Bell & Anor v Unimin Australia Pty Ltd (No 4) [2013] QMC 3

MAGISTRATES COURTS OF QUEENSLAND CITATION: Bell & Anor v Unimin Australia Pty Ltd (No4) [2013] QMC 3 PARTIES: GRAHAM BELL (complainant) WILLIAM GORDON (complainant) v UNIMIN AUSTRALIA LIMITED (defendant) FILE NO/S: MAG245636/09(1), MAG245626/09(6), MAG113031/10(7) DIVISION: Magistrates Courts PROCEEDING: Complaint – Application to strike out or permanently stay proceeding – Application for costs ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 1 March 2013 DELIVERED AT: Brisbane HEARING DATE: 28 September 2012 (in Warwick) MAGISTRATE: Lee G ORDER: The defendant’s application to strike out or permanently stay the complaint under the Forestry Act 1959 made one day outside the limitation period for an abuse of process is granted. The application by the defendant for costs in this respect is refused. The defendant’s application to strike out or permanently stay complaints under the Integrated Planning Act 1997 and Environmental Protection Act 1994 for failing to plead essential factual ingredients and for an abuse of process is refused. The application by complainant Bell for costs in defending those complaints is granted. I order the defendant pay the complainant’s costs assessed at $199,557 The application by complainant Bell for costs in successfully defending the defendant’s costs application on the Forestry Act complaint and its application for costs on the other two complaints is granted. I order the defendant pay the complainant’s costs assessed at -- 1 of 36 -- 2 $55,130. CATCHWORDS: MAGISTRATES COURTS – JURISDICTION, PRACTICE AND PROCEDURE – complaint made under the Justices Act 1886 – application by applicant before trial to strike out or permanently stay three complaints for abuse of process - where defendant successful on one issue - where defendant unsuccessful on the other issues - liability and quantum of costs for each party Justices Act 1886 (Qld), ss 4, 88 (1) & (3), 145, 146, 157, 158, 158A, 159, former 209, 222 Justices Regulation 2004, reg 18, Schedule 2 The following cases were either cited or considered: Bell & Anor v Unimin Australia Limited [2010] QMC 1 Bell & Anor v Unimin Australia Limited (No 2) [2011] QMC 24 Bell & Anor v Unimin Australia Limited (No 3) [2012] QMC 16 Bell v Carter; ex parte Carter [1992] QCA 245 Boettcher v Boettcher (1948) St R Qd 73 Byrne v Baker (1964) V.L.R. 443 Commissioner of the Police Service v Hall (2005) 158 A Crim R 10; [2005] QSC 388 Coulter v Ryan [2006] QCA 567 Crowe v Bennett; ex parte Crowe [1993] 1 Qd R 57 Darcey v Pre-Term Foundation Clinic and Another [1983] 2 NSWLR 497 Director-General, Department of Environment and Climate Change v Gleeson and others (No 2) [2009] NSWLEC 200 Director of Public Prosecutions v Boykin, unreported, 102204 of 1994, 21 June 1994 (Lexis reference: BC9405141) Doonan v McKay [2002] QCA 514 & [2002] QCA 531 Durrant v Gardner [2000] QDC 198 Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 Hickey v Crime and Misconduct Commission, File 2868 of 2006 (19 May 2008 Higgins v Comans (2005) A Crim R 565; [2005] QCA 234 Markisic v Vizza [2002] NSWCCA 53 -- 2 of 36 -- 3 Mathews v Cabrera [2010] QCA 300 Owen v Cannavan [1995] QCA 324 Phillips Morris; ex parte Director-General, Department of Families, Youth and Community Care [1999] 1 Qd R 89; [1998] QCA 47 Power v Heyward [2007] QSC 26 Paulger v Hall [2002] QCA 353 Queensland Fish Board v Bunney; ex parte Queensland Fish Board [1979] Qd R 301 R v Forbes; ex parte Bevan (1972) 127 CLR 1 Schneider v Curtis [1967] Qd R 300 Seven Network Limited v News Limited [2007] FCA 2059 Spicer v Carmody (1948) 48 S.R. (NSW) 348 Upton v Commissioner for Police [2012] QCA 88 Ward v Western Australia [1999] FCA 580 Wilson v McDougall (1987) 11 NSWLR 241 COUNSEL: R Byrnes for defendant A Glynn SC with K Mellifont SC for complainants SOLICITORS: Sparke Helmore Lawyers for defendant Litigation Unit, Department of Environment and Heritage Protection (formerly Department of Environment and Resource Management) for complainants [1] On 12 July 2012 I delivered reasons for judgement (the principal judgement) in an application by Unimin Australia Limited (Unimin) to permanently stay or strike out three complaints charging it with offences under the Integrated Planning Act 1997 (IPA), the Environmental Protection Act 1994 (EPA) and the Forestry Act 1959 (FA)1. The principal judgment followed two previous judgements in this application2. I refer to the three judgments for the history and context of this application. 1 Bell & Anor v Unimin Australia Limited (No 3) [2012] QMC 16; 2 Bell & Anor v Unimin Australia Limited [2010] QMC 1 and Bell & Anor v Unimin Australia Limited (No 2) [2011] QMC 24; -- 3 of 36 -- 4 [2] The matter was adjourned on 12 July 2012 to afford the parties an opportunity to consider the principal judgement for a contemplated costs application. On 3 August 2012 I directed the parties to file and serve submissions. The hearing of the application for costs was listed for 28 September 2012 in Warwick. [3] I deferred making formal orders on 12 July 2012 until I was in a position to finally determine the question of costs3. However, on that day I foreshadowed the following orders pending the hearing and determination of the costs application4:  Granting Unimin’s application to strike out or permanently stay the FA complaint as it was made one day outside the limitation period; and  Refusing Unimin’s application to strike out or permanently stay the IPA and EPA complaints on all other grounds. [4] Unimin seeks costs in respect of its successful application to permanently stay the FA complaint (the subject of [2012] QMC 16). This is opposed by the complainant. [5] The complainant Bell5 seeks costs in successfully defending Unimin’s application to permanently stay or strike out the IPA and EPA complaints for an abuse of process (the subject of [2012] QMC 16) as well as for failing to plead essential factual ingredients on the basis of Kirk6 (the subject of [2010] QMC 10)7. The application for costs includes those costs associated with Unimin’s unsuccessful sub-application seeking orders compelling the 3 Although not expressed as such at paras [259] to [261] of the principal judgment, this was made clear in court on 12 July 2012 – see Transcript 1- 3 lines 20 to 60; 1-4 lines 1 to 10; 4 In Bell v Carter; ex parte Carter [1992] QCA 245 the Court of Appeal said at page 5 of the joint judgment that it was necessary a formal dismissal be deferred until costs can be determined. Section 159 JA provides: The sum allowed for costs to be specified in the conviction or order The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction. 5 Graham Bell is the complainant in the IPA and EPA complaints; William Gordon is the complainant in the FA complaint. 6 Kirk v. Industrial Relations Commission of New South Wales et al (2010) 239 CLR 531; (2010) HCA 1. 7 Unimin did not agitate Kirk in respect of the FA complaint. -- 4 of 36 -- 5 complainants to call witnesses to be available for cross examination in Unimin’s stay application (the subject of [2011] QMC 24). This is opposed by Unimin. Complainant Bell also seeks costs in defending Unimin’s application for costs as well as costs of this application in seeking costs against Unimin. This is also opposed. [6] These reasons are concerned with the liability of each party to pay costs and the quantum of those costs. Unimin’s Application for costs on the FA Complaint Liability for costs [7] The basis for this application is that while there is no express power in the Justices Act 1886 (JA) to award costs in favour of a defendant in a successful stay application8, that power is necessarily implied so that the court can act effectively when exercising another implied power to stay a prosecution before the prosecution’s case begins: Power v Heyward [2007] QSC 26; Doonan v McKay [2002] QCA 531 at [2]. Spicer v Carmody (1948) 48 S.R. (NSW) 348 and the Queensland Fish Board v Bunney; ex parte Queensland Fish Board [1979] Qd R 301 were also relied on. I will return to these later. [8] In citing Power v Heyward (supra) and Upton v Commissioner for Police [2012] QCA 88 per A. Lyons J at [24], the submission continues that the court has power to control its own procedures unless restricted by statute and is entitled to develop its own practice so as to avoid unfairness where a defendant has succeeded in having a complaint stayed and to protect the integrity of the process. Ward v Western Australia [1999] FCA 580 per Lee J, a Federal Court decision on costs provisions in the Native Title Act 1993 (C’th), was cited in support. Also, it was submitted it would be “manifestly unfair” for a defendant to be deprived of the costs of a successful application to stay a complaint9: Darcey v Pre-Term Foundation Clinic and Another [1983] 2 NSWLR 497 per Hunt J in the Administrative Law Division of the New South Wales Supreme Court. 8 Section 158 JA provides for an express power to award costs to a defendant only where a complaint is dismissed; para [12(b)] submissions for Unimin; 9 Paragraph [5] submissions for Unimin; [1983] 2 NSWLR 497 at 504 at “C”; -- 5 of 36 -- 6 [9] Darcey was charged with entering the premises of an abortion clinic without lawful excuse. In a New South Wales Local Court constituted by a Magistrate he subpoenaed the clinic for its records relating to abortions carried out. Such records included details of patient’s names, case histories etc. The Magistrate set aside the subpoena as an abuse of process and awarded costs in favour of the clinic. Hunt J. agreed. [10] There being no express statutory provision as to costs, in accepting submissions for the clinic Hunt J concluded there was an “inherent power” in the Magistrate to award costs where the clinic was successful in having the subpoena set aside as an abuse of process. He described the subpoena as “outrageous” and in those circumstances “it would certainly be surprising if [the Local Court] did not” have the power to award costs. Later he said at 504 at “D”10: To deny the court jurisdiction to make such an order would be to encourage outrageous subpoenas such as the one in question here … [11] Darcey was cited in dicta in a joint judgement 11 of the Queensland Court of Appeal in Phillips v Morris; ex parte Director-General, Department of Families, Youth and Community Care [1999] Qd R 89 at 91 for the underlined proposition (footnotes omitted)12: However, there is a body of authority against the implication of a power in the Magistrates Court to award costs, except perhaps incidentally to the abuse of its process or otherwise protecting its function as a court. (my emphasis) [12] In Phillips an applicant in child protection proceedings withdrew the application against presumably a parent in the Magistrates Court seeking an order that the child be placed in the care of the State. The Magistrate considered there was an inherent power to award costs and ordered costs against the applicant. The Court of Appeal set aside that order concluding that the Magistrate had no power to order costs against the applicant. 10 Citing Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 (House of Lords); 11 The central issue was considering provisions of then Children Services Act 1965, Childrens Court Act, Childrens Court Rules and the Justices Act 1886 as to whether there was any express, implied or “inherent” power to award costs; this was answered in the negative; there was no suggestion of an abuse of process in that case; see also para [14] complainant’s submissions to that effect; 12 Fitzgerald P., Davies JA and Williams J (as he then was); -- 6 of 36 -- 7 [13] While the Court of Appeal in Phillips cited Crowe v Bennett; ex parte Crowe [1993] Qd R 57, Queensland Fish Board v Bunney and other cases in support of the passage not underlined above, there was no reference to Macrossan CJ’s statement in Crowe that Darcey should not be followed in Queensland in respect of the exception in the underlined passage above13. This will be discussed below. [14] During oral submissions two other New South Wales cases were referred to along similar lines to Darcey to support the view there was a body of opinion of an “inherent power” in Local Courts to award costs in favour of defendants in successfully applying for a stay. [15] In Markisic v Vizza [2002] NSWCCA 53 family law proceedings had previously been taken all the way to the High Court resulting in an order that the subject child be returned to the mother in Macedonia under the Hague Convention. Two years later the father initiated proceedings in the New South Wales Supreme Court seeking orders that certain individuals be dealt with by the Supreme Court exercising summary jurisdiction for alleged offences concerning the conduct of the Hague Convention proceedings and subsequent removal of the child. The primary judge struck out the proceedings and awarded costs against the father. The Court of Appeal agreed. The court said at [26] there is “ample authority that where a court enquires as to whether it has jurisdiction in a given matter, there is power to order costs”. This appears to be the statement relied on by Unimin to support the proposition that this applies to Magistrates Courts in Queensland. [16] The second case raised in oral submissions for Unimin is Director-General, Department of Environment and Climate Change v Gleeson (No 2) [2009] NSWLEC 200 per Lloyd J in the New South Wales Land and Environment Court. Prosecutions had been permanently stayed in the Land and Environment Court for offences under the Native Vegetation Conservation Act 1997 (NSW). The question was whether that court had power to award costs to the successful defendants. Lloyd J considered himself bound by Markisic v Vizza and concluded that the prosecutor should pay the defendant’s costs. 13 Para [14] complainant’s submissions; -- 7 of 36 -- 8 After noting the Land and Environment Court was a superior court of record with implied or inherent powers to award costs like other superior courts (unless inconsistent with statute),14 he considered Darcey among other cases as well as the statutory provisions relating to criminal proceedings in New South Wales. [17] Unimin further submitted that the JA is not a code for the application of costs and a power to award costs should be implied just as there is an implied power to adjourn proceedings in the absence of explicit power. Boettcher v Boettcher (1948) St R Qd 7315 was cited as authority that there is an implied power of adjournment in the Magistrates Court. [18] In response the complainant submits that, as an inferior court, this court only has powers conferred on it by statute and in particular, the power to award costs: Crowe v Bennett; ex parte Crowe [1993] 1 Qd R 57 at 60 & 62 per Macrossan CJ and McPherson J respectively16; Phillips v Morris (supra) at 91 and Commissioner of the Police Service v Hall (2005) 158 A Crim R 10 at 13 per White J (as she then was). Both Crowe and Hall adopted the reasoning in Queensland Fish Board v Bunney. [19] By majority, the Court of Appeal in Crowe held that the power to award costs upon an adjournment of summary trials pursuant to sections 88(1) & (3) JA, did not extend to a power to award costs upon an adjournment of committal proceedings. This view was later endorsed by White J (as she then was) in Hall. These decisions are consistent with the view that a power to award costs must be traced to some statutory provision. Here, Unimin does not rely on a power to award costs stemming from a statutory provision but rather as a necessary ingredient ancillary to the courts exercise of an implied power to stay proceedings for an abuse of process. [20] Macrossan CJ in Crowe expressly observed that interstate decisions such as Darcey and O‟Connell v Short (1985) 20 A Crim R 111 to similar effect 14 At [40]; 15 Paragraphs [3]-[5], [13]-[18] submissions for Unimin; 16 McPherson JA dissented on a construction of subsections 88(1) & (3). Davies JA, who agreed with Macrossan CJ, focused on legislative scheme around section 88 JA; -- 8 of 36 -- 9 should not be followed in Queensland17. The other members of the court did not refer to Darcey but did not express disagreement with this statement. I have not been referred to any authorities to contrary effect relating to the laws of Queensland. In fact, in the light of Grassby v The Queen (1989) 168 CLR 1, Wood J of the New South Wales Supreme Court in Director of Public Prosecutions v Boykin18 disagreed with Darcey where he said: The existence of the inherent jurisdiction is no longer unquestionably correct in the light of Grassby, and the decision in Darcey is therefore distinguishable. If I am to assume, in view of the concession, that the learned Magistrate had an implied power to stay the proceedings, for the reasons expressed in Smiles, namely that such a power is an essential attribute of the exercise of the jurisdiction with which the Local Court is vested, it does not inevitably follow that a power to order costs is associated with it. As I have earlier observed, there is no general or inherent power in the Local Court to make costs orders. The question which then follows is whether by virtue of the doctrine of necessity, such a power should be regarded as an essential adjunct to the stay power. The latter power can be seen, at least as highly desirable, so as to protect citizens from abuse of process and from being prosecuted in a way that involves unfairness or oppression. While a power to order costs might provide further protection, and help to relieve hardship in a case where a stay is granted, I do not perceive it to be an “essential” or “really necessary” incident of the exercise of the Court‟s jurisdiction. In substance, the case for its existence is only marginally stronger than the argument for its existence in any case where a prosecution fails. The absence of a general implied power to make costs orders, and the fact that a stay will itself largely redress the hardship suffered by a defendant faced with an abuse of process, leads me to the view that the relevant power to order costs against the DPP does not exist, as an implied power. (emphasis in complainant’s submissions) [21] The Magistrate in Boykin stayed proceedings and ordered the DPP pay costs purportedly made under section 81(1) Justices Act 1902 (NSW). This was rejected by Wood J. as well as concluding there was no implied or inherent power in the Local Court to award costs in favour of a defendant in a successful stay application. 17 [1993] Qd R 57 at 61 line 20; see paras [7] – [11] complainant’s submissions; 18 Unreported decision, 10204 of 1994, 21 June 1994 (Lexis reference: BC9405141 at p 4; para [17] complainant’s submissions; -- 9 of 36 -- 10 [22] Boykin was referred to by Lloyd J in Gleeson. However, among other reasons for his decision, Lloyd J considered himself bound19 by the Court of Appeal in Markisic v Vizza. I note that Boykin was not referred to in Markisic. However, both Gleeson and Markisic were concerned with powers of superior courts, not a Magistrates Court or Local Court. [23] The views expressed by Wood J in Boykin are consistent with the laws of Queensland. In Queensland Fish Board v Bunney (supra) Connolly J who wrote the leading judgement20 said at 303: It must be remembered that there is a well established principle that apart from the inherent jurisdiction of the court of chancery, costs are entirely the creation of statute and there is no common law jurisdiction in tribunals to grant costs …Some of the older decisions suggest that the power to award costs must be conferred in express terms …but the better view would be that the power can be conferred expressly or by necessary implication. Having regard to the principle however, the power must at least clearly appear. The language of paragraph [61(1)(e) Fish Supply Management Act 1972] does not in terms refer to costs at all and it contains no clear indication of an intention to confer the power. (emphasis in complainant’s submissions) [24] Contrary to submissions for Unimin21, Spicer v Carmody22 cited by Connolly J in Queensland Fish Board v Bunney is not authority that there is a power implied from the provisions of the JA to award costs in favour of a defendant on a stay application. Nor is it authority that there is an implied power originating out of necessity on a successful stay application by a defendant for an abuse of process. While Queensland Fish Board v Bunney cited Spicer, that was in the general context of a discussion that a power “can be conferred expressly or by necessary implication” from a statute. [25] Keane JA (as he then was), who wrote the leading judgement in the Queensland Court of Appeal case of Higgins v Comans (2005) A Crim R 56523 made similar remarks to those in Boykin as to whether a power to stay committal proceedings could be implied from the provisions of the JA. The 19 At para [48]; 20 The court was constituted by Wanstall CJ, Lucas and Connolly JJ; 21 At para [16] and footnote 19 submissions for Unimin; 22 (1948) 48 SR (NSW) 348; 23 The other members of the court were McPherson and White JJA; -- 10 of 36 -- 11 Court decided that a Magistrate had no implied power to stay committal proceedings under the JA. Keane JA said at 573: It is not enough to justify the implication urged by the appellant that, perhaps as a matter of economy in the administration of criminal justice, it would be useful if a prosecution, that would probably be stayed at trial, could be halted at the committal stage. In this regard , I would respectfully agree with the observation of Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court [(2005) 152 A Crim R 527 at [45]], in a judgement with which Mason P and Beazley JA agreed, that “what is „reasonably necessary‟ cannot be stretched to encompass what is merely desirable or useful”. Whatever merits that might attach to a power to stay committal proceedings, it cannot be said that such power is reasonably necessary for those proceedings to be carried out. The result is that it is impossible to imply a power of the type contended for by the appellant. [26] It was common ground that there is no express power in this court to award costs in relation to a stay. The question is whether a power is conferred by necessary implication: Grassby v The Queen (1989) 168 CLR 1, 17-18 where Dawson J. said24: It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be “derived by implication from the statutory provisions conferring particular jurisdiction”. (emphasis in complainant’s submissions) [27] The thrust of the complainant’s submissions is that a power to award costs is not implied from the provisions of the Justices Act 1886. The views in Darcey, Markisic and Gleeson are not consistent with the laws of Queensland. In respect of a so called inherent power as opposed to a power implied by statutory provisions, Macrossan CJ also said in Crowe at 61 (lines 3 – 18): Mason CJ pointed out in Latoudis v Casey (1990) 170 CLR 534 at 538, that the old rule was that the Crown neither received nor paid costs in criminal proceedings but courts of summary jurisdiction were given a statutory discretion to award them in certain circumstances. This 24 The question in Grassby was whether a New South Wales Magistrate had the power to stay committal proceedings for an abuse of process. Three judges agreed with Dawson J. Deane J dissented. -- 11 of 36 -- 12 background and principle referred to by Connolly J [in Queensland Fish Board v Bunney], seem sufficient to indicate that Magistrates Courts and justices do not have inherent, non statutory discretion to award costs. It is hard to find an inherent power when these courts and their predecessors exercised a general jurisdiction of the kind now performed by them and did so quite clearly without originally having any power to award costs. The respondents‟ argument that a power should nevertheless be implied should also be rejected. The fact that specific but limited provision is made in the Justices Act for the awarding of costs means that if the statutory provisions which are included are not wide enough to carry a relevant power to award costs then none should be implied to supplement those expressly conferred. (emphasis in complainant’s submissions) [28] Earlier in his judgment Macrossan CJ noted the distinction between “inherent jurisdiction” and “implied jurisdiction” that the former refers to a court of a “particular description” and that no authorising provision is necessary to sustain the existence of inherent jurisdiction25: Grassby (supra) at 16-17 and R v Forbes; ex parte Bevan (1972) 127 CLR 1 at 7. Unlike the Supreme Court, the Magistrates Court does not fall within that description so does not have inherent jurisdiction. [29] On this point, it was submitted for Unimin26 The courts have held that where the enabling statute or rules are silent as to procedural matters, an inferior court has the power to control its procedures and, unless restricted by statute, is entitled to develop its own practice. The JA does not restrict the power to make a stay or award costs in relation to a stay. [30] I agree with the complainant’s submissions that the last sentence carries with it an incorrect premise that there is such a power27 for the reason that the power to award costs is not merely procedural. It must be a creature of statute. If it is suggested there is scope for a power for awarding costs for abuse of process to be implied on the basis that the JA does not restrict that court in any way, I would reject it. The comments made in the cases referred to in Unimin’s submissions are concerned with courts of a particular description e.g. the 25 [1993] Qd R 57 at 60 lines 40 -55; 26 At para [4] submissions for Unimin; 27 At para [24] submissions for the complainant; -- 12 of 36 -- 13 Supreme Court which has inherited the jurisdiction of the Courts of Chancery28. [31] I agree with the complainant’s submissions29 that the Federal Court case of Ward30 does not support the view that there is an implied power in the Magistrates Court to award costs to a defendant on a stay. While Lee J was referring to such a power as essential in some circumstances for due administration of justice and to protect the integrity of the court, he later went on to say31: The power to make an order for the payment of costs in those circumstances may be said to be part of the judicial power vested in the court by the Constitution, not limited to a statutory power to award costs conferred by section 43 [Federal Court of Australia Act 1976] [32] Again, as with Markisic and Gleeson, that refers to superior courts governed by different statutes and being courts of a “particular description” which do not include Magistrates Courts in Queensland. [33] In Doonan v McKay (supra), relied on by Unimin, the Court of Appeal set aside orders made by a Magistrate (confirmed on appeal to the District Court) granting a permanent stay of a complaint alleging charges under the Forestry Act 1959. The matter was remitted for hearing in the Magistrates Court. The Court of Appeal ordered the defendant pay the complainant’s costs in relation to the hearing of the application for a permanent stay in the Magistrates Court assessed on a standard basis under the Justices Act 1886. I agree with the complainant’s submissions that this case does not support the proposition for Unimin that an implied power to stay carries with it the power to award costs to a defendant in relation to that decision32. Rather, it was submitted it supports the view that costs can be awarded to the prosecution against a defendant in an unsuccessful application for a stay but not to a defendant against a prosecution in a successful application for a stay. Section 157 JA 28 Queensland Fish Board v Bunney; ex parte Queensland Fish Board [1979] 301 at 303 cited at [23] above; 29 Para [16] complainant’s submissions; 30 (1999) 163 ALR 149; [1999] FCA 580; 31 At p 152 para [13]; 32 Paras [19] & [20] complainant’s submissions -- 13 of 36 -- 14 provides a broader power to award costs to complainants than to defendants under section 15833. [34] Unimin cited a passage from Spicer v Carmody34 It is to be observed that it is only where no provision for costs is made in the Act by which any cause matter or other proceeding may be brought before the Supreme Court of a Judge thereof that the costs are in the discretion of the Court or Judge. Such provision may be made either expressly or by necessary implication. [35] That case involved two actions in tort in the New South Wales Supreme Court where the plaintiff alleged negligence in a motor vehicle accident against two defendants. At trial the plaintiff succeeded against one defendant and lost against the other. The trial judge concluded that a particular statutory provision (section 11A) applied displacing the general rule on costs provided in another statute so that costs were in his discretion35. Consequently, the trial judge ordered the plaintiff pay the costs of the successful defendant and ordered the unsuccessful defendant pay the plaintiff’s costs as well as the costs the plaintiff was ordered to pay to the successful defendant36. The unsuccessful defendant successfully argued on appeal that the statute of general application was not displaced by section 11A so that he was only liable to pay for the plaintiff’s costs of succeeding on the issue against him. The passage above was simply made in the context of determining whether the general rule on costs was displaced by section 11A for proceedings in the New South Wales Supreme Court. This case does not assist Unimin in its application for costs. I agree with the complainant’s submissions37. [36] I also accept the complainant’s submissions that the power to award costs is not merely procedural. While there is a recognised common law power in Magistrate’s Courts to adjourn38, there is no power at common law to award costs. The authorities cited earlier are to the contrary so that the power to 33 Para 18 (a) & (b) complainant’s submissions 34 (1948) 48 SR (NSW) 348 at 350 (point 6) 35 Section 11A Supreme Court Procedure Act 1900 (NSW); Common Law Procedure Act 1899 (NSW) was the statute of common application unless displaced by section 11A 36 Commonly called a “Bullock Order”: Bullock v London General Omnibus Company [1907] 1 K.B. 264 37 Para [21] complainant’s submissions 38 Boettcher v Boettcher (1948) St R Qd 73 -- 14 of 36 -- 15 award costs in a Magistrates Court must stem from a statutory provision, either expressly or by necessary implication. I find there is no power in the JA, either express or implied, for a Magistrates Court to order costs in favour of a defendant who has successfully applied for a permanent stay of a complaint. [37] Even if, contrary to the above authorities, an inherent or implied power to award costs to a defendant in a successful stay application existed for a Magistrates Court in Queensland, the grounds for exercising that discretionary power would be less compelling in this case on the basis that the class of conduct constituting the abuse of process was making the FA complaint one day outside the limitation period after an assessment by the court as to when the offence came to the complainant’s knowledge as opposed to conduct that was outright mischievous, offensive or reprehensible. Also, the ground upon which Unimin succeeded was discrete not taking up much hearing time compared to all other issues where Unimin failed. [38] Darcey is an example of mischievous conduct. The defendant was opposed to abortions39 and sought to subpoena documents containing personal details of patients, their case histories, referrals and medical examinations, payments made to doctors and receipts from health funds40. In agreeing with the Magistrate Hunt J concluded the subpoena was intended to be used for collateral purposes and said it was “outrageous”. The subpoena documents had no relevance to the defendant proving that he had a lawful excuse for being on the premises of the clinic41. [39] In Wilson v McDougall (1987) 11 NSWLR 241, a child protection case, Newman J accepted the Magistrate’s findings that the applicant departmental officer engaged in what was described as “particularly heinous” conduct which was a “blatant abuse of process”42. She delayed proceedings for tactical reasons, endeavoured to have the parents’ lawyer removed from the case because the lawyer was not supporting her application, raising matters with a 39 [1983] 2 NSWLR 497 at 502 at “D”; 40 [1983] 2 NSWLR 497 at 498 at “F”; 41 Darcey was ultimately acquitted after a trial: see 503 at “A” ; 42 (1987) 11 NSWLR 241 at 243 (point 4) and 245 (point 6); -- 15 of 36 -- 16 doctor with a view to prejudicing the doctor against the family and more. Newman J said this at 245: In so holding43 I wish to make it clear that I do not believe that the inherent power vested in the Children‟s Court does in an ordinary sense provide jurisdiction in a magistrate to make an order for costs. Indeed, even in a case where the proceedings brought were misconceived but not mischievous it would be difficult to see how the court‟s inherent power would extend so far. However, in this case the proceedings and their conduct were, as his Worship found, not only misconceived but also mischievous. It is this latter element which I believe creates a vehicle which enables the court to use its inherent jurisdiction and award costs. [40] I accept the complainant’s submissions that the conduct of the FA prosecution in the present case was proper there being no suggestion of mischievous conduct in the FA proceedings of the kind in Darcey or Wilson44. An example of this is that a copy of the statement of William Gordon which formed the basis of his evidence during the hearing was sent to the solicitors for Unimin under cover of a letter dated 1 November 201145. Determining when an offence comes to the knowledge of a complainant for calculating the limitation period (in this case under section 88(4) Forestry Act 1959) is often a complex exercise and I accept the prosecution litigated a reasonably arguable case here. [41] Consequently, I make the following orders:  Unimin’s application to stay the FA complaint on the ground that it was made one day outside the limitation period is granted.  Unimin’s application for costs in successfully applying for a stay of the FA complaint is refused. Given that conclusion, there is no need to assess the quantum of Unimin’s costs. Complainant Bell’s Application for costs on the IPA & EPA Complaints Liability for costs 43 After referring to the blatant abuse of process, which would bring the administration of justice into disrepute, Newman J said the appropriate remedy to counteract this mischief was to order costs; 44 Para [16] submissions for the complainant; 45 Paras [14] & [15] & Exhibit “LGB-08” affidavit of Lynda Body sworn 24 September 2012; -- 16 of 36 -- 17 [42] The complainant applies under section 157 JA for costs of successfully defending Unimin’s application to stay the IPA and EPA complaints as an abuse of process and for failing to plead essential factual ingredients on the basis of Kirk.46 [43] Section 157 of the Justices Act 1886 (JA) in Part 6 JA47 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. (my emphasis) [44] Relevantly, the current definition of “order” in section 4 JA is as follows48: order includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, [45] It was submitted for the complainant that Unimin had failed on all grounds for the IPA and EPA complaints and that the court should exercise a discretion awarding costs. The power to award costs to a complainant under section 157 JA is not circumscribed as it is for costs in favour of defendants under sections 158 and 158A JA. It was submitted that costs should follow the event in accordance with well established principles49. [46] This is opposed by Unimin on two grounds:  The complainant’s argument on costs is flawed;  The complainant’s application for costs is premature. Complainant’s argument flawed 46 Paras [7] & [12] submissions for complainant dated 7 September 2012; 47 In Division 8 (Costs) of Part 6 (Proceedings in case of simple offences and breaches of duty); 48 Prior to the insertion of section 32 A into the Acts Interpretation Act 1954 by No 30 of 1991, section 4 JA had a preamble to all definitions which included in part “unless the context otherwise indicates or requires”. This was removed as being redundant as new section 32A AIA to same effect applies to all Queensland legislation; 49 Paragraphs [9] to [11] submissions for complainant dated 7 September 2012; -- 17 of 36 -- 18 [47] Unimin submits that the complainant’s argument is flawed because, after having regard to the overall structure of Part 6 JA entitled “Proceedings in case of simple offences and breaches of duty”, the power contemplated by section 157 in Division 8 Part 6 JA is for a “final order resolving the complaint”50. As the IPA and EPA complaints remain on foot there is no power to award costs under section 157. [48] Other Divisions in Part 6 were referred to in support of the view that section 157 deals only with final disposal of complaints. For example, sections 145(2) and 146(1) in Division 3 entitled “Hearing” provide: 145 Defendant to be asked to plead (1) ….. (2) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law. (my emphasis) 146 Where defendant pleads not guilty (1) If the defendant pleads not guilty then the court may— (a) proceed to hear the complainant and the complainant‟s witnesses, and the defendant and the defendant‟s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant‟s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or (emphasis in Unimin’s submissions) [49] Also, Division 4 Part 6 deals with dismissal of complaints and Division 5 entitled “convictions and orders” is concerned with the preparation of formal convictions and orders in the form of a verdict and judgment record. [50] The submission continues that the definition of “order” in section 4 JA should not be read in isolation and its true meaning should be ascertained from the statutory context. Some support for this, it was submitted, is found in the heading to Part 6 JA “Proceedings in case of simple offences and breaches of duty” because it is a part of the JA: section 14(1) Acts Interpretation Act 50 Para [4] submissions for Unimin; -- 18 of 36 -- 19 1954.51 In looking at the statutory context, it was submitted, the reference to “order” in section 157 is not a reference to the definition of “order” in section 4. [51] A number of authorities were also cited to support the view that the meaning of “order” should be considered in the context of Part 6: Schneider v Curtis [1967] Qd R 300; Owen v Cannavan [1995] QCA 324; Paulger v Hall [2002] QCA 353; Coulter v Ryan [2006] QCA 567 and Mathews v Cabrera [2010] QCA 300. [52] The submission was developed that having regard to the definitions of “summary conviction” and “breach of duty” in section 4 JA, section 157 refers to the power to award costs only to a complainant upon “summary conviction” for a simple offence or for an “order” finally disposing of a complaint alleging a “breach of duty”. In other words, the reference to “orders” in section 157 is only a reference to a complaint alleging a breach of duty, not, as in this case, a simple offence52. [53] For the following reasons, I reject those submissions. [54] It is necessary to consider some legislative history of the JA. The definition of “order” in section 4 JA as originally enacted provided: „Order‟ means as order made upon a complaint of a breach of duty [55] The phrase “breach of duty” is currently defined in section 4: “breach of duty” means any act or omission (not being a simple offence or a non-payment of a mere debt) on complaint of which a Magistrates Court may make an order on any person for the payment of money or for doing or refraining from doing any other act [56] Also, “Summary conviction” in section 157 is currently defined in section 4: “summary conviction or conviction” means a conviction by a Magistrates Court for a simple offence 51 Para [11] submissions for Unimin; 52 Para [18] submissions for Unimin; -- 19 of 36 -- 20 [57] The original definition of “order” was substituted in 194953 in a form taken from section 4 of the Justices Act 1887 (Victoria)54 the first part of which for relevant purposes is predominantly in the same form as it is today55. Relevantly also, section 209 JA in Part 9 JA56 was substituted by the 1949 Act taken from the Justices Act 1928 (Victoria) creating a new mode of appeal to the then Full Court of Queensland called “order to review”57 which has since been abolished in 199758. The 1949 amendments also created a new right of appeal to a judge of the Supreme Court under section 222 JA. Section 222 JA was substantially amended in 1997 largely into its present form. It should also be noted that the District Court was abolished in 1921 and re-established in 195959. During that intervening period the Supreme Court exercised a supervisory role over Magistrates Courts. When the District Court was re- established, section 222 appeals were redirected to the District Court. [58] Section 209 (1) introduced by the 1949 Act provided in part: When any person who feels aggrieved as complainant, defendant, or otherwise by any conviction or order of any justices or justice or against whom any warrant has been issued by any justices or justice … (my emphasis) [59] This history is important to understand comments made by Gibbs J (as he then was) in Schneider v Curtis which, in my view, resolves this matter. It is clear, as submitted for the prosecution, while the original definition of “order” may have contemplated orders for breach of duty only, the JA has been significantly amended since then so as to change that60. 53 The Justices Acts Amendment Act of 1949, section 2; 54 The Justices Acts (Queensland), Kennedy Allen, 3 rd edition, 1956, at page 9; 55 Referred to in submissions for prosecution – see transcript 1-51 lines 28 to 38 (28 September 2012); 56 Part 9 entitled “Appeals from the decisions of justices” replaced former Part 9; Section 209 was in Division 1 that was repealed in 1997; 57 Fryberg J gives a detailed history of appeals under the JA in his dissenting judgment in Coulter v Ryan [2006] QCA 567 at 11 et seq. with which the other members of the Court of Appeal did not disagree. 58 Courts Reform Amendment Act 1997 (No 38 of 1997), section 61(1); 59 See Supreme Court Act 1921 and the District Courts Act 1958 respectively. I refer readers to Fryberg J’s detailed analysis of the history in Coulter v Ryan; 60 Transcript 1-51 lines 38 to 60; 1-52 lines 1 to 14 (28 September 2012); -- 20 of 36 -- 21 [60] The new definition of “order” introduced in 1949 was said to be “far more comprehensive than the definition that it replaced” cited at [54] above61. While Kennedy and Allen acknowledged generally speaking that “order” means something in the nature of a final judgment, after citing Burnham v Solomon [1946] V.L.R. 527, the authors went on to say: ... term [ie „order‟] is not limited to orders which finally determine a cause or matter; that the words of the corresponding definition and the wide powers given to the appellate court on the return of an order nisi to review … suggest that the legislature intended to subject to the control of the Supreme Court a great deal more than the final adjudications of a court of petty sessions exercising its judicial functions; that it includes orders that are interlocutory in character and relate only to matters of procedure. ( my emphasis) [61] In Schneider v Curtis after the close of the prosecution case for a summary offence instituted by complaint under JA, the defendant made a no case to answer submission that was rejected by the Magistrate. The defendant was granted an adjournment to enable an appeal under section 222 JA. The District Court stated a case for the then Full Court on the question whether the Magistrate’s ruling was an “order” within sections 4 and/or 222 JA. [62] Gibbs J (as he then was) wrote the leading judgment in Schneider. He cited the section 4 JA definition of “order” as it applied then and which is identical to the current definition as follows: “order” includes an order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it ….. [63] As Gibbs J observed, that definition was very similar to the definition of “order” in section 3 the Justices Act 1958 (Victoria) in agreeing with the Victorian Full Court decision of Byrne v Baker (1964) V.L.R. 443 that a ruling of a case to answer was an “order” within the meaning of section 4 JA. Gibbs J said at 304 (point 5), the other judges concurring62: 61 The Justices Acts (Queensland), Kennedy Allen, 3 rd edition, 1956, at page 9; 62 See also Fryberg J’s summary of that at para [42] Coulter v Ryan; -- 21 of 36 -- 22 A decision of the Full Court of Victoria, although not binding on this court, is entitled to great authority and if the question we had to decide was whether an appeal by way of order to review under s 209 lies from a magistrate‟s ruling that there was a case to answer, I would be inclined to think that we should follow the Victorian decision …. [64] That is consistent with the view that unless restricted in some other way, the section 4 definition of “order” applies throughout the JA. “Order” in the phrase “any conviction or order” in former section 209 is not modified as with “order” in the phrase “In all cases of summary convictions and orders” in section 157. “Order” is wide ranging and includes orders that do not finally dispose of a complaint. I note section 32AA Acts Interpretation Act 1954 provides “A definition in or applying to an Act applies to the entire Act”. Although this might be modified expressly or by necessary implication from the statute itself, I am not satisfied that it is. Part 6 JA deals with a wide range of subject matter. The examples cited for Unimin do not clearly manifest a legislative intention to modify “order” in section 157. It could easily have done so by creating special definitions for that Division as it has elsewhere63. [65] However, the question in Schneider v Curtis turned on the wording in section 222(1) JA which, unlike section 209 JA, expressly modifies the type of order giving a right of appeal. It relevantly provided: If a person feels aggrieved as complaint, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty … (my emphasis) [66] Gibbs J concluded at 306 that: In my opinion the legislature did not intend that the wide powers of control over proceedings of magistrates which this court [Full Court] may exercise by way of order to review should also be available on an appeal under s 222. Such an appeal in my opinion only lies from an order which disposes of a complaint for example by dismissing it, or by entering a conviction and imposing a penalty. 63 For example, section 4 definition of “defendant” gives two meanings – one of general application and one applicable to section 23A; see other examples in section 4 of directing the reader to specific Divisions & Parts of the JA for the definition applicable to that Division or Part; -- 22 of 36 -- 23 [67] The passage that immediately follows relied on by Unimin does not advance their case because “order” in section 222 has been modified to an order “upon a complaint”. The passage continues: It does not lie from a Magistrate‟s ruling, given at the close of the complainant‟s case, that there is a case for the defendant to answer, for although such a ruling may amount to a refusal of an application, and may be regarded as an order within the meaning of s 4 [JA], it is made upon an incidental application during the hearing of the complaint and is not as order made upon the complaint. (emphasis in Unimin’s submissions64) [68] It should also be noted that section 222 refers to “order … upon a complaint” for “an offence or breach of duty” (my emphasis). The reference to “order” encompasses complaints for offences as well as for breaches of duty. Therefore, this would appear to be inconsistent with submissions for Unimin that “order” in section 157 must only refer to a complaint for a “breach of duty” and not for an offence. There is nothing in the definitions of “breach of duty” or “summary conviction” or anywhere else to restrict the section 4 definition of “order” to a final determination of a specific class in section 157 as it does in section 222. [69] Section 157 cited above refers to “orders” without modification. When section 209 was repealed in 1997, no consequential amendments were made to section 157. It remained as it was beforehand. Unlike section 222, there is no express modification to “order” in section 157 limiting the class of order to which that section applies nor can one be implied from the other references in Part 6 to which submissions for Unimin referred. The same principles apply to section 159 JA in Division 8 (Costs) Part 6 JA where “order” is not limited in any way: The sum so allowed for costs shall in all cases be specified in the conviction or order or order for dismissal, or order striking out a complaint for want of jurisdiction. (my emphasis) [70] The analysis by Gibbs J’s adopted by the other members of the Full Court in Schneider v Curtis that “order” is not restricted to final determinations for the purposes of former section 209, remains valid and equally applies to “order” 64 Para [9] submissions for Unimin; -- 23 of 36 -- 24 in section 157 in my opinion. I conclude that “order” in section 157 is not confined to the final disposal of a complaint alleging an offence. It applies to applications such as those envisaged in the definition of “order”. [71] The other Court of Appeal authorities of Owen v Cannavan65, Paulger v Hall66, Coulter v Ryan67 and Mathews v Cabrera68 all followed Schneider v Curtis that an appeal from an order not disposing of a complaint cannot be made under section 222 JA to the District Court. They do not take Unimin’s submissions any further. For example, the judgment of the court in Owen v Cannavan69 expressed it this way: The Full Court [in Schneider v Curtis] had regard to the definition of “order” in s 4 and to the terms of s 222. As a matter of construction it confined the application of s 222 to an order “made upon complaint” and held that the section did not give a right of appeal from a decision or ruling made on an incidental application during the hearing of a complaint, even if that decision or ruling came within the definition of “order” because there was no order made “upon a complaint”, that concept being held to be referable to the determination of a complaint. (my emphasis) [72] I conclude that the complainant’s application for costs under section 157 JA is not fundamentally flawed. [73] In view of the above, I also conclude that an order dismissing Unimin’s application for costs on the FA complaint is an order within section 157 so that it is open to consider granting the prosecution its costs of defending Unimin’s application for costs in relation to the FA complaint in addition to considering the prosecution’s application for the costs on the IPA and EPA complaints because Unimin’s stay application was unsuccessful. Complainant’s application for costs premature 65 A refusal to transfer a summary hearing from Brisbane to Gympie; not appealable under s 222; 66 A refusal to allow amendment to a charge and subsequent dismissal of a charge; It was held that the complainant could appeal against the dismissal which came about because of the refusal to amend; 67 After granting prosecution an adjournment, costs to the defendant were refused; by majority, not appealable under s 222; 68 After granting prosecution an adjournment & not dismissing the charge at that time; not capable of appeal under s 222 JA; 69 [1995] QCA 324 at 4 per Davies & Pincus JJA, and Moynihan J (as he then was); -- 24 of 36 -- 25 [74] The basis for this ground is that “there is no finality to the [Unimin’s] application” because I concluded in [2012] QMC 16 that final resolution of a number of factual matters should be determined after a trial. Therefore, awarding costs to the complainant at this time is premature and may be unduly burdensome for the court should it discover, after the full hearing, that Unimin’s application was well founded70. [75] Unimin brought these applications relying on a multitude of grounds. This is clearly evident from my reasons for judgment reported at [2012] QMC 16. Unimin bore the onus of proving “abuse of process” sufficient for the court to conclude that there were “exceptional circumstances” to refrain from exercising jurisdiction by granting a permanent stay. It failed. [76] A major part of this application was Unimin’s unsuccessful sub-application to force the prosecution to call its witnesses to be available for cross examination in the abuse of process application: see [2011] QMC 24. This was not a matter for trial. Similar remarks can be made in relation to the application based on Kirk: see [2010] QMC 1. Even various aspects of the “abuse of process” application will not be developed at trial. For example, the decision to issue the IPA and EPA complaints and the making of them before the Justice of the Peace and the issuing of the summonses by the Justice of the Peace. [77] Considerable effort was expended in relation to these aspects of the application which do not depend on what happens at trial. This far outweighs the examples given in Unimin’s submissions at paragraph [19] that a decision on costs should await the outcome of findings of fact after a trial. [78] Further, the complaints were made on 1 December 2009 and returnable at the Cleveland Magistrates Court in January 2010. The first limb of the application based on Kirk came before me on 7 September 2010 and thereafter on later dates. The matter has been litigated extensively before coming to trial. It has been active for a long time. 70 Paragraphs [19] & [20] submissions for Unimin; -- 25 of 36 -- 26 [79] The complainant’s application for costs is not premature. Quantum of costs [80] The relevant provisions for costs in favour of a prosecution in Division 8 Part 6 JA are as follows: 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. (my emphasis) 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. (me emphasis) 159 The sum allowed for costs to be specified in the conviction or order The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction. [81] Section 266 JA provides that the Governor in Council may make regulations regarding costs. Regulation 1871 of the Justices Regulation 2004 provides relevantly for a scale of costs applicable to Division 8 Part 6 JA found in Schedule 2 thereof. Schedule 2 relevantly provides: Part 1 General 1 Scale sets out amounts up to which costs may be allowed This scale sets out— (a) the only items for which costs may be allowed for part 6, division 8 and part 9, division 1 of the Act; and (b) the amount up to which costs may be allowed for each item. Note— 71 In Part 6 (Costs and fees); -- 26 of 36 -- 27 A higher amount for costs may be allowed under section 158B(2) or 232A(2) of the Act. 2 Item of costs covers all legal professional work An item in part 2 covers all legal professional work, even if the work is done by more than 1 lawyer. 3 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….. Part 2 Amounts up to which costs may be allowed for legal professional work Work for hearing of complaint up to and including day 1 1 Instructions and preparation for the hearing, including attendance on day 1 of the hearing. . . . . . . up to $1500.00 After day 1 2 For each day of the hearing after day 1 . . . . . . . . . . . up to $875.00 Other court attendances 3 Court attendance, other than on the hearing of the complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . up to $250.00 [82] Provided I am satisfied of the “special difficulty, complexity or importance” of the matter in terms of section 158B(2) JA, it is not contested that section 158B(2) is invoked so that it is open for costs to be awarded above the scale72. Having been seized of the matter from the beginning, I am so satisfied. There was a large volume of material with hearing days spread over the period September 2010 to February 2012 resulting in three reserved judgments. It appears to be a matter of substantial public importance as well as important for Unimin itself. [83] Nevertheless the quantum of costs awarded must be “just and reasonable”. The principles in determining this have been conveniently summarised by Shanahan DCJ in Hickey v Crime and Misconduct Commission, File 2868 of 2006 (19 May 2008)73 at paras [42] – [44]: 72 Transcript 1-57 lines 9 to 40 (28 September 2012); 73 In that case section 158 applied. A successful defendant was seeking costs where there is the added requirement of “proper” in section 158A; -- 27 of 36 -- 28 [42] The respondent submits that the scale should be used as a guide in arriving at a quantum of costs if I am satisfied it is just (and reasonable, in relation to the costs of the summary trial) to allow costs above the scale. [43] 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. No authorities have been placed before me where solicitor/client costs or indemnity costs have been awarded in these circumstances. [44] The costs to be awarded must be …”just and reasonable” in relation to the summary trial. The amounts to be awarded must be made bearing in mind the policy of the legislation. The scale in the regulation is a clear indication of that policy as it bears little relation to present day economics. However, to my mind, the legislative intent is clear. [84] His Honour concluded that a multiple of three times the scale would be appropriate for the solicitor’s preparation as well as costs of senior counsel at a daily rate provided by the Federal Court scale: at para [48]. [85] Earlier, McGill DCJ in Durrant v Gardner [2000] QDC 19874, a case under section 157, came to a similar view at [45] & [46] that the “prescribed scale should be used as a guide to the proper exercise of the discretion” to award costs; see also Santosa v Guerin [2007] QDC 335 per Wall DCJ at p 14. [86] In Hickey the defendant was seeking costs under sections 158 & 158A. While the reasons given for that are in relation to the fettering of bringing prosecutions in fear of exposure to large costs orders if unsuccessful, in my opinion it is not unreasonable to say that those principles apply to a prosecution seeking costs under section 157. [87] The parties provided material to arrive at an assessment of the quantum of costs and oral evidence was also taken. 74 In that case His Honour found that section 158B(2) did not apply; Durant was cited with approval by Jones DCJ in Drew v Bundaberg Regional Council [2013] QDC 1 at [55], a section 157 & 158B case where costs were awarded to the prosecution above the scale after a trial; -- 28 of 36 -- 29 [88] For the prosecution, three affidavits by Lynda Body75, Principal Lawyer in the Litigation unit of the Department of Environment and Heritage Protection, and an affidavit of Kerri Mellifont SC76 explained the initial process. [89] Ms Body sent the Litigation Unit’s files to the costs assessor, Mr Garrett of Hickey and Garrett Costs Assessors, for assessment. She noted that such an assessment would underestimate the work done as the departmental files did not record all telephone conversations, conferences and time spent drafting documents, compiling folders for counsel. [90] Prior to Ms Body attending Ms Mellifont’s chambers, Ms Mellifont had reviewed the material she had been briefed with in relation to the application, and quarantined material relevant to the FA complaint taking “a very conservative approach”77 to remove anything remotely connected with the FA complaint. [91] At a meeting with Ms Body and Mr Garrett, Ms Mellifont said Mr Garrett was shown the excised FA material. He said that this should be excluded from the costs assessment in respect of the IPA and EPA complaints. Mr Garrett then examined the material remaining for the IPA and EPA complaints. Ms Body conducted an analysis of the transcript, submissions and the judgments in the pre-trial applications concluding that 8.7% referred to the FA complaint. This accorded with Ms Mellifont’s view of the time spent on the FA complaint as opposed to all other matters. Taking a conservative approach, Mr Garrett was instructed to calculate a “10% reduction in his assessment … for those categories of costs where the IPA, EPA and [FA] were not able to be precisely discerned” from the files from which Ms Mellifont had already excised the FA material she identified78. [92] In his first affidavit79 Mr Garrett, an experienced costs assessor, explained the methodology he adopted. After Ms Mellifont’s excised all documents from the file relating to the FA matter, Mr Garrett considered the balance of that file 75 Sworn 7, 24 & 27 September 2012 repsectively; 76 Sworn 7 September 2012; 77 At para [4]; 78 At para [6] Ms Mellifont’s affidavit; 79 Sworn 7 September 2012; -- 29 of 36 -- 30 and prepared a short form assessment80. He assessed costs on a standard basis using the Supreme Court Scale and not the Federal Court Scale as that latter was significantly higher. In doing so he went through the briefs to gauge apportionment of costs and to ascertain correct folio counts for perusal of files. He assessed professional fees and outlays with a reduction of the 10% to reflect the 10% on the FA matter. This is a further reduction after Ms Mellifont had undertaken her excision exercise. He assessed counsel’s fees reduced by 10% to reflect what he thought would be recoverable on a standard basis. It is not disputed that $7000 per day for senior counsel and $4,500 per day for junior counsel would be allowed and that the amounts claimed for counsel here come under those figures81. Mr Garrett’s assessments are exclusive of GST. Later, he was asked to deduct from his assessment amounts claimed in respect of the complainant’s summonses to witnesses and to add costs of transcripts ($2,506.75)82. [93] Mr Garrett’s assessment as amended was $65,984.58 (total professional costs) plus $168,057 (total outlays including counsel’s fees and miscellaneous expenses). [94] It was submitted for the prosecution that the approach by Shanahan DCJ in Hickey should be adopted. The amount of $168,057 (total outlays) assessed on a standard basis should be allowed as recoverable. Then, in having regard to the scale under the Justice Regulation 2004, solicitor’s fees are to be calculated by multiplying the scale amount by three. Ms Body has calculated an amount of $10,500 for all appearances based on the scale83. Three times that amount comes to $31,500. Thus, the prosecution claims the total amount of $199,55784 in successfully defending Unimin’s application to stay the IPA and EPA complaints. 80 Para 22 & Exhibit “C” affidavit of Mr Garrett sworn 7 September 2012; 81 Transcript 1-58 lines 21 to 26) & 1-62 lines 14 to 26 (28 September 2012); 82 Para [6] & Exhibit “IAG2” Affidavit of Mr Garrett sworn 25 September 2012; 83 Para [38] affidavit of Ms Body sworn 7 September 2012; 84 $168,057 + $31,500 = $199,557; -- 30 of 36 -- 31 [95] On the other hand, Unimin has provided affidavits from Mr Reynolds, a solicitor employed for Sparke Helmore and Mr Kerr85, also an experienced costs assessor. Ms Reynolds said all three complaints form one file with that firm. A computer program “elite” is used by the firm to record timelines of work performed by solicitors. Attached to her affidavit is a spreadsheet comprised of extracts from “elite” showing dates the work was performed, a summary of the tasks performed, time spent completing the tasks and the amount the firm charged its client to perform the tasks86. [96] Mr Kerr adopted the approach taken in applications for security for costs in the Supreme and District Courts in estimating the standard costs by claiming a percentage of the solicitor and client costs incurred and “an amount likely to represent the recoverable standard costs for professional fees and outlays”. He reduced the figure of $627,243.81 provided by Ms Reynolds in her affidavit by 50% to $313,621.9087. It appears he did not consider the actual file but only that information provided in Ms Reynold’s affidavit. [97] He then embarked on an exercise of attributing costs to the FA complaint by reducing the $313,621.90 by two thirds (2/3) on the basis that there were three complaints and one had been successfully stayed. That figure came to $104,540.63. So, I take it the balance of $209,081.27 is referrable to the IPA and EPA complaints based on that method. [98] Another costs assessor, Mr Michael Morgan, provided an affidavit in support of Unimin’s submissions on costs88. He disagrees with the prosecution’s method of calculating costs. Nevertheless, he said he undertook the exercise of calculating costs based on the prosecution’s method using the Supreme Court Scale. He calculated standard costs for Unimin for all matters for the period 4 June 2010 to 31 August 2012 of $933,127.7689. He then adopted Mr Kerr’s method of reducing that amount by one third on the same basis giving figure of $311,042.58. 85 Sworn 7 September 2012 &4 September 2012 respectively; 86 Paras [7] to [9] & Exhibit “KR-001” affidavit of Kara Reynolds sworn 7 Septembe r2012; 87 Paras [14] & [15]; 88 Sworn 25 September 2012; 89 Paras [4] to [6] & Exhibit “MM001” affidavit of Michael Morgan; -- 31 of 36 -- 32 [99] Mr Graham Robinson, a practicing barrister and an expert on the law of costs was briefed to critique these assessments90. [100] In respect of the spreadsheet of costs exhibited to Ms Reynolds affidavit, Mr Robinson said there is no information that would enable a costs assessor to determine how much of this work related to the FA complaint. He referred to the principle that a party cannot profit from litigation91 and that if Unimin was billed less than one third for the FA complaint, there is potential for that principle to be breached. Further, separate files should have been created for each proceeding so that costs for each could be readily identified92. [101] Also no distinction has been made between professional fees and disbursements. Normally, a disbursement would be allowed in full e.g. counsel’s fees. He said it would be quite wrong, for example, to adopt Mr Kerr’s method of taking 50% of counsel’s fees and then take one third for the FA complaint. Mr Robinson strongly disagrees with the method adopted by Mr Kerr93. [102] He agreed with Mr Kerr that the amount allowed on a standard basis is less than that charged to the client where he adopts a 50% reduction. However, he said Mr Kerr’s explanation is incomplete. Sufficient information has to be provided to enable an assessor to determine what is “just and reasonable”. He said Mr Kerr has left out an intermediate step of converting hours charged to the scale rate before effecting the 50% reduction. Mr Robinson noted that the hourly rates in Ms Reynold’s affidavit are not reduced to the scale rate94. [103] Turning to the prosecution’s method Mr Robinson said Mr Garrett produced what is known as a short form assessment. This lacks transparency compared to a fully itemised assessment and one must rely on the skill and integrity of the costs assessor preparing the assessment. However, the short form assessment is frequently used by insurance companies in personal injury cases by assessors they nominate. Mr Robinson said Hickey and Garret is one of the 90 Affidavit of Graham Robinson sworn 25 September 2005; he also gave oral evidence; 91 Gundry v Sainsbury [1910] 1 KB 645 at 649 per Cozens-Hardy MR; 92 Paras [13] to [15] & [21(i)]; 93 Para [16]; 94 Paras [17] to [21]; -- 32 of 36 -- 33 few firms from which insurers will accept short from assessments. Fully itemised assessments are far more costly. [104] Mr Robinson levelled some criticism about the method of counting the pages in transcripts etc. to arrive at a proportion relating to the FA complaint but noted an increased discount of 10% over Ms Body’s 8.7%. Mr Robinson otherwise agreed with Mr Garrett’s approach in examining disbursements on an item by item basis turning his mind as to whether they should be allowed and that Mr Garrett had adopted a scale that was conservative in relation to counsel’s fees. [105] The criticism by Mr Robinson that disbursement costs associated with witnesses has been addressed by the prosecution since. They have been removed95. [106] Mr Garrett also criticises Mr Kerr’s method in a subsequent affidavit96. For example, Mr Kerr’s assessment does not say if GST has been excluded and that the “security for costs” approach is not adopted on a costs assessment for costs already incurred. That approach usually applies early in proceedings before they are incurred. [107] Both Mr Robinson and Mr Garrett were critical of Mr Morgan’s assessment. I do not intend to canvass these in detail. It basically adopts the same method as Mr Kerr in dividing the total by three to arrive at a figure for the FA complaint. Further, there are no particulars of counsel’s fees paid by Unimin. They appear to have been paid in full. Mr Robinson noted the significant disparity in counsel’s fees paid by Unimin compared to those paid by the complainants which may indicate that either some work undertaken by counsel for Unimin would not be allowable on a standard basis of assessment or the rates charged would need to be reduced or both. [108] In considering what costs are “just and reasonable”, I bear in mind that costs are not a punishment but an indemnity to the party who succeeded97. Wylie 95 Affidavit of Mr Garrett sworn 25 September 20012 at [6]; 96 Sworn 25 September 2012; 97 See for example Latoudis v Casey (1990) 170 C.L.R. 534 at 543 per Mason CJ.; -- 33 of 36 -- 34 DCJ said in Keating v Kneipp (1990), unreported No 28 of 1989 at 1298 that “As an indemnity, party and party costs may not wholly reimburse a party for they refer only to such costs as have been reasonably, properly and necessarily incurred”. I also bear in mind the general principles for assessing costs without a full taxation including the desirability of avoiding expense, delay and aggravation involved in protracted litigation on costs; that the court applies a much broader brush; that in awarding costs the court should be confident that the approach taken to the estimate of costs is logical, fair and reasonable; that the awarding of costs involves the exercise of a discretion in assessing costs necessary on a party and party basis to secure adequate representation: Seven Network Limited v News Limited [2007] FCA 2059 at [25] per Sackville J99. [109] I do not accept Unimin’s submissions that the complainant should have prepared a full itemised bill of costs and that a failure to do so prevents this court from “fulfilling its role in assessing whether individual items were reasonable and necessary”100. In Keating, a section 158 case, Wylie DCJ noted that the Magistrate did not ask for any details of actual costs, charges and expenses before awarding $300 costs to the defendant without giving reasons giving the impression the Magistrate had “plucked the figure out of the air”101. That scenario hardly applies here. I have the benefit of expert evidence on the quantum of costs and, while acknowledging that short form assessments are not perfect, I have confidence in relying on the skill and judgment of Mr Garrett. [110] Having regard to the expert evidence, I accept the method adopted by the prosecution as being more acceptable. I particularly do not agree with a reduction of one third to reflect the work done on the FA complaint. It was a relatively minor issue in the whole scheme of things. Short form assessments 98 A useful summary of Keating v Kneipp is in Durrant v Gardiner [2000] QDC 198 at [37] onwards; 99 Although that case was concerned with “gross sum” costs in the Federal Court Rules, his Honour cited a number of authorities which reflects some general observations about costs in the absence of a full taxation; Mr Garrett also referred to this case at [1 (c)] of his affidavit sworn 25 September2012 to support his view that consideration must be given to hourly rates with a reduction using the appropriate court scale and that this was not done by Mr Kerr; . 100 At para [25] to [27] Unimin’s submissions; 101 Keating v Kneipp at 19 (point 4), 21 (point 5) & 22 (point 8); -- 34 of 36 -- 35 have their inadequacies but on the other side of the coin they are less expensive. I am satisfied that Mr Garrett had exercised judgment as a competent costs assessor in undertaking the task given to him. I accept that the costs assessed by him are just and reasonable in this case which was lengthy and complex. [111] Accordingly, I would allow $168,057 for disbursements and outlays. In assessing the solicitor’s costs referable to the scale above, the $31,500 is generally attributable to appearances for all three complaints from the start with the exception of the Kirk hearing. While Unimin succeeded in the FA complaint being stayed, the many court appearances would have been necessary in any event for the IPA and EPA complaints. On that basis I would also allow those costs in full i.e. $31,500. The total comes to $199,557. [112] The prosecution also seeks costs of successfully defending Unimin’s application for costs on the FA complaint and costs of applying for costs on the IPA and EPA complaints. [113] In his third affidavit102 Mr Garrett provided an anticipated assessment of the prosecution’s costs on a standard basis for the preparation and hearing of the costs applications on 28 September 2012. He used the same methodology as for the primary stay application. He allowed counsel’s fees with some disallowances set out in the exhibit to his affidavit. These are as follows: Mr Glynn - $19,750; Ms Mellifont - $27005; costs of Hickey and Garret - $1200; postage - $50 and Mr Robinson - $4,500. This totals $52,505. [114] In assessing the solicitor’s costs with reference to the scale under the Justice Regulation 2004 as in Hickey, this comes to $2,625 i.e. $875 multiplied by 3. [115] As the prosecution has succeeded on all arguments in the costs application, it claims the total of $55,130 i.e. $52,505 + $2,625. The hearing of the costs application was heard in Warwick and took several hours. It appears from Mr Garrett’s short form assessment that preparation for the costs application was quite labour intensive. Ms Mellifont also gave oral evidence. In her 102 Sworn 27 September 2012; -- 35 of 36 -- 36 affidavit103 Ms Body gave an account of exchanges between herself and solicitors for Unimin on the question of costs. There appeared to be a misunderstanding at first as to whether to avoid the costs of an assessor and which scale was to apply in the event of an agreement. Ms Reynolds had made an offer on 22 August 2012 that required clarification. On 24 August 2012 Ms Reynolds said in an email that they would be getting costs assessed. Ms Body took it from that that she had changed her position. Later on 24 August 2012 Ms Body emailed Ms Reynolds inviting her to put any further proposals to the Department. None were forthcoming. A letter dated 18 September 2012 was sent by email from the Department to solicitors for Unimin inviting a resolution of the question of costs to avoid the expense of a hearing listed for 28 September 2012104. There is no evidence that any response was received. In my view, in the circumstances of this case, that amount is just and reasonable. [116] Consequently, I make the following orders having regard to section 159 JA:  Unimin’s application to stay the IPA & EPA complaints is refused.  Pursuant to section 157 JA I order Unimin pay the prosecution its costs of successfully defending the stay application for the IPA & EPA complaints in the sum of $199,557.  Pursuant to section 157 I order Unimin pay the prosecution its costs of successfully defending Unimin’s application for costs on the FA complaint and for successfully applying for costs of the IPA and EPA complaints in the sum of $55,130. 103 Sworn 24 September 2012; 104 Para [23] & Exhibit “LGB-10” affidavit of Ms Body sworn 24 September 2012; -- 36 of 36 --