Connors v Wilmar Sugar Pty Ltd (No 2) [2019] QDC 83

DISTRICT COURT OF QUEENSLAND CITATION: Connors v Wilmar Sugar Pty Ltd (No 2) [2019] QDC 83 PARTIES: WAYNE STEVEN CONNORS (Workplace Health and Safety Queensland) (Appellant) v WILMAR SUGAR PTY LTD (ACN 081 051 792) (Respondent) FILE NO/S: D87/18 DIVISION: Criminal PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Proserpine DELIVERED ON: 29 May 2019 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Smith DCJA ORDER: 1. I order the appellant pay the respondent’s costs of and incidental to the appeal fixed in the amount of $7,217.96. 2. The costs are to be paid to the Registrar of the District Court at Brisbane within 28 days to be paid out to the respondent. CATCHWORDS: COSTS – MAGISTRATES’ COURTS – Complaint – Dismissal – Relevant considerations- whether unsuccessful appellant should be ordered to pay costs Justices Act 1886 (Qld) ss 158, 158A, 158B, 226, 232A Justices Regulation 2014 (Qld) Schedule 2 Parts 1,2 and 3 Connors v Wilmar Sugar Pty Ltd [2019] QDC 73 COUNSEL: Mr M Copley QC & Ms C Hartigan for the appellant Mr R Perry QC for the respondent SOLICITORS: Prosecution Services Workplace Health & Safety Queensland Office of Industrial Relations for the appellant Herbert Smith Freehills for the respondent -- 1 of 4 -- 2 [1] This is the costs decision consequent on the decision given in Connors v Wilmar Sugar Pty Ltd.1 In that decision I dismissed an appeal by the appellant against a decision by a magistrate to dismiss a complaint against the respondent. [2] The respondent submits that it was successful in the first instance in defending the complaint. The complaint was brought contrary to the expert report of Inspector Wesche. The respondent was required to incur further considerable costs to respond to the appeal. The respondent refers to the Justices Regulation 2014 (Qld) and submits that total costs in the sum of $7,217.96 should be awarded including professional fees and disbursements. [3] The appellant submits that no order as to costs should be made. It is submitted that the proceeding was brought in good faith after a Workplace Health and Safety Queensland investigation determined that the defendant held a duty to ensure the safety of workers pursuant to s 19 of the Work Health & Safety Act. It is further submitted that this was not a case of insufficient evidence. The point was a narrow one. It is submitted that there was a public interest in the appellant pursuing this matter as it involved a worker who died in the course of his employment and the public has an expectation that matters involving serious injury or death in the workplace are pursued to the full extent of the law. There were no failures to take appropriate steps to investigate the matter. Neither party conducted the matter in any unreasonable way and there was no demonstrable special difficulty, complexity or importance of the matter. It was submitted that it was not in the public interest to fetter the bringing of proper prosecutions by extensive costs orders being made in the event of an unsuccessful prosecution. It is submitted that should costs be awarded the appellant agrees upon the sum sought by the respondent. [4] Section 158 of the Justices Act 1886 (Qld) permits the court to exercise its discretion to award costs that seem “just and reasonable” where a complaint is dismissed by a justice. [5] Section 158A however 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 1 [2019] QDC 73. -- 2 of 4 -- 3 (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. ...” [6] If it is determined that costs should be awarded then one must have regard to s 158B of the Justices Act. This 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. (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.” [7] As to costs of the appeal s 226 of the Justices Act provides: “226 Costs The judge may make such order as to costs to be paid by either party as the judge may think just.” [8] Further, s 232A of the Justices Act provides: “232 Costs of appeal (1) If upon any appeal the judge orders either party to pay costs such order shall direct such costs to be paid to the registrar to be paid over to the party entitled to the same and shall state within what time such costs are to be paid. (2) If such costs are not paid within the time so limited the registrar upon the application of the party entitled to such costs or of any person on the party’s behalf and on payment of the prescribed fee shall grant to the party so applying a certificate that such costs have not been paid. -- 3 of 4 -- 4 (3) Upon production of such certificate to any justice, the payment of such costs may be enforced in the same manner as is hereinbefore provided for enforcing the payment of costs awarded by justices or by putting the recognisance (if any) in suit or in both of such modes. (4) No order as to costs may be made on— (a) the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by justices; or (b) any proceeding preliminary or incidental to an appeal mentioned in paragraph (a).” [9] The amount up to which costs may be allowed for legal professional work under Part 2 of the Scale of Costs is increased by twenty percent for an appeal to a District Court Judge.2 [10] Part 2 of the Scale of Costs sets out the amounts up to which costs may be allowed for legal professional work being $1,500.00 (which is to be increased by twenty percent for an appeal to a District Court Judge) for instructions, preparation and attendance on Day 1 of a hearing. [11] Part 3 of the Scale of Costs sets out disbursement for which costs may be allowed which includes: “Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.” [12] In my opinion, the appellant should pay the costs here. In reaching this conclusion I have full regard to the submissions of the parties and to the matters mentioned in s 158A of the Justices Act. [13] No doubt there is a public interest in Workplace Health and Safety Queensland bringing proceedings before a court where serious injury or death has occurred in the workplace. However in this case the magistrate dismissed the complaint and the appellant chose to appeal that decision. The appellant was wholly unsuccessful and the respondent was put to the expense of responding to the appeal. It was not a straight forward appeal and involved the perusal of three days of transcripts and Exhibit 1 (being a bulky exhibit). [14] In all of the circumstances I am satisfied the appellant should pay costs. I am further satisfied that the amount of $7,217.96 is justifiable. [15] In the circumstances I order: 1. The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $7,217.96. 2. The costs are to be paid to the Registrar of the District Court at Brisbane within 28 days to be paid out to the respondent. 2 Justices Regulation 2014 (Qld), Schedule 2, Part 1, Clause 4. -- 4 of 4 --