The case of Pavlou v Brisbane City Council [2024] QDC 73 concerned an appeal by a party convicted of offences in the Magistrates Court of Queensland (Appellant) to the District Court of Queensland (Court) against those convictions, which were brought by the Brisbane City Council (Council) for contraventions of a local law.

On 3 October 2023, the Appellant was convicted of two charges being the failure to obtain a consent to carry out a regulated activity contrary to section 68 of the
Public Land and Council Assets Local Law 2014 (Local Law) and the failure to comply with an oral direction contrary to section 72(1) of the Local Law.

The Appellant appealed those convictions and in determining the appeal the Court considered the following issues:

1. Whether the Magistrate erred in the approach to the matter.

2. Whether the elements of Charge 1 could be proved.

3. Whether the elements of Charge 2 could be proved.

The Court found that the convictions were valid and dismissed the appeal.

On 17 May 2022, the Appellant had been sitting at a foldaway table obstructing the walkway outside of 79 Adelaide Street, Brisbane City, and displaying placards in support of a political campaign, including a sign which read "nothing happened June 4 1989 change my mind" (Placard), a Senate sign, and a political brochure (see [10] to [11]).

The first charge against the Appellant was in respect of a failure to obtain a consent to carry out a regulated activity under section 68 of the Local Law (Charge 1). Communicating advertising matter by means of any placard, board, banner, or article of a similar nature is a regulated activity stated in schedule 1 of the Local Law and requires consent from the Council. No consent had been obtained by the Appellant (at [6]).

The second charge against the Appellant was in respect of a failure to comply with an oral direction contrary to section 72(1) of the Local Law (Charge 2). The Appellant had been directed by an authorised person, being a Senior Customer Liaison with the Council, to stop communicating the advertising matter by means of the Placard. The Appellant did not comply with the authorised person's oral direction (at [7]).

The Appellant was convicted of Charge 1 and Charge 2 and appealed against that decision.

The Magistrate observed that there may have been an issue of duplicity in relation to Charge 1 because there were a number of signs involved in the charge (at [18]). As a result, the prosecution elected to rely only on the Placard in relation to Charge 1.

Despite the prosecution's election, the Magistrate proceeded on the basis that the initial drafting of Charge 1 was not duplicitous and found that "…there was evidence supporting a guilty verdict in light of the fact that the case involved all of the placards…" (at [24]).

The Court found that the Magistrate's reliance on all of the placards to convict on Charge 1 was an error of law which constitutes a denial of natural justice (at [30]). The Court approached the rehearing in respect of Charge 1 on the basis that the charge only related to the Placard [51].

The Appellant submitted, amongst other things, that the Placard could not be "advertising matter" for the purpose of the Local Law as it "…conveyed no intelligible information and was not 'advertising'" (at [31]). The Appellant also submitted that the Appellant's conduct was protected by section 21(2) of the Human Rights Act 2019 (Qld) (Human Rights Act) and the implied freedom of political communication under the Australian Constitution (at [34]).

The Council submitted that the meaning of "advertising matter" is a matter of statutory construction and there is no requirement for proof of a commercial aspect, as indicated by the case law (at [40]). The Council also submitted that the Local Law did not impose unnecessary or unreasonable restrictions on the Appellant's human rights or implied freedom of political communication and the Appellant simply needed to obtain the Council's consent in accordance with the Local Law (at [41]).

The Court found that the Placard was "capable of communicating" (at [54]). The Court also considered the meaning of "advertising" as discussed in the relevant case law and found that the term only requires the bringing of a matter to the attention of the public (see [62] to [65]).

The Court also considered the context of the Local Law and found that it serves the important purpose of regulating activities in or abutting the Queen Street Mall for the safety and amenity of the public (at [68]). Whilst the Local Law imposed a restriction on rights under section 21(2) of the Human Rights Act, the Court held that the restriction was reasonable and appropriate to serve a legitimate end (see [88] and [94]). The Local Law was valid and there was no breach of the Appellant's human rights or implied freedom of political communication (at [89]).

The Court found that the elements of Charge 1 were proved beyond reasonable doubt and the conviction was valid (at [97]).

The Appellant submitted that the Appellant was only directed to "pack up" which did not constitute an oral compliance direction under section 59 of the Local Law. The Appellant also submitted that the Appellant "…complied with a direction by placing any advertising material face down" (at [35]).

The Council submitted that the evidence made clear that the oral direction was given to cease displaying the material, which the Appellant did not do, and that being told to "pack up" sufficiently falls within section 59 of the Local Law.

The Court found, after having listened to the recording of the interaction, that a lawful direction was given by the authorised officer for the Appellant to cease displaying the advertising material, which the Appellant did not comply with (at [99]).

The Court found that the elements of Charge 2 were proved beyond reasonable doubt and that the conviction was valid (see [100] to [101]).

The convictions made by the Magistrate were upheld and the appeal was dismissed.

The case of Pavlou v Brisbane City Council (No 2) [2024] QDC 108 concerned an application by the Council seeking costs above the ordinary scale of costs following the Court's decision uphold the Magistrate's convictions and dismiss the appeal.

The Council submitted that the grant of costs should be more commensurate with the actual costs rather than the scale costs (at [3]) and that the case was a matter of difficulty and complexity for various reasons (at [2]).

The Appellant submitted that there was a "profligate expenditure" on the part of the Council and noted that the procedural fairness issue was allowed on appeal (at [4]). The Appellant also submitted that "…costs orders should not serve as a disincentive for members of the community to bring before the Court arguable cases where fundamental rights are in play" (at [5]).

The Court was cognisant of the public interest considerations raised by the Appellant but did not afford them great weight (at [8]) and agreed with the Council that there was "…some special difficulty, complexity or importance in this case" (see [14] to [17]).

The Court observed that it was difficult to determine if the Council's costs of $72,000 is reasonable or not and that it does seem high and should be the subject of a costs assessment (at [21]).

The Court ordered that the Appellant pay 66% of the Council's costs of and incidental to the appeal on the Court scale on the standard basis as agreed or assessed (at [22]).

The Court allowed the parties seven days to decide whether the amount of $20,262, which was 66 % of the following, should be fixed as the Council's costs (at [24]):

• Senior counsel and junior counsel costs – A combined cost of $19,800 for 1 day preparation, including drafting an outline of submissions, and 1 day appearance.

• Solicitors costs – A cost of $9,900 for 2 days preparation and 1 day appearance.

• Outlay costs – Outlay costs in the amount of $1,000.