter, to understand that as flagged at the outset, on 16 March 2022 and further developed in the written submissions of the respondent, there is challenge to the entitlement of the appellant to any award which is sought on the basis of being for the incurrence of “legal costs”. That contention may be seen to stem from an understanding that the appellant is expressly seeking what are no more than the amounts set out for respective items in the scale of costs provided by s 19 and Schedule 2 of the Justices Regulation 2014, for Part 6 Division 8 and Part 9, division 1 of the Justices Act and more particularly and respectively, s 158A and s 232A. And further understanding that those claims are in respect of allowable amounts in respect of “all legal professional work even if the work is done by more than 1 lawyer”.3 [10] As contended for the respondent, there is little meaningful engagement for the appellant, as to this point. In the written submissions,4 there is only: (a) attention drawn to recent annual reports for each of the Office of the Director of Public Prosecutions and the Queensland Police Service, indicating respective figures for expenditure, including in respect of s 222 appeals where the Director of Public Prosecutions was briefed to appear for the Commissioner of Police, in support of the contention that “[b]oth the Queensland Commissioner of Police and the Director of Public Prosecutions incur legal costs.”;5 (b) contentions to the effect that at first instance and particularly on appeal, the matter involved such complexity or difficulty, as also demonstrated by the involvement of the officer in charge of Police Prosecutions at Maroochydore, before the Magistrate, and the Principal Crown Prosecutor at Maroochydore, 3 Justices Regulation 2014 Part 1, clause 2 and clause 4, which allows for an increase of 20% in respect of the allowable amounts for “legal professional work” in relation to an appeal. 4 Written submissions of the appellant filed 31/3/22 (noting that by email to my associate on 14 April 2022, it was indicated that the appellant did not intend to take the opportunity which had been granted, to file and serve any reply). 5 Ibid, at [21]-[24]. -- 5 of 7 -- 6 in this Court, such as may have made it appropriate to seek amounts above scale, pursuant to s 158B(2) and/or s 232A(2);6 and (c) emphasise otherwise that “the appellant seeks costs at scale to compensate the appellant for the costs incurred in prosecuting the appeal”.7 [11] It may be acknowledged that the appellant was obviously represented by a lawyer in this Court, but the position is not so clear that the appellant has incurred costs in respect of any such legal professional work in the proceedings in the Magistrates Court. It may well be that, in a relevant sense, it can be established that there has been the incurrence of such costs as are recoverable, but and in light of the adverse contention raised by the respondent, such basis has not been identified.8 Having regard to the basal consideration that an award of costs is compensatory in nature, it is axiomatic that such costs must have been incurred to be recoverable and because they are, subject to an exercise of discretion to allow a greater amount under s158B(2) or s 232A(2), allowable “up to the amount allowed for the item under the scale”.9 That position is made clear by reference to clause 3 of Part 1 of Schedule 2 to the Justices Regulation 2014, which provides: “Only necessary or proper costs may be allowed A cost is to be allowed only to the extent to which— (a) incurring the cost was necessary or proper to achieve justice or to defend the rights of the party; or (b) the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.” [12] These considerations will often confront a defendant in respect of an application for costs and may often be dealt with upon an uncontested indication that the defendant is liable for at least the quantum of the relevant scale item(s), in legal professional costs. However and when put in contest or not the subject of acceptance by an opposing party, some justification, including by evidence if necessary, is required. The position is no different for a complainant or prosecuting authority. 6 Ibid, at [19] and [25]. 7 Ibid, at [20]. 8 By way of analogy, may be noted the position of a litigant in person whose ability to recover costs is limited to those items which are allowable in respect of disbursements in Part 3 of Schedule 2 to the Justices Regulation 2014; see: Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 in application of Cachia v Haynes (1994) 179 CLR 403. 9 s 158B(1)(b) and s 232A(1)(b). -- 6 of 7 -- 7 [13] Accordingly, a critical shortcoming with the applications made by the appellant is the absence of the establishment of any basis upon which it could be concluded that an order for the scale items which are sought, may be appropriate because of the incurrence of legal professional costs up to such an amount.10 Conclusion [14] It is therefore unnecessary to deal with any of the alternative contentions for the respondent, as to why, in any event, it might be inappropriate to make the orders sought and instead is more appropriate that the costs should “lie where they fall”.11 The appropriate order is that the appellant’s applications for costs are dismissed. 10 See the respondent’s written submissions filed 13/4/22, at [8]-[9]. 11 Appellant’s written submissions, filed 31/3/22, at [6]. -- 7 of 7 --