Thammaruknon v Queensland Police Service

[2016] QDC 72

DISTRICT COURT OF QUEENSLAND

CITATION:

Thammaruknon v Queensland Police Service  [2016] QDC 72

PARTIES:

MANATNAN THAMMARUKNON
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

APPEAL NO: 53 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

31 March 2016

DELIVERED AT:

Cairns

HEARING DATE:

29 January 2016; and 26 February 2016.

JUDGE:

Morzone QC DCJ

ORDER:

1.   The respondent will pay the appellant’s costs of the appeal assessed at $2,550.00.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – costs –
“just” costs - limited to the scaled items and amounts unless higher amount is just due to “special difficulty, complexity or importance” – assessment.

Legislation
Justices Act 1886 (Qld), ss 158, 222, 232A and 226
Justices Regulation 2014 (Qld), Schedule 2

Cases

Latoudis v Casey (1990) 170 CLR 534

Scanlon v Queensland Police Service [2011] QDC 236

SOLICITORS:

Bottoms English Lawyers for the appellant
The Office of the Director of Public Prosecutions for the respondent

Background

1. In the wake of succeeding in the appeal, the appellant now applies for costs.

1. On 26 February 2016, this Court allowed the appeal, set aside the convictions and orders of the learned magistrate made 9 March 2015; and pleas of not guilty were ordered to be entered in relation to each of the four (4) charges against the appellant.  The parties were invited make submissions as to the costs of the appeal. 

1. I have considered the appellant’s submissions filed on 11 March 2016, and the respondent’s submissions filed on 17 March 2016.

Jurisdiction

1. Section 226 of the Justices Act 1886 (Qld) (“the Act”) provides that a judge may make such order as to the parties’ costs incurred in the bringing of an appeal under s 222 as the judge thinks just. The discretion to award costs must be exercised judicially,[1] to compensate a successful party, and not by way of punishment of the unsuccessful party.[2]

   [1]            Latoudis v Casey (1990) 170 CLR 534

   [2]            Scanlon v Queensland Police Service [2011] QDC 236

1. Pursuant to s 232A and the Justices Regulation 2014 (Qld) (“the Regulations”), in deciding the costs that are ‘just’ the judge may award costs only:

   (a)        in relation to an item allowed for under the scale of costs that is contained within Schedule 2 of the regulation; and

(b)        up to the amount allowed for that item under the scale.

1. Pursuant to s 232A(2), a judge may only allow a higher amount for costs if satisfied that the higher amount is just because the appeal involved some special difficulty, complexity or importance.

1. The appellant also relies upon s 158(1) of the Act, which provides that:

“When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.”

1. Despite the linguistic ambiguity posed by s 158(1), it only applies when a magistrate dismisses a complaint. In this case, the magistrate convicted the appellant at first instance, and when the matter was remitted by this Court, the magistrate dismissed the appellant’s application under s 147A to reopen the proceeding. The latter decision was the subject of the current appeal proceeding. The resultant orders were neither a conviction nor a dismissal of the complaint.

1. In my view s 158 has no application in the circumstances of this case.

Costs Award

1. The appellant’s appeal was clearly meritorious as properly recognised by the respondent throughout this appeal proceeding (including its earlier manifestation when the matter was remitted to reopen the primary proceeding).  Before returning to this Court, the appellant had exhausted all other avenues to exculpate herself from the erroneous outcome.  In the circumstances of this case, it would be inequitable for the appellant to bear the financial burden of her recourse to this Court and it would be just and reasonable to compensate her for costs.

Assessment

1. The court’s jurisdiction is limited to “just” costs and to the scaled items and amounts, unless a higher amount is just because the appeal involved some special difficulty, complexity or importance.

1. The appellant submits that the legal costs incurred or to be incurred “in appealing the convictions” are “to date in the vicinity of $5,500.00”.  The appellant seeks an order that the respondent pay the appellant’s costs on an indemnity basis, or in the alternative be ordered to pay costs in the fixed amount of $5,500.00. 

1. The submission is flawed in several respects. Firstly, the appeal was not one against “the convictions”, instead it was from the refusal of the s 147A application (as directed by Judge Harrison on 27 November 2015). Secondly, the appellant provides no particularisation of the costs calculation. Thirdly, the quantum well exceeds the items and amounts in the scale of costs.  Fourthly, the appellant makes no attempt to demonstrate some special difficulty, complexity or importance.  It is not enough to say that “the appellant has been put to unnecessary expense in appealing to the District and Magistrates Court to have the erroneously entered guilty pleas vacated.”  Fifthly, there is no demonstrated basis to seek indemnity costs, especially where the magistrate had to manage the appellant’s own language limitations and ignorance of procedure.  The appellant’s submissions also note that “certain of the mentions of this matter could be deemed to be as a result of the appellant’s over-caution, negligence or mistake.”

1. I am unable to identify any grounds to justify an award for costs on the indemnity basis or the fixed amount of $5,500.00.  That is not to say that the matter was not of special difficulty, complexity or importance, which I further consider below.

1. In the further alternative, the appellant submits for $2,350.00 for the costs in reliance upon the scale of costs in Schedule 2 of the Regulations as follows:

(a) Attendance at District Court on 29 January 2016 for hearing of complaint plus an increase of 20% as allowed for under section 4 of Schedule 2 of the Regulations for an appeal to a District Court Judge	$1,800.00
(b)      Attendance at District Court on 27 November 2015	$300.00
(c)      Attendance at Magistrates Court on 16 November 2015	$250.00

1. The respondent properly concedes that the costs sought by the appellant in items (a) and (b) are appropriate and just.  I agree, and I will allow items (a) and (b).

1. However, the respondent submits that item (c) falls outside the scope of the Act. I agree. On 16 November 2015 the matter was listed for the hearing of the application to re-open proceedings pursuant to s 147A in the Magistrates Court. The solicitors for the defendant did not attend on that critical hearing of the application.  Instead, they transmitted written submissions to the magistrate, and sought excusal from attending the hearing, which was granted. It is not clear whether an actual appearance would have avoided the appeal. In any event, that does not matter. Since the attendance was not an attendance or cost associated with this appeal, it falls outside the scope of s 266 of the Act. I will disallow item (c).

1. In my view the proceeding did involve special difficulty and complexity by virtue of the need to manage the appellant’s language limitations and the unusual meritorious efforts of all parties (and encouraged by this Court) to remit the matter to the Magistrates Court to reopen the proceedings pursuant to s 147A of the Act. That course involved more delay, inconvenience and costs. The unsuccessful outcome of that application saw the appeal re-enlivened in this Court. The case was an important one. The charges and orders were very serious and seemingly disproportionate to the facts accepted by the appellant. There was a need to correct procedural and discretionary error in dealing with arraignment procedures in circumstances of an appellant’s mistake and lack of comprehension. In effect the appellant has endured two appeals: one from the original conviction and orders; and the second from the failed application to re-open. Even so, the costs of the appeal proceeding were mitigated by the respondent’s proper concessional and sympathetic attitude to the appellant’s plight in her meritorious case.

1. In the circumstances, I will allow a higher award for costs for instructions and preparation of the appeal hearing pursuant to s 232A and having regard to the items in the scale of costs in Schedule 2 of the Regulations.

Conclusion and Order

1. For these reasons, I allow the application and I assess the appellant’s just costs in the amount of $2,550.00 as follows:

(a)      Instructions and preparation for the hearing, including attendance on day 1 of the hearing on 29 January 2016 plus 50% [Item 1]	$2,250.00
(b)      Attendance at District Court on 27 November 2015 plus 20% [Item 3]	$300.00

1. I order the respondent to pay the appellant’s costs of the appeal assessed at $2,550.00.

Judge D. P. Morzone QC