Bluett v Popplewell (No 2) - [2018] ACTMC 11

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bluett v Popplewell & Ors (No 2)
Citation:	[2018] ACTMC 11
Last submissions:	15 June 2018
DecisionDate:	3 July 2018
Before:	Magistrate Theakston
Decision:	See [38]
Catchwords:	COSTS – Magistrates Court criminal proceedings - order for costs – pro bono – indemnity principle – onus of proof – apportionment of costs
Legislation Cited:	Court Procedures Act 2004 (ACT) ss 7, 9, Schedule 1 Court Procedures Rules 2006 (ACT) Magistrates (Summary Proceedings) Act 1975 (Vic) s 97 (b) Magistrates Court Act 1930 (ACT) ss 29, 85, 97, 122, 131, 244
Regulations Cited:	Magistrates Court Regulations 2009 (ACT) ss 4 (1)(b), 4 (3)(b)-(c), 5
Cases Cited: Parties:	Baker v Magistrates Court of the Australian Capital Territory and Another [2013] ACTSC 73 Bluett v Popplewell & Ors [2018] ACTMC 2 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 James v Surf Rd Nominees Pty Ltd [No 2] [2005] NSWCA 296 Latoudis v Casey [1990] 170 CLR 534 McNamara v Bao San & Ors [2010] NSWSC 809 Michael Kelly v Elisabeth Apps [1999] ACTSC 142 Oshlack v Richmond River Council [1998] CLR 72 R v Bui [2011] ACTSC 102 Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55 Trevorrow v State of South Australia (No 7) [2008] SASC 5 Urbaniak-Bak v Prail [2014] ACTSC 171 Valencic v Jordan [2017] ACTSC 120 Waters v P C Henderson (Aust) Pty Limited (Unreported, NSW Court of Appeal, Kirby P, Mohoney and Priestly JJA, 6 July 1994) Wentworth v Rogers [2006] NSWCA 145 Grant Bluett (Informant) John Joseph Popplewell (First Defendant) Kenneth Clancy (Second Defendant) Kerry Bronterre John Mellor (Third Defendant)
Representation:	Counsel Mr J Walker (Informant) Mr G Mansfield (First, Second and Third Defendant)
Solicitors Director of Public Prosecutions (Informant) O’Connor Harris & Co Barristers and Solicitors (First, Second and Third Defendant)
File Numbers:	CC 2715 of 2017 CC 2721 of 2017 CC 2722 of 2017

MAGISTRATE THEAKSTON:

Background

These are my reasons in relation to an application for costs by the successful defendants.

The three defendants were each charged, and plead not guilty to a single summary offence. Following the hearing I found each offence not proved and dismissed the same: see Bluett v Popplewell & Ors [2018] ACTMC 2. The defendants have subsequently applied for a costs order in the terms of the order endorsed by a full court of the ACT Supreme Court in Baker v Magistrates Court of the Australian Capital Territory and Another [2013] ACTSC 73. That order read:

The informant pay the defendant’s costs of the proceedings in an amount agreed by the parties pursuant to s 4(1)(b) of the Magistrates Court Regulations 2009 or, in default of the filing an agreement under s 5 of that Regulation within 14 days of the date of this order, in an amount assessed by the Registrar in accordance with the scale of costs as applied under s 4(3)(b) and (c) of the Regulation.

The application is opposed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACTMC 11
Decision Date: 3 July 2018

CaseChat Overview and Summary

Bluett v Popplewell (No 2) involved a dispute between the plaintiff and the defendant, which was brought before the Magistrates Court. The nature of the dispute centred on an order for costs in criminal proceedings, specifically concerning the allocation of costs on an indemnity basis. The plaintiff, who was acting pro bono, sought an order for costs under the indemnity principle.

The court was required to determine whether the plaintiff's pro bono status warranted a departure from the usual onus of proof in apportioning costs. Additionally, the court needed to assess whether it was appropriate to order costs on an indemnity basis in light of the plaintiff's voluntary and altruistic representation. The central issue was whether the defendant should bear the full costs of the proceedings, given the plaintiff's non-profit motive.

In delivering the judgment, the court held that the pro bono nature of the plaintiff's representation did not automatically shift the onus of proof in the context of costs apportionment. The court emphasised that the indemnity principle applied to ensure that costs reflect the actual expenses incurred by the successful party. The court concluded that while the plaintiff's voluntary representation was commendable, it did not entitle the plaintiff to costs on an indemnity basis without proper justification. The court found that the defendant should bear the costs of the proceedings, but not on an indemnity basis, as the plaintiff had not met the necessary threshold for such an order.

Orders

Orders of the court

See [38]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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