An Award of Costs to the Respondent following a Section 222 Appeal

I gnoring for the moment the merits of the appeal. The issue arises as to who should have been the respondent in the matter. Section 222 of the Justices Act 1886 sets out that a person aggrieved by an order of a Magistrate may appeal to the District Court. The appeal must identify the name and address of the respondent. The respondent is identified as the ‘person concerned in upholding the appealed order’ (s. 221). Whilst the Acts Interpretation Act 1956 allows a person to also be a corporation, the real issue is to identify who is the person concerned in upholding the Order. A matter giving rise to a s. 222 appeal usually commenced by way of complaint and summons or a Notice to Appear. In each of these the complainant is usually the officer giving the notice. At a summary trial it is the complainant who is entitled to seek costs or to pay costs (s. 157 and s. 158). The complainant is a party to the proceedings and it is in truth the complainant who is the person who is concerned in upholding the decision appealed from (note s. 222D(4)) which requires the Registrar to send the Notice of Appeal to the Commissioner of Police if the respondent is a police officer). It is not the Commissioner of Police nor is it the Superintendent of Traffic or any other non-juristic person. Indeed the Form 27 Notice of Appeal under the Justices Act provides under Contact Details for Respondent, the following:

Clearly the intention is that the Respondent is to be the ‘complainant’ from the summary proceedings!

On an appeal under s.222, costs may be ordered to be paid by either party, as the judge may think just (s. 226). Costs of an appeal are dealt with under s. 232 and the Order for costs must state the time in which costs are to be paid (s. 232(1)). No appeal costs may be awarded with respect to an indictable matter heard summarily (s. 232(4)(a)). Where costs are not paid in the time specified a certificate may be obtained in the same manner as costs for the summary trial (see s. 158A(4)) from the State. The costs allowed are specified under the Justices Regulations 2004. Where $250 is allowed for a mention and the sum of $1,500 is allowed for day 1 of a summary trial, a 20% increase is allowed for a hearing before a judge of the District Court (ie $300 and $1,800).

It is often, not always, the case that the Office of the Director of Public Prosecutions appears on a 222 appeal. In such a case the police officer complainant (the correct party to the appeal) is generally not paying for the legal representatives. In Latoudis v Casey (1990) 170 CLR 534 Mason CJ recognised the principle that costs are awarded by way of indemnity to a successful party (at para [13]), similarly Dawson J at para [31]. Toohey J also noted (at para [8]) that costs are not a punishment against the looser but an indemnity to the successful party (also McHugh J at para [4]).

A police officer complainant is not put to any expense in relation to the s. 222 appeal and therefore need not be indemnified for any costs. Therefore it would follow that no costs can be awarded to the Respondent because the party has not incurred any costs.

In the recent matter of Nelio it is submitted that unless it was shown that the police officer complainant incurred costs, there should not with respect have been any costs order. Again in the matter of Soloman v Arope (sub nom Soloman v Queensland Police Service [2009] QDC before Durward SC DCJ 14.08.09) the Court awarded costs against the Appellant. Interesting, the Respondent had been named in the Form 27 as Constable Arope, but was changed without the consent or knowledge of the Appellant to the Queensland Police Service. Similarly in Washband v Bye [2009] QDC 243 the Appellant named the police officer complainant as the Respondent but the name was changed without the Appellants knowledge or consent to Queensland Police Service. The issue was raised in the appeal but the mater was not further investigated as the appeal was allowed and costs awarded to the appellant.

The name of the respondent in a 222 appeal has implications. Appellants should remain vigilant against Orders which can not be justified or which are not permissible under the legislative scheme.

Darin Honchin

Footnote

1. And who do you say is the respondent? Issue 26 May 2008