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 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…
Keep reading for free
Create a free CaseChat account to read Bluett v Popplewell (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] ACTMC 11
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.