Brisbane City Council (BCC) has won an appeal for professional costs, after the District Court found a magistrate had not used her discretion judicially.
In Holland Park Magistrates Court on 24 October last year, Brisbane sushi outlet owner Fang Lui pleaded guilty to 16 charges of breaching the Food Standards Code under Section 39(1) of the Food Act 2006 (Qld).
The magistrate fined Ms Lui $30,000, with no convictions recorded, but refused to make an order that she pay BCC’s professional costs of $1000.
In his decision delivered in Brisbane on Wednesday, District Court Judge Administrator Smith allowed the BCC’s appeal, and ordered Ms Lui pay the council $1000 in costs.
Judge Smith stated that towards the end of the Magistrates Court proceeding, her Honour had said: “just before we get to penalty, I will continue my ongoing issue with council’s claim for costs in circumstances where people are pleading guilty”.
She had expressed the view that “there was no real prosecution of the case. So I’m not going to award costs as is my usual (practice)”.
She had then ultimately concluded that there was no basis to award costs and had exercised her discretion against it, adding “if you don’t like it you can appeal”.
On appeal BCC argued the magistrate failed to exercise her discretion judicially, or alternatively, took into account irrelevant considerations and failed to take into account relevant considerations.
Judge Smith said a successful party, where there were no special circumstances, had a reasonable expectation of obtaining an order for costs.
He said the discretion to order costs must be exercised judicially and not arbitrarily.
“In this case I conclude the magistrate fettered the exercise of her discretion by deciding the matter on the basis that this was her usual practice,” he said.
“She also erred in finding that there was no real prosecution. There was a real prosecution on serious breaches of the code which required the drawing of a complaint, the preparation of detailed submissions and an appearance in the court.
“I find that the discretion was not exercised judicially. The magistrate refused to make a costs order based on her view that the appellant should not be seeking costs where an early guilty plea had entered. That is not the sole question. That might be one factor to take into account but other factors were to be considered here.”
Those other factors relevant to the discretion included the objects of the Act, that there were multiple breaches, Ms Lui’s unsatisfactory compliance history, the amount of work done by the prosecutor, and that costs were not opposed by the respondent, Judge Smith said.
“The mere fact the respondent pleaded guilty could not, without more, justify denying the prosecutor of their just and reasonable costs,” he said.
“They were not punitive. They were compensatory in this case.
“Only $750 was sought by the prosecutor (one half of the scale amount) together with a $250 mention consistent with the amount mentioned in the regulation.
“There was nothing to indicate the fees were unreasonable.”
No order was made as to the costs of the appeal.
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