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Protester to pay only part of appeal costs

A CBD protester fined for breaking Brisbane City Council (BCC) local laws will have to pay two-thirds of the council’s hefty costs of his failed appeal.

Political activist Drew Pavlou was fined a total of $1000 in October last year over an incident in the Queen St Mall in May 2022, where he held a placard stating “nothing happened June 4 1989 change my mind”, in reference to the Tiananmen Square massacre in China.

Mr Pavlou was convicted in Brisbane Magistrates Court of failing to obtain consent, and failing to comply with an oral direction, under the Public Land and Council Assets Local Law 2014. He unsuccessfully appealed the fine in May this year.

The appeal cost BCC about $72,349.35 but under the statutory scale, costs would amount to only about $4269.60.

The council appealed to the District Court under Section 222 of the Justices Act 1886 (Qld), arguing that the case was of special difficulty, complexity or importance, and as a consequence, costs above the District Court scale should be awarded.

In his decision delivered in Brisbane on Monday, Judge Smith agreed with BCC that the case was of special difficulty, complexity or importance but that the council should not be awarded all of its costs.

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TR CoCounsel

BCC submitted the case was difficult and complex because:

  • notices had to be issued under Section 78B of the Judiciary Act 1903 (Cth) (as it involved a Constitutional question);
  • appeal grounds were difficult and complicated;
  • this was the first case to deal with relevant provisions of the Local Law since the commencement of the Human Rights Act 2019 (Qld);
  • there were wide-ranging allegations made about the effect of that Act;
  • both parties were represented by King’s Counsel; and
  • it was a case of public interest.

Mr Pavlou submitted there had been “profligate expenditure” by BCC and that there should be no order as to costs of the appeal, citing public interest considerations among his reasons.

“I am cognisant of the public interest considerations raised by the appellant but do not accord those great weight in this matter bearing in mind that the ratepayers of Brisbane could “foot the bill” in this matter, which concerns important issues as to the management of a public area in the Brisbane CBD,” Judge Smith said.

In explaining his agreement with BCC, he said the requirement of notices under the Judiciary Act “recognised the special character of these proceedings”; that “jurisprudence on the Human Rights Act remains at an early stage of development in Queensland”; and that both parties being represented by King’s Counsel reflected “the seriousness of the issues which were before the court”.

“I agree the appeal had particular importance because it dealt with matters of public interest including constitutional and HRA arguments in the context of s 21 freedom of expression. The appeal provided an opportunity to contribute to this developing jurisprudence. In all of the circumstances I am satisfied that the respondent has established that which it needs to under s 232A of the Justices Act,” he said.

Judge Smith said it was difficult to determine whether the sum of $72,000 was reasonable, but it seemed high and should be assessed.

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TR CoCounsel

He certified for the costs of senior counsel and proposed an order for fixed costs of $30,700, with Mr Pavlou to pay $20,262. He allowed the parties seven days to decide whether to agree on a judgment for that amount (or an agreed amount) to avoid the requirement for an assessment.

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