Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111

DISTRICT COURT OF QUEENSLAND CITATION: Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111 PARTIES: MARGARET ALLISON (appellant) v CHANNEL SEVEN QUEENSLAND PTY LTD (respondent) FILE NO/S: APPEAL NO: 125/14 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 18 May 2015 DELIVERED AT: Cairns HEARING DATE: 18 May 2015 JUDGE: Morzone QC DCJ ORDER: 1. Appeal allowed. 2. The costs order made on 26 June 2014 is set aside. 3. The appellant will pay the respondent’s costs of the hearing on 26 June 2014 in the amount of $2,000.00 as prescribed by items 1 ($1,500) and 3 ($500 for two mentions) of schedule 2 in the scale of costs in the Justices Regulation 2004 (Qld). 4. The respondent will pay the appellant’s costs of the appeal in the amount of $2,000.00 as prescribed by regulation 4 and items 1 ($1,800) and 3 ($200.00 for two telephone mentions) of schedule 2 in the scale of costs in the Justices Regulation 2004 (Qld). 5. I direct that such costs be paid with 30 days to the registrar to be paid over to the party entitled to the same in accordance with s 232 of the Justices Act 1886, unless otherwise agreed. CATCHWORDS: CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 against order for costs – respondent acquitted of an offence against s 189 of the Child Protection Act 1999 (Qld) after no case submission - whether error in exercise of discretion to award costs – “special … importance of the case” - whether error in exercise of discretion to assess costs higher than the scale. -- 1 of 8 -- Legislation Justices Act 1886 (Qld), s 222, s 223(1), 158A and 158B. Cases House v The King (1936) 55 CLR 499 COUNSEL: A R Philp QC for the Appellant P J Callaghan SC for the Respondent SOLICITORS: Crown Law for the Appellant Schweikert Harris Solicitors for the Respondent [1] On 26 June 2014 the respondent was acquitted of an offence against s 189 of the Child Protection Act 1999 (Qld) after a no case submission was upheld in the Magistrates Court held in Cairns. The trial magistrate ordered that the appellant pay the respondent’s costs of the hearing, and allowed a higher amount of $15,000 pursuant to ss 158A and 158B(2) of the Justices Act 1886 (Qld). [2] The appellant now appeals against the costs order. [3] Both parties have provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered. Grounds of Appeal [4] The grounds of appeal relied upon by the appellant can be summarised as follows: 1. The trial magistrate erred in the exercise of his discretion in awarding costs to the respondent because: he failed to consider all relevant matters; placed excessive weight on other matters; and took account of irrelevant matters. 2. The trial magistrate erred in the exercise of his discretion to award costs in an amount higher than the scale allowed because: he erred in his reasoning and conclusion that the case was of special importance; and failed to give sufficient reasons in the quantification of the costs awarded. Mode of Appeal [5] Pursuant to s 223 of the Justices Act 1886 (Qld), an appeal under s 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial in which to consider, as if presented for the first time, the arguments advanced. [6] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error. -- 2 of 8 -- [7] A mere difference of opinion about the way in which discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.1 [8] The High Court held in House v The King2 held that: "It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance." Whether the trial magistrate erred in the exercise of discretion to award costs [9] The appellant contends that the trial magistrate erred in the exercise of his discretion in awarding costs to the respondent because: he failed to consider all relevant matters; placed excessive with to other matters; and too account of irrelevant matters. [10] Section 158 of the Justices Act 1886 (Qld) provides for the general power to award “just and reasonable” costs in favour of a defendant when a complaint is dismissed. [11] Section 158A(1) fetters the discretion in relation to a complainant police officer or public officer such that a costs order may be made “only if the justices are satisfied that it is proper that the order for costs should be made”. 3 In deciding whether it is proper to make the costs order, s 158(2) provides that the trial magistrate “must” take into account “all the relevant circumstances”. [12] Section 158A(2) provides that: 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 House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519 2 (1936) 55 CLR 499 at 504 and 505 3 Commissioner of Taxation v MacPherson [1998] QCA 396 at [17] -- 3 of 8 -- (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. [13] The appellant contends that the trial magistrate erred by failing to consider all the relevant matters set out in s 158A(2). It is submitted that some matters may be inferred from the reasons, but His Honour did not specifically refer to the sub-section or the matters listed. [14] However, this is not borne out by the record of the proceeding. The reasons for the costs order should also be considered having regard to the trial magistrate’s reasons for dismissal of the complaint, which immediately preceded the costs application and order. The transcript also shows that during the costs submissions of senior counsel for the respondent, the magistrate’s attention was specifically drawn to the considerations in s 158A(2). [15] In any event, the matters listed in s 158A(2)(a) to (i) are only given by way of ‘example’, thereby leaving a magistrate with the mandatory duty to take into account “all relevant circumstances” in deciding whether it is “proper” to make an order for costs.4 [16] Whilst the trial magistrate’s ex tempore reasons conflate the considerations required pursuant to ss 158, 158A and 158B, it is tolerably clear that His Honour did consider the following as relevant circumstances: (a) The proceeding was commenced in good faith;5 (b) The weakness underlying the prosecution case existed at the time the prosecutorial discretion was exercised in bringing the proceeding, and the risk was clear at the commencement of the proceeding;6 4 Commissioner of Taxation v MacPherson [1998] QCA 396 at [18] 5 Decision Page 9 Lines 9-10 6 Decision Page 9 Line 10-14 -- 4 of 8 -- (c) The order of dismissal, constituted by the finding of “not guilty”, was made as a consequence of the trial magistrate finding that there was insufficient evidence to convict or make an order against the respondent.7 (d) The case involved some importance both to the prosecutor as well as to the defendant corporation.8 [17] In my view, these are all relevant considerations and of a similar ilk to the examples in s 158A(2)(a), (b), (c), (d) and (h). The other examples enumerated in s 158B were generally neutral in the circumstances of this particular case. [18] As to the finding that the case involved some importance to the parties,9 it seems that this consideration was more apt to s 158B, but may nevertheless characterise the parties’ attitude and conduct in the proceeding. [19] Having regard to the matters set out above, I have formed the view that the trial magistrate did take into account all relevant circumstances in deciding whether it is proper to make an order, and the discretion did not miscarry. Whether error in exercise of discretion to assess costs higher than the scale [20] The appellant then contends that, having decided to award costs, the trial magistrate erred in the exercise of his discretion to award costs in an amount higher than the scale allowed because: he erred in his reasoning and conclusion that the case was of special importance; and failed to give sufficient reasons in the quantification of costs. [21] In deciding the quantum of costs, s 158B of the Justices Act 1886 (Qld) provides that: (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 [22] The trial magistrate allowed a higher amount for costs having regard to the ‘importance’ of the case. This is disclosed at the outset of his reasons to order costs in favour of the respondent: “… I propose to allow costs. I do so on the basis that this was a case which did involve some importance both to the prosecutor as well as to the defendant corporation. … the defendant is a media company. The complainant is a representative of a department that has major interests in ensuring that provisions of 7 Decision Pages 2 - 3 8 Decision page 8 line 36 to page 9 line 7 9 Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 at [32] – [44] -- 5 of 8 -- the Child Protection Act relating to the prohibition of publication of certain information and there’s other section that impose quite stringent controls on publication of information, where it’s sources of information or whether it’s children the subject of allegations of harm. I don’t know that I would describe the matter as of great complexity or of significant complexity, however, I think though the importance of the matter does give rise to a sense of reasonable in relation to the actions taken by each of the parties in engaging counsel or Crown Law in the case of the prosecutor and it is a matter of such importance that it would be reasonable to engage senior counsel. …” “special … importance of the case” [23] The appellant contends that the trial magistrate erred in his reasoning and conclusion that the case was of special importance. [24] Properly construed the phrase “special difficulty, complexity or importance” should be read as “special difficulty, special complexity or special importance”.10 These are relative terms in relation to the particular case. That is, in my view the test is an objective one of whether the difficulty, complexity or importance of the particular case at hand surpasses what is common or usual in an ordinary case. The inquiry ought not be directed to subjective importance of the case to the respective parties. [25] This is consistent with judicial consideration of an analogous provision by the New Zealand High Court. [26] In T v Collector of Customs,11 Tipping J stated: “The use of the word "special" when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered. Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him. The fact that the scale is miserable, indeed insultingly so, naturally leads a Judge to strain to find sufficient cause to exceed the scale. Any such tendency must be resisted, albeit with little enthusiasm.” [27] Randerson J in the of Interclean Industrial Services Ltd v Auckland Regional Council:12 “In my view, each case must be considered on its own facts. I do not accept the appellant's submission that it is necessary for the prosecutor to demonstrate that the case is one of special difficulty, complexity or importance when compared with other prosecutions of the same type. The question is whether, having regard to the general run of criminal cases, the particular case is one of special difficulty, complexity or importance...” 10 Travers v McDonagh; Carey v La Rocca [2013] QDC 177 per Wall QC DCJ 11 High Court, Christchurch, AP 167/94, 28 February 1995 12 [2002] 3 NZLR 489 -- 6 of 8 -- [28] These decisions, and others of this court, were considered by Farr SC DCJ in Whitby v Stockair Pty Ltd & Anor.13 At paragraph [37] His Honour affirmed his earlier decision of Cullinane v McCahon [2014] QDC 120, where he said, and I agree: “In relation to the second point, I accept that this case was important to the appellant, as no doubt every criminal case is to every defendant. To invoke special importance however, the case must involve more than the charge merely relating to a defendant in his/her professional capacity. ‘Special importance’ is clearly a reference to the importance of the case generally, in terms of questions of law or public interest (this list is not exhaustive) and is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her.” [29] It is of little moment that unlawful child safety publications prosecutions will involve media companies as contended by the appellant. Similarly, I do not accept the respondent’s submission that the standing of the respondent as a local television company in a relatively small community being accused of a serious breach in respect of the Child Protection Act 1999 (Qld), are a significant factor in considering special importance. These matters misdirect the inquiry to subjective considerations of the parties involved in the case, rather than the case itself. In my view, the “special ... importance” ought be shown from an objective assessment of the particular case at hand and whether the case surpasses what is common or usual in an ordinary case. [30] It was not enough for the trial magistrate to simply say that the case “involved some importance” to the parties or was merely one of “importance”. In my respectful view, he misdirected himself by considering the subjective considerations of importance of the case to the prosecutor as well as to the defendant corporation, their respective social standing and interests, and the reasonableness of the level of representation. In doing so, the trial magistrate erred in exercising the discretion. He acted on an incorrect principle. He allowed erroneous or irrelevant matters to guide or affect him, and he did not take into account material considerations about the case itself. [31] It is therefore incumbent upon this appellate court to re-exercise the discretion. [32] This case was not one that raised any important point of law, nor any question of public importance that is likely to arise again either frequently or at all, nor is the result one that involves any manifest injustice. Whilst the case touched upon matters of freedom of speech, that was not unusual in the circumstances. The legal issues were comparatively narrow. The outcome turned on particular words and vision easily disclosed by the recording of the news story. There was no serious factual dispute. The very fact that the acquittal was prompted by a “no case” submission defined the simple question of law. [33] For these reasons, I am unable to discern any special importance in the case. It could not be properly characterised as one of special difficulty, complexity or importance having regard to other cases. There are no grounds to warrant a costs award in an amount higher than the scale. 13 [2015] QDC 79 -- 7 of 8 -- Quantification [34] The appellant finally contends that the trial magistrate failed to give sufficient reasons in the quantification of costs. [35] Unlike the higher courts, in most cases that proceed in the Magistrates Court (especially before the increase in monetary jurisdiction) the magistrate is charged with the duty to assess costs having regard to the appropriate scale at the conclusion of the case. [36] It seems to me that the magistrate undoubtedly drew upon his experience to fix costs as $15,000 after notionally undertaking and reducing an assessment taking account of $12,500 for counsel, $12,500 for solicitor, $4,000 for accommodation and travel and $2,000 for two mentions. [37] Even so, having regard to the conclusion above, it is unnecessary to form any concluded view on quantum. Order [38] For these reasons, I allow the appeal, set aside the orders made by the trial magistrate and substitute the following orders: 1. Appeal allowed. 2. The costs order made on 26 June 2014 is set aside. 3. The appellant will pay the respondent’s costs of the hearing on 26 June 2014 in the amount of $2,000.00 as prescribed by items 1 ($1,500) and 3 ($500 for two mentions) of Schedule 2 in the scale of costs in the Justices Regulation 2004 (Qld). 4. The respondent will pay the appellant’s costs of the appeal in the amount of $2,000.00 as prescribed by regulation 4 and items 1 ($1,800) and 3 ($200.00 for two telephone mentions) of Schedule 2 in the scale of costs in the Justices Regulation 2004 (Qld). 5. I direct that such costs be paid with 30 days to the registrar to be paid over to the party entitled to the same in accordance with s 232 of the Justices Act 1886, unless otherwise agreed. Judge D. P. Morzone QC -- 8 of 8 --