A motorcyclist remains $32,000 out of pocket after a failed appeal to have police pay his court costs when they tendered no evidence against him.
Nathan Short appealed a decision made in Sandgate Magistrates Court in October last year that Queensland Police Service (QPS) pay almost $7000 in costs.
Mr Short had engaged a barrister to defend two traffic charges, spending almost $39,000 in legal fees over more than six months, until QPS decided to offer no evidence.
He appealed the costs order on the grounds that the magistrate erred in three ways, by finding:
- counsel’s fees were not a disbursement and therefore not payable;
- three adjournments were mentions only; and
- the matter was not of special difficulty, complexity or importance.
Mr Short was charged with failing to comply with his duties as a driver involved in a crash, and unsafe lane filtering. A driver alleged Mr Short had hit the side mirror of his car and damaged the side of his vehicle, and had not stopped.
The trial began on 2 February 2022, with Mr Short representing himself. When it resumed on 17 February, Mr Short was represented by a barrister. The hearing resumed on 18 May, 3 August and 31 August, before QPS decided to offer no evidence in the matter and it was listed for a costs argument on 12 October.
Mr Short applied for total costs of $27,000 for counsel fees and $11,918.14 for a solicitor.
In her decision handed down on 25 October, the Magistrate referred to Section 158 of the Justices Act 1886 (Qld). She considered that costs should be awarded but that counsel’s fees were not a disbursement and a solicitor could have done the trial. Her Honour concluded there were four mentions and three days of hearing, and ordered QPS pay his fixed costs of $4250 plus outlays of $2668.14.
In the appeal decision published last week, District Court Justice Smith stated s 158B limited the awarding of costs to a scale of items and amounts, but allowed justices to award 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”.
Justice Smith found the case was not a case of special difficulty, complexity or importance because it involved everyday credit issues, and traffic charges which were not of particular importance to the development of law.
He agreed with the magistrate finding there were three trial dates and four mentions.
In assessing whether counsel’s fees were recoverable as a disbursement, he said there was no power to award an additional amount for counsel’s fees under the relevant scale of costs. He said costs provisions in the Act were concerned with the expenses of an advocate, such as travelling and accommodation, not fees for acting as an advocate.
“It may be thought that this is a harsh result for the appellant, but the court is bound by the law,” he said.