Besgrove v Larson & Anor [2001] QDC 144

DISTRICT COURT OF QUEENSLAND CITATION: Besgrove v. Larson [2001] QDC 144 PARTIES: KEITH AND BARBARA BESGROVE (Appellants) v. SUSAN AND ROBERT LARSON (Respondents) FILE NO/S: Appeal 4 of 2000 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Hervey Bay DELIVERED ON: 21 June 2001 DELIVERED AT: Brisbane HEARING DATE: 4 May 2001 JUDGE: McGill DCJ ORDER: Appeal dismissed CATCHWORDS: Laidlaw v. Hulett [1998] 1 Qd.R. 45 - followed Turner v. Randall ex parte Randall [1988] 1 Qd.R. 726 - followed Latoudis v. Casey (1990) 170 CLR 534 - considered Oshlack v. Richmond River Council (1998) 72 ALJR 578 – considered Donald Campbell and Co v. Pollak [1927] AC 732 - applied Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 - cited Crowe v. Bennett, ex parte Bennett [1993] 1 Qd.R. 57 - cited Phillips v. Morris [1999] 1 Qd.R. 89 - cited Queensland Fish Board v. Bunney [1979] Qd.R. 301 – cited COUNSEL: - SOLICITORS: J Milburn of Milburn Guttridge Lawyers for the appellants The female respondent appeared in person [1] This is an appeal pursuant to s.222 of the Justices Act 1886 the decision of a magistrate on 29 August 2000 not to order the complainants to pay the defendants’ costs of two complaints which had been withdrawn by the complainant on that day. The magistrate gave short ex tempore reasons in which he dealt with the question of costs by noting that under s.158 of that Act he had an unfettered discretion and said that there were special circumstances attaching to the proceedings and that he did not believe it would be just or equitable to award costs to the appellants. As a result he left the parties to bear their own costs. [2] One feature of the proceedings which was special is that the complaints had been brought under the Peace and Good Behaviour Act 1982. Proceedings under that -- 1 of 10 -- 2 Act are unusual in that, although by s.8 of that Act the procedure to be adopted is that of complaint and summons under the Justices Act, they are in truth civil proceedings rather than criminal: Laidlaw v. Hulett [1998] 2 Qd.R. 45. As was pointed out there, a complainant under the Act is not in respect of any offence; rather the purpose of the procedure under the Act is to achieve an order of the court requiring a particular person to keep the peace and be of good behaviour, so that contravention of that order constitutes an offence under s.10 of that Act. The position seems to me to be analogous to proceedings under the Domestic Violence (Family Protection) Act 1989. [3] It was submitted, and I accept, that the effect of s.8 is that the procedures under the Justices Act are made available, including that part of the Act which deals with the question of costs. Section 158 provides a power to order costs in circumstances where a complaint is dismissed. Costs are a creation of statute and there is no power to make an order for costs unless such a power is expressly or by necessary implication conferred by a statute: Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 at 488; Crowe v. Bennett, ex parte Bennett [1993] 1 Qd.R. 57 at 62; Phillips v. Morris [1999] 1 Qd.R. 89; Queensland Fish Board v. Bunney [1979] Qd.R. 301 at 303. In my opinion the only relevant power is that found in s.158 of the Justices Act. There does not appear to be any other source of power to make a costs order in such circumstances; there is no power to make an order for costs conferred expressly by the Peace and Good Behaviour Act. [4] This appeal has been mentioned from time to time, but a hearing date had not been fixed before the matter was mentioned before me on 1 May, when the female respondent appeared in person and the appellants were legally represented. At that stage I did not appreciate that the female respondent was not appearing on behalf of both respondents, and fixed the hearing for the morning of 4 May without regard to the need to give notice of the hearing to the male respondent. At the time of the incidents and the time of the proceedings in the Magistrates Court, the respondents were husband and wife living together, but they have subsequently separated. The female respondent told me on 4 May that she had not told the male respondent of the hearing date, and unsurprisingly the male respondent did not himself appear on 4 May. [5] In circumstances where the male respondent has not had notice of the proceedings and therefore not had an opportunity to be heard, I could not make any order adverse to his interest, but I did not realise that the female respondent was not representing both of them until the end of the hearing of the appeal, and in those circumstances I thought it more efficient to hear and determine the appeal as against the female respondent. If that appeal was successful, it would be necessary to give the male respondent the opportunity to be heard before determining the appeal as against him. As will be apparent, I consider that I can, in the circumstances, dispose of the appeal as against the male respondent anyway. History of the proceedings [6] The proceedings in this case arise out of an unfortunate dispute between neighbours. The appellants and the respondents were formerly neighbours in a reasonably new subdivision in the Hervey Bay area; the respondents had purchased -- 2 of 10 -- 3 and moved into their property prior to the time when an adjoining parcel of land was purchased by the appellants, who then built on that land. The parcels of land are relatively large; a rough calculation from Exhibit 9 suggests that each parcel is of the order of 4,000 square metres in size. The boundary between the parcels was at least initially unfenced, and it seems that some difficulties arose between the parties as to the location of this boundary, and as to the question of fencing it. At an early stage there was some issue about whether the water meter for the appellants’ property had been properly located or whether it was located partly on the land of the respondents; it appears that ultimately it was determined that the meter was incorrectly sited and straddled the true boundary line, but the respondents’ material suggests that there was some ill feeling between the parties arising out of this dispute. In any case, it appears that relations between the parties rapidly deteriorated thereafter. [7] Separate complaints against each of the appellants were sworn by the respondents under the Peace and Good Behaviour Act on 10 April 2000 and they were then filed in the Magistrates Court at Hervey Bay, where summonses were issued. There had, however, previously been a complaint sworn by the appellants against the female respondent under that Act, and I think it is fair inference that the respondents’ complaints were in response to that complaint. On 14 December 1999 there was a mediation between the parties which apparently produced some sort of agreement, although it was sealed and placed on the court file. As a result of some argument which appears in the transcript of 24 May 2000, it emerged that one provision of this agreement was that if there was no further conflict for three months, then the complaint by the appellants would be withdrawn. This indicates that the appellants’ complaint and summons had been issued prior to that date, and it may be that the mediation was ordered by the court pursuant to the power in the Peace and Good Behaviour Act. [8] On 24 May 2000 the appellants’complaint came on for hearing before a magistrate. The preliminary point was taken on behalf of the female respondent that the condition in the mediation agreement for the complaint to be withdrawn had been satisfied, but after hearing argument the magistrate ruled against that submission. The female respondent then offered to consent to the orders sought by the appellants, but without admitting the allegations made in the complaint by the appellants. The transcript records that other open offers had been made, including mutual consent orders, and mutual withdrawal, but no agreement had been reached. After some discussion, it appears to have been accepted by the magistrate that he could not make an order unless he was satisfied that the allegations in the complaint had been made out, so that in the absence of an admission of those allegations, he had no jurisdiction to make an order. Whether or not this is correct, a point I have not considered, the female respondent was not at that stage prepared to admit the allegations and the matters proceeded to hearing. [9] The appellants’ complaint was heard first, in the sense the appellants’ case started first, although I was told on the hearing of the appeal that in practice the evidence in relation to both the appellants’ complaint and the respondents’ complaints were heard together. To some extent evidence in chief was limited because affidavits had been filed, but there was extensive oral evidence and at the end of the first day each of the appellants had given evidence as had one of their witnesses. -- 3 of 10 -- 4 [10] The matter resumed for a second day on 27 July 2000 when, after some further discussion between the parties, the female respondent consented to an order being made against her on the basis of the allegations made against her in the complaint for a period of two years, with there to be no order as to the costs of the appellants’ complaint. That was the result of an agreement between the parties to dispose in that way of the appellants’ complaint, but at that stage there was no agreement in relation to the respondents’ complaints, and the magistrate then proceeded with the hearing of them. At first he dealt with a preliminary point about whether similar fact evidence was admissible from former neighbours of the appellants, and ruled that it was admissible. [11] The female respondent then gave evidence in chief and was cross-examined, and that cross-examination was continuing at the end of the day. Just before the matter was adjourned, the solicitor for the appellants in the course of his cross-examination produced what he said was a tape recording of the female respondent, although that was ultimately not made an Exhibit for reasons which will become apparent. Nevertheless, it is apparent from a quick reading of some of the cross-examination prior to that point that the usual preliminary to producing such evidence had been complied with, that is to say there had been cross-examination about various things which, had they occurred, may well have been audible on a tape recording. [12] The hearing was then adjourned until 23 August 2000, when counsel for the respondents announced that the respondents were withdrawing their complaints, on the basis that they could not afford to proceed with the hearing, and that the stress associated with the proceedings was adversely affecting the female respondent, who was then heavily pregnant. There was argument about costs, in the course of which it was submitted (as it was submitted before me) that the real reason for the withdrawal was that the respondents were concerned about the effect of the tape recording. [13] In view of the cross-examination, the tape recording could have had significance in two ways. It could have provided some evidence to support the proposition that the female respondent was behaving in a way which would justify making an order under the Act against her, and it would be relevant to the question of her credibility if it had the effect of falsifying her denials of such behaviour. Whether it was capable of living up to these expectations was a matter the magistrate was never in a position to resolve, but plainly he was in a reasonable position to draw some inference as to the significance of such a tape if it lived up to the appellants’ expectations. If anything there was a risk that without hearing the tape he might have overestimated its significance, but there is no indication that he did so. He would, however, have been able to appreciate that the tape would not have touched directly on the matter which was relevant in the proceedings he was then conducting, which was whether there had been conduct on the part of the appellants which justified making an order under the Act against either or both of them. Proving that the female respondent had been behaving badly does not prove that the appellants had not been doing so; it is quite possible that both parties had been behaving badly. -- 4 of 10 -- 5 Jurisdiction to order costs [14] Section 158(1) permits the court to make an order that the complainant pay the defendant’s costs “when justices … dismiss the complaint”. In Turner v. Randall, ex parte Randall [1988]) 1 Qd.R. 726, the Full Court was dealing with an order to review a decision by a magistrate who had allowed a charge under s.5 of the Electricity (Continuity of Supply) Act 1985 to be withdrawn and made no order as to costs. The court said in a joint judgment at p.728: “The orders to review sought the review of both the decision that the matter be withdrawn and the decision to refuse costs, but the grounds stated related only to the question of costs. This creates a problem which was referred to at the hearing of the appeal, namely, that s.158 of the Justice Act, which empowers a Stipendiary Magistrate to award costs against a complainant, does so only when the complaint is dismissed. The letter from the solicitors to the Police Commissioner spoke of the matter being withdrawn, and the Stipendiary Magistrate took the course of permitting the withdrawal of the matters, effectively, by consent. However, the argument before him clearly was directed to the question of costs and neither side appears to have adverted to the limitation inherent in s.158.” The court went on to note that there was authority that the power to withdraw a summons before justices existed only when the charge was not of a public nature and that accordingly in that case the magistrate had erred in permitting the complaint to be withdrawn, and accordingly that part of his decision should be set aside and an order that the complaint be dismissed substituted. The court then went on to decide that in that case it was appropriate for there to have been an order for costs against the complainant. [15] In my opinion it is clear from that decision that the court was of the opinion that, if a complaint was withdrawn as distinct from being dismissed, there is no jurisdiction to make an order for costs against the complainant, so that, had the complaint remained “withdrawn”, nothing could have been done to interfere with the decision that no order should be made as to costs. However, in the present case the Notice of Appeal did not seek to interfere with the magistrate’s order that the complaints be withdrawn, or rather the decision of the magistrate to permit the complaints in this case to be withdrawn, and the principle on which the Full Court acted in Turner would not render it wrongful for the magistrate in the present case to have permitted this complaint to be withdrawn. Not only was this not a charge of a public nature, it was not a charge at all. Whatever the effect may be of permitting the application for an order under this legislation to be made by the procedure of a complaint and summons under the Justices Act, in my opinion it does not convert such an application into a charge of a public nature. The public policy considerations which make it inappropriate to permit such a charge to be withdrawn (discussed for example in Kerridge v. Simmonds (1906) 4 CLR 253) do not apply in the case of an application for an order under the Peace and Good Behaviour Act. [16] It was submitted on behalf of the appellant that there was no relevant distinction between the complaint being dismissed and the complaint being withdrawn, -- 5 of 10 -- 6 because in each case the proceedings had terminated in a way favourable to the appellants. Assuming that that is the case, it does not alter the situation that s.178 gives jurisdiction to make an order for costs only when the complaint is dismissed. Given that the power to award costs is entirely statutory in its basis, unless the matter comes within s.158, no order can be made. It is therefore unhelpful to say that in other respects there is no relevant difference in relation to the entitlement to costs between a complaint being dismissed and a complaint being withdrawn. [17] In my opinion, the magistrate was entitled to permit the complaint to be withdrawn. There is no appeal against that order and, given that the order was not resisted before the magistrate, there would be difficulties now in challenging the magistrate’s decision to permit the withdrawal of the complaint. Once that was done, in my opinion, the question of costs became academic; there was no jurisdiction to order them. It follows that the appeal must be dismissed. Precautionary determination [18] In case I should be in error about that conclusion, however, I will deal with the merits of the appeal. Reliance was particularly placed on behalf of the appellants on the decision of the majority of the High Court in Latoudis v. Casey (1990) 170 CLR 534. In that case it was said by the then Chief Justice at p.542 that: “In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. … A court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.” In that case however, his Honour was not prepared to equate the position in the case of criminal proceedings with that in civil proceedings (p.543), and His Honour said that he would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. That is the general approach in civil proceedings, and as I have already noted, the Court of Appeal has categorised proceedings under this Act as being civil rather than criminal, although with some criminal features. [19] The question of how the discretion of costs should be exercised on the dismissal of particular proceedings was considered again by the High Court in Oshlack v. Richmond River Council (1998) 72 ALJR 578. That concerned an order for costs made in circumstances where a private individual had brought proceedings under the Environmental Planning and Assessment Act 1979 (NSW) to remedy or restrain alleged breaches of the Act. The appellant had brought such proceedings in respect of the consent granted by the respondent council to a development application by a developer seeking to subdivide certain land, alleging that the council had failed to exercise its decision making power properly, and had failed to have sufficient -- 6 of 10 -- 7 regard to the impact of the proposed development on a koala habitat. The application was dismissed, but the court made no order as to costs, taking into account a number of factors, including that this was a proceeding to enforce a public law obligation, that the appellant had nothing to gain from the litigation other than a desire to preserve obedience to environmental law and protect endangered fauna, that his attitude was shared by a significant number of members of the public, and that the basis of the challenge was arguable and raised significant issues, the resolution of which was of assistance to the future administration of the legislation. Accordingly there were “sufficient special circumstances to justify departure from the ordinary rule as to costs”: (quoted at p.582). [20] An appeal against the failure to make an order for costs was successful in the New South Wales Court of Appeal, but a further appeal to the High Court was also successful, although by a margin of only 3 to 2. The court noted that proceedings of this nature were different from the summary prosecution of a criminal charge considered by the court in Latoudis: p.584. The subsequent analysis of the court was, it seems to me, really directed to the consideration of the extent to which the general principle in civil matters that costs follow the event had sufficient capacity for flexibility to accommodate the exercise of discretion by the judge in that case, on the basis stated. Gaudron and Gummow JJ at p.586 however rejected the proposition that, in the absence of disentitling conduct, a successful party must be compensated by the unsuccessful party. At p.588 their Honours considered that the judge had not taken into account considerations which were extraneous to the object the legislature could have had in view in enacting the section which gave the discretion to award costs, and that accordingly it could not be said that his exercise of discretion had miscarried. [21] The third member of the majority, Kirby J, came to the same conclusion for, it seems to me, essentially similar reasons. His Honour said a p.605 that” “Judicial descriptions of a statutory discretion to award costs as absolute and unfettered, unqualified, uncontrolled or unconfined cannot be taken at face value. Because the discretion is typically conferred upon a court or tribunal obliged to act judicially, fetters, confinements and controls of a sort are provided by the law. Although appellate courts should avoid the imposition of rigid requirements which would gloss the statute and narrow the discretion afforded to the donees of the statutory power, they retain a function to guide those who are obliged to exercise cost discretion.” His Honour went on to note that the ordinary rule in civil litigation is that legal costs will usually be ordered in favour of the successful party, and continued at p.606: “But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined. To permit this would be incompatible with statutory language expressed in such terms. Therefore, although there are ‘rules’ or ordinary principles which will guide the donee of power in the exercise of the discretion, they -- 7 of 10 -- 8 cannot extinguish the element of discretion. They must not be allowed to harden to rigid or inflexible requirements.” [22] In Latoudis v. Casey (supra) McHugh J, one of the majority judges, at p.569 quoted with approval a passage by Viscount Cave LC in Donald Campbell and Co v. Pollak [1927] AC 732 at 811-2: “A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case.” This approach was also referred to, as reflecting the general position in relation to the costs in civil matters, by Kirby J in Oshlack at p.605. [23] Referring to the reasons of the magistrate in the present case, aspects of this general proposition are found; he noted an unfettered discretion to award costs, and he also concluded that there were “special circumstances then attaching to these proceedings” as a result of which it would not be “just or equitable in the circumstances” to award costs to the appellant. In so far as the authorities establish that the ordinary rule is that a successful party should receive costs in the absence of special circumstances connected with the case, the magistrate has found that there were special circumstances connected with the case, which is an appropriate basis for justifying the order which he made. On the face of it therefore the magistrate has approached the matter of the exercise of the discretion in the way held by the High Court to be appropriate. [24] The question then is whether the magistrate appears to have taken into account matters which were not appropriate for his consideration, and whether there were circumstances associated with the case which were capable of providing a justification for such a view. The circumstances specifically referred to were that the proceeding had been withdrawn, not dismissed, and that it was not a case where the appellants had succeeded as a result of the matter being finally heard and determined on its merits by the court. The fact that the proceedings were withdrawn rather than dismissed had a significance in relation to the question of jurisdiction to which I have already referred, but plainly that is not the significance attributed to it by the magistrate. However, he was in my opinion reflecting the circumstance that he had already had the opportunity to hear a great deal of the evidence which would have been relevant for the determination of the matter, including hearing oral evidence from the principal parties on both sides and having the benefit of cross-examination of them. He went on to note that he was “not in a position to say at this point in time whether I would not have made an order against Mr. Besgrove”. That, I think, was carefully expressed and an appropriate statement in circumstances where the hearing had not concluded, but it does not suggest that at that stage any fatal deficiency in the respondents case had emerged, as was the -- 8 of 10 -- 9 case in Turner v. Randall (supra), or that he was disposed to disbelieve the allegations which had been made against the appellants. He did not say that he would not make an order. [25] He also went on to reject the conclusion the complaint had been made vexatiously or maliciously. I do not think that in doing so he was adopting the approach that an order for costs was made against the complainant in such circumstances only if the complaint had been made vexatiously or maliciously; rather I think this is again a reflection of the opportunity he had had to make some, albeit preliminary, assessment of the merits of the matter as a result of the benefit of two days of hearing witnesses. Whether a complaint is vexatious or malicious is expressly made a relevant issue on the hearing by s.6(2) of the Act: Laidlaw v. Hulett (supra) at 51. [26] That gives rise to the question whether, in circumstances such as these, a magistrate is bound to disregard such exposure to the substance of the matter as has occurred in the course of the hearing when determining the question of costs. In my opinion, in a situation where a matter is resolved other than by judicial determination after a hearing has commenced but not concluded, and the hearing has proceeded to the point where there has been at least a degree of exposure to the facts and circumstances relevant to the determination on the merits of the issues, if a determination then has to be made in relation to the question of costs, those factors may properly be taken into account. To take perhaps the converse of the present case, if as a result of two days of hearing it had become apparent that the respondents’ case was in serious difficulties, in my opinion it would have been clearly appropriate for the magistrate to take that matter into account in considering the question of costs, as supporting the conclusion that the respondents should pay the costs. In my opinion, in a situation such as this the magistrate was entitled to have regard to the circumstances as they had been revealed in the course of the evidence before him, and any preliminary views he had formed, so long as he was conscious of the fact that he had not heard the whole case and was not in a position to make final determinations about the matters in issue. What he has said in his reasons indicates that he has not fallen into that error. [27] Other matters which could, in my opinion, have been properly taken into account were the nature of the proceedings under the Peace and Good Behaviour Act, in substance an application for an order that the appellant not be aggressive towards the respondent. The approach of the majority in Oshlack clearly indicates that the particular nature of statutory proceedings and the particular purposes for which the statute has been enacted can amount to relevant consideration. There were also the circumstances that this was a dispute between neighbours, that the appellants had filed complaints against the respondents first, and that the appellants’ complaints had been resolved in the way they were, on a basis where by agreement there was to be no order as to costs. Although that agreement was only directly referable to the proceedings commenced by the appellants’ complaint, the costs sought before me, and apparently before the magistrate, included in effect the whole of the costs of all of the proceedings, on the basis that all of the hearing had been attributable to both complaints. But that would, in substance, breach the agreement between the parties on the basis of which the other complaint was determined, that each side bear its own costs in relation to that complaint. That was another relevant circumstance in -- 9 of 10 -- 10 my opinion and it was a circumstance which could contribute to a conclusion that the proceedings had attached to them special circumstances. [28] It is not clear whether the magistrate actually took into account the question of why the respondents’ complaints had not been proceeded with, and were withdrawn. The reasons given by the respondents, that they had run out of funds and that the proceedings were placing too much strain on the female respondent in circumstances where she was heavily pregnant and had previously miscarried, do not involve any implicit admission that proceedings ought not to have been commenced, but the appellants can and did say that the timing may well have been influenced by the prospect of the production of the tape recording. The magistrate was in a position to make some assessment of the significance of that, for reasons I have given earlier, and I think that it would have been permissible for him to have some regard to that as part of the general process of considering his preliminary views as to the merits of the matter with the benefit of two days of hearing, but he may well have been cautious in such circumstances about concluding that the proceedings were in fact being discontinued for the reasons stated by the respondents. In those circumstances, the magistrate may well have thought it appropriate to disregard this factor entirely. [29] In my opinion, overall there were circumstances associated with the particular proceedings which were capable of being regarded by the magistrate as special circumstances. An appeal against an exercise of a discretion can only succeed if the discretion is shown to have been exercised on some incorrect basis, or if the discretion is exercised in a way which is outside the range of permissible outcomes for the discretion properly exercised. It is not a question of what I think the appropriate costs order ought to be in such circumstances; it is a question of whether it is shown that the magistrate erred in making the order that he did. In my opinion, that has not been shown and, if the magistrate had had jurisdiction to make an order for costs against the appellants, I would still not interfere with his decision to make no order as to costs. [30] It follows that the appeal is dismissed. There was no indication the respondents had incurred any legal costs, and therefore there should be no order for the costs of the appeal. -- 10 of 10 --