Application by Paul Anthony Armstrong under the Federal Proceedings (Costs) Act 1981

[1983] FCA 285

IN THE FEDERAL COURT OF AUSTRALIA )

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AUSTRALIAN

-	CAPITAL TERRITORY	)
) No. ACT G21 of 1981

DISTRICT REGISTRY

GENERAI, DIVISION

IN THE MATTER of an appeal from the

Suoreme Court of the Australian Caoital

Tekritory in which Peter John Bradiey

was the appellant and Paul Anthony

Armstrong was the respondent

AND IN THE MATTER of an application

by Paul. Anthony Armstrong under the

Federal Proceedings (Costs) Act 1981

O R D E R

JUDGE MAKING ORDER:	Neaves J
DATE OF ORDER:	18 October 1983
WHERE MADE:	Canberra

THE COURT GRANTS to the applicant, Paul Anthony Armstrong,

a certificate in terms of section 6 of the Federal Proceed-

ings (Costs) Act 1981 that, in the opinion of the Court, it

would be appropriate for the Attorney-General to authorise

a payment under the Act to the applicant in respect of costs

incurred by the applicant in relation to the proceedings

in this Court on appeal from the Supreme Court of the Austra-

lian Capital Territory and numbered ACT G21 of 1981 in

which Peter John Bradley was the appellant and the applicant

was the respondent.

I N THE FEDERN. COURT OF AUSTRALIA )

I ,

AUSTRALIAN CAPITAL TERRITORY

1

1 No. ACT G21 of 1981

DISTRICT REGISTRY

)

GENERAL D I V I S I O N 1

I N THE MATTER of an appeal from the

Supreme Court of the Australian Capital

T e r r i t o r y i n which Peter John Bradley

was the appe l l an t and Paul Anthony

Armstrong was the respondent

AND I N THE MATTER of an appl ica t ion

by Paul Anthony Armstrong under the

Federal Proceedings ( C o s t s ) Act 1981

CORAM:	Neaves J.
DATE :	18 October 1983

REASONS FOR JUDGMENT

This i s an appl icat ion under sect ion 6 oE the

Federal Proceedings (Costs) Act 1981 on behalf of Paul

Anthony Armstrong (he re ina f t e r ca l i ed “ the app l i can t” ) fo r

a c o s t s c e r t i f i c a t e i n r e s p e c t of an appeal to the Ful l

Court of t h i s Court from a judgment of t h e Supreme Court

of the AustraLian Capi ta l Terr i tory.

!

The h i s t o r y oE the mat te r i s t h a t t h e a p p l i c a n t

was charged with an offence against sub-section 6 4 ( 1 ) of the

Austral ian Federal Pol ice Act 1979 i n t h a t he d i d i n t h e

Aus t ra l ian Capi ta l Ter r i to ry on 26 Apr i l 1980 r e s i s t Pe t e r

John Bradley, then being	a	member	of	the Austral ian Federal
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Pol ice , in the execut ion of h i s du ty .

The charge arose from certain events which took

p l a c e a t Dickson in the Aus t r a l i an C a p i t a l Ter r i to ry on the

evening of 26 Apr i l 1980. The appl icant was dr iv ing a motor

vehic le on a publ ic street. He was stopped by two members of

the Austral ian Federal Pol ice , Constable Froome and Senior

Constable Bradley. After some questioning by Constable

Froome, the appl icant was requi red pursuant to sec t ion Z

of the Motor Traffic (Alcohol and Drugs) Ordinance 1977

t o undergo a roads ide screening tes t , tha t i s t o s a y he

was r equ i r ed to blow i n t o a device f o r the purpose of

t e s t i n g a sample of h i s brea th . It was a l l e g e d t h a t the

appl icant re fused t o undergo the sc reen ing t e s t and was

t o l d t h a t he was being taken into custody for the purpose of

having a brea th ana lys i s car r ied out a t Police Headquarters.

It was a l l eged tha t t he app l i can t l ay down ac ross the f ron t

sea ts of h i s vehic le and , desp i te a request from Senior

Constable Bradley that he get out of his vehicle, he refused

t o do so. It was fur ther a l leged that Senior Constable

Bradley took hold of the applicant 's r ight arm and began t o

p u l l him towards the door of the vehicle. The appl icant w a s

s a i d by the po l i ce o f f i ce r s t o have res i s ted be ing removed

from the vehic le and t o have k i cked h i s f ee t i n t he i r d i r ec -

t i o n . The appl icant was removed from the vehicle and taken

by pol ice vehic le to the pol ice s ta t ion for the purpose o f

having a brea th ana lys i s car r ied out. H e w z s then charged

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with three offences incluging that referred to above.

2.

The learned magistrate const i tut ing the Court

of Petty Sessions dismissed the charge on t h e ground t h a t

t h s app l i can t had not been lawfully taken into custody under

sec t ion 11 of the Motor Traffic (Alcohol and Drugs) Ordinance

1977 because the device into which the applicant had been

r e q u i r e d t o blow had not been validly approved by the Minister

of S t a t e fo r t he Cap i t a l Te r r i t o ry under the provis ions of

sub-section 5(2) of that Ordinance. It fol lowed that the

appl icant could not be said t o have r e s i s t ed the po l i ce

o f f i c e r i n the execut ion of his duty. Costs were awarded

aga ins t the informant .

An appl ica t ion was then made on behalf of the

informant, Senior Constable Bradley, to the Supreme Court

of the Austral ian Capi ta l Terr i tory pursuant to sect ion 219C

of the Court of Petty Sessions Ordinance 1930 f o r an order

risi. to review the decision of the Court of Petty Sessions.

The Supreme Court discharged the ordernis i with costs , holding

t h a t t h e n o t i c e p u b l i s h e d i n t h e Commonwealth of Australia

Gazette of 1 2 October 1977 on which the informant relied

as approving as a screening device the device into which t h e

appl icant had been required to blow was not a va l id exe rc i se

of the power conferred upon the Minis ter by sub-sect ion 5i2)

of the Ordinance. The Supreme Court reached this conclusion

on the basLs that it was bound by, and could not properly

dis t inguish, the decis ion of the Fu l l Court of t h i s Court

i n Godsen v. Billerwell (1980) 31 A.L.R. 103.

3 .

From tha t dec is ion of t h e Supreme Court an

appeal was brought to this Court . On 6 November 1981 a

Full Court of t h i s Court allowed the appeal and set as ide

the order of the Supreme Court on the ground that the

device into which the applicant had been required to blow

had been v a l i d l y approved by the Minister under sub-section

5(2) o f the Ordinance. In accordance with sub-sections (5)

and ( 6 ) of sect ion 219F of the Court of Petty Sessions

Ordinance 1930 the informant was o rde red to pay the appl icant ' s

cos t s of the proceedings i n t h e Supreme Court. The quest ion

of t h e c o s t s of the appea l to th i s Court: was reserved i n

case counse l should wish to a rgue the ques t ion in re la t ion

t o t h e o p e r a t i o n o€ sec t ion 219F of' the Court of P e t t y

Sessions Ordinance 1930. The matter was remit ted to the

Court of Petty Sessions to be dea l t wi th accord ing to l.aw.

An app l i ca t ion to the High Court on behalf of t h e

app l i can t fo r spec ia l l eave to appea l from the dec is ion of

t h i s Court was dismissed on 1 2 February 1982.

Notwithstanding the order of the Ful l Cour t of

t h i s Court that the matter be remit ted to the Court of

Pet ty Sessions to be deal t with according to law, no fu r the r

proceedings appear to have been taken in that court in

r e l a t i o n to the charge. It may be that the informant was

discouraged from proceeding further because of remarks made

in t h i s Court and in the High Court, though it i s f a i r t o

' say that those remarks were based on the oral evidence

4

I

included in the Appeal Book prepared €or the purposes of

the appeal to this Court and not on t h e t o t a l i t y of t h e

evidence adduced before the learned magistrate.

The applicant took no steps t o avail himself of

the oppor tuni ty g iven to him by the Ful l Cour t o f th i s Cour t

t o s eek an order that the informant pay his costs of t h e

appeal . I a m informed that the parties have not reached

any agreement concerning the incidence of those costs.

Indeed, the appl icant was informed by l e t t e r d a t e d 25 May

1982 t h a t i t was not an appropriate case for the informant

t o a g r e e t o pay the appl icant ' s cos ts of the appea l .

Sect ion 6 of the Federal Proceedings (Costs) Act

1981 provides in sub-section (1) t h a t , s u b j e c t t o t h e Act,

where a Federal appeal succeeds on a question of law, t h e

court that heard the appeal may, on the appl ica t ion of a

respondent to the appeal , grant to the respondent a c o s t s

c e r t i f i c a t e i n r e s p e c t o f t h e a p p e a l . The expression "Federal

appeal" i s def ined in sub-sect ion 3 ( 2 ) . It includes an appea l

t o t h i s Court from a judgment of the Supreme Court of the

Austral ian Capi ta l Terr i tory (paragraph	3 ( 2 ) ( E )	and	d e f i n i t i o n
of "Terr i tory") .

By v i r tue o f s ec t ion 1 2 of t h e A c t , t h e j u r i s d i c t i o n

conferred on a cour t by t h e Act t o g r a n t c o s t s c e r t i f i c a t e s

may be exercised by a member o f t h a t c o u r t s i t t i n g i n Chambers.

5.

The c e r t i f i c a t e t h a t may be granted under sub-section 6(1)

by a cour t t o a respondent to a Federal appeal i s a c e r t i f i c a t e

s t a t ing tha t , i n t he op in ion o f t he cour t , it would be

appropr ia te for the At torney-Genera l to au thor i se a payment

under the Act to the respondent in respec t of : -

(a ) the cos ts incur red by the respondent i n r e l a t i o n

to the appea l ; and

(b) any cos ts incur red by an appel lant in r e l a t i o n t o

the appea l tha t have been , or a re requi red to be ,

paid by the respondent t o the appe l l an t i n pu r -

suance of an order of the court , not being costs

t o which a cos t s ce r t i f i ca t e g ran ted unde r sec t ion

7 r e l a t e s .

Sec t ion7has no r e l evan t app l i ca t ion in the p re sen t ca se .

A r e fe rence in sec t ion 6 t o t h e c o s t s i n c u r r e d by

a p e r s o n i n r e l a t i o n t o a Federal appea l is, where the appeal

i s i n a sequence of appeals that includes an ear l ier Federal

appea l o r ea r l i e r Fede ra l appea l s , t o be read as inc luding

a re ference t o the cos ts incur red by the person in r e l a t i o n

t o t h a t e a r l i e r F e d e r a l a p p e a l o r all t h o s e e a r l i e r F e d e r a l

appeals . The expression "sequence of appeals" i s d e f i n e d i n

sub-sect ion 3(2) to mean a sequence oE appea l s i n which each

appeal that fol lows next af ter another appeal i n the sequence I

is an appeal against the judgment i n that: other appeal. The

expression "Federal appeal" includes an appeal to the Supreme

Court of the Austral ian Capi ta l Terr i tory from a judgment of

*	another	court	of	that	Terr	i	tory	(paragraph 3(2)(h)	and	I I
6 .
i

def in i t ion of "Ter r i to ry") .

There i s no doubt t ha t t he appea l t o th i s Cour t

succeeded on a question of law as that expression i s used

insub-sect ion6(1) of the Act . The Court i s not precluded

from granting a c e r t i f i c a t e by sec t ion 1 4 nor , as the appeal

to t h i s Court was i n s t i t u t e d on 2 1 Ju ly 1981 being a da te

subsequent to the commencement of the A c t , by sub-section 21(1)

The s t a t u t e does no t l ay down any c r i t e r i a f o r

t he exe rc i se of t he d i sc re t ion which sec t ion 6 confers on

the Court . The d i sc re t ion i s , therefore , unfet tered except

i n so f a r as l imi t a t ions upon it c& be s a i d t o a r i s e from

the general scope and purpose of the legis la t ion to be

ascer ta ined upon a considerat ion of i t s language.

The matters which may be said t o m i l i t a t e a g a i n s t

the gran tmg of a c e r t i f i c a t e i n t h i s c a s e a r e -

( a ) t he f ac t t ha t t he ques t ion o f l a w on which the

appeal to this Court succeeded would not have

arisen fo r dec i s ion in these proceedings i f the

appl icant had not himself alleged before the

l ea rned mag i s t r a t e t ha t t he dev i se in to which .

he was r equ i r ed to blow had not been val idly

approved;

(b) the fa i lure of the appl icant to take advantage

of the opportuni ty afforded to h i m by the F u l l

Court of this Court to apply to that Court for

an order that the ' informant pay the appl icant ' s

7.

costs of the appeal; and

(c) the delay of the applicant in applying for a

costs certificate under section 6 of the Act.

I have given these matters careful consideration

but, in the result, I have concluded that they do not require

the Court to refuse a certificate.

Reference has already been made to the provisions

of the Act concerning a sequence of appeals. I have found

it unnecessary in this case to pursue the question whether the proceedings before the Supreme Court of the Australian Capital Territory, being proceedings brought in accordance with the

order to review procedure provided for in Division 3 of

Part XI of the Court of Petty Sessions Ordinance 1930,

constitute an "appeal" within the meaning of that expression

in the definition of "sequence of appeals" in sub-section

3 ( 2 ) of the Act. It is unnecessary to do so for, even if

those proceedings are properly described as an "appeal" within

that definition, it would clearly be inappropriate to grant

a certificate in respect of them in the light of the order

made by chis Court in accordance with sub-sections (5) and

c

( 6 ) of section 219F of the Ordinance that the informant pay

the applicant's costs of those proceedings.

It is unnecessary to grant a certificate in

terms of paragraph (b) of sub-section 6 ( 3 ) of the Act as

the applicant was not ordered to pay the costs of the informant

8.

l

of the appeal to this Court.

In a l l the circumstances I am satisfied that this

is an appropriate case in which to grant a certificate under

section 6 of the Federal Proceedings (Costs) Act 1981

limited to the applicant's costs of the proceedings by way

of appeal in this Court. I, therefore, certify in terms

of that section that, in the opinion of the Court. it would

be appropriate f o r the Attorney-General to authorise a

payment under the Act to the applicant in respect of the

costs incurred by him in relation to the proceedings by

way of appeal to this Court.

I certify ihat t h i s and the 4- W)

preceding pagss arc a t rue copy of the

Reasons for Judgment herein of his I-lonour

Mr. Justlce Newes

\ .o :L--=v

Associate

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