April 9, 2021
South Burnett councillor Scott Henschen’s former campaign manager Judy Schulz has been ordered to pay a total of $1500 in costs after a court on Friday dismissed three complaints lodged by her.
Ms Schulz lodged an application for a peace and good behaviour order against Cr Henschen (Division 6) and Kingaroy businesspeople John and Laura Newbery in Kingaroy Magistrates Court last month.
Ms Schulz ran Cr Henschen’s campaign for the March 2020 Council election but afterwards had a very public falling out with her client.
Ian Dempster, from Toowoomba-based solicitors Wonderley & Hall, appeared by phone link for Ms Schulz at Friday’s proceedings in Kingaroy.
Ms Schulz was not present in court.
Cr Henschen was supported by friends, family members and two fellow Councillors in the public gallery.
Mr Dempster told Magistrate Andrew Sinclair the applications against Cr Henschen and the Newberys had been withdrawn by a letter to the Court Registry on March 16.
However, solicitor Andrew Kelly, from KF Solicitors in Kingaroy – representing Cr Henschen and the Newberys – sought to have the complaints dismissed and $1000 costs awarded to each of his clients.
Legal argument then ensued whether costs could be ordered if a complaint of this nature was withdrawn rather than dismissed, and whether a complaint could be withdrawn if the respondent did not concur.
Mr Dempster argued the court had been notified at an early stage that Ms Schulz would not be proceeding with her complaint, however Mr Kelly argued costs had already be incurred by this stage.
Ms Schulz’s solicitor also argued that Magistrate Sinclair had no jurisdiction to make any award for costs, suggesting he was being asked to dismiss a complaint as “vexatious or frivolous” when no evidence had been offered.
Mr Dempster cited a case from 2001 to support his arguments, which referenced an earlier judgment from 1987.
Magistrate Sinclair then pointed out the 1987 case referenced a Queensland Full Court case from 1879.
At this point, the hearing was adjourned to allow counsel to consider this 1879 case, which pre-dated both the Justices Act 1886 and the Peace And Good Behaviour Act 1982 under which costs would be decided and the complaints had been originally been lodged.
After hearing arguments from both solicitors, Magistrate Sinclair said he was entitled to permit the complaints to be withdrawn but one party could not withdraw without the consent of the other.
He then dismissed each of Ms Schulz’s complaints.
Magistrate Sinclair said he also had the power to award costs but the Justices Act set the limits: $250 per defendant per court attendance.
He emphasised the awarding of costs was “compensatory only” for the costs incurred by the respondents; it was not to punish the unsuccessful party.
He ordered Ms Schulz pay Cr Henschen and the Newberys $500 each “recoverable against the goods and chattels of the complainant”.
Footnote: In a related matter, South Burnett Mayor Brett Otto is yet to decide the outcome of a complaint lodged by Ms Schulz against Cr Henschen which has been referred back to Council for decision.