Boxx v Peden

Case [2017] ACTCA 39


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Boxx v Peden

Citation:

[2017] ACTCA 39

Hearing Date:

4 November 2016

DecisionDate:

1 September 2017

Before:

Refshauge, Penfold and Collier JJ

Decision:

(a)    The appeal be allowed.

(b)    The order of the primary Judge in Peden v Boxx (No 2) [2016] ACTSC 110, to the extent that the costs of Aaron Glen Peden in his appeal from the Magistrates Court to the Supreme Court were ordered to be paid by Caleb Boxx, be set aside.

(c)    The application by Aaron Glen Peden to the primary judge for costs be dismissed.

Catchwords:

APPEAL – APPEAL FROM THE SUPREME COURT – Costs order – statutory basis for costs order – costs order made against the Director of Public Prosecutions – person entitled to be enrolled for an electorate was not enrolled on any roll – offences under the Electoral Act 1992 (ACT).

PROCEDURE – COSTS – Power of Supreme Court to make costs order in favour of successful appellant against conviction recorded in Magistrates Court – provision conferring power on court hearing appeal to “make any other order that it considers appropriate” – where other powers conferred on court are to deal with the appeal before it – no explicit conferral of power to make costs orders in favour of successful appellant in criminal appeal to Supreme Court.

PROCEDURE – COSTS – Definitions in Court Procedures Rules 2006 (ACT) – “appellate proceeding” – “civil proceeding” – “criminal proceeding” – whether a criminal appeal is a civil proceeding.

STATUTES – ACTS OF PARLIAMENT – Interpretation – applying “counterintuitive judicial gloss” undesirable – convoluted process of interpretation – impact on community access to meaning of legislation affecting fundamental rights and obligations of community members.

Legislation Cited:

Court of Petty Sessions Ordinance 1930 (Cth), s 216, pt XI

Court of Petty Sessions Ordinance (No 2) 1937 (Cth), s 213
Court of Petty Sessions Ordinance 1972 (Cth), s 218
Court Procedures Act2004 (ACT), ss 7, 7(1)(a), 7(1)(b), 9, 134, 139, sch 1, items 9, 26, 30
Criminal Appeal Act 1912 (NSW), s 5B
Electoral Act 1992 (ACT), s 73(1)
Federal Court of Australia Act 1976 (Cth), s 23
Judiciary Act 1903 (Cth), ss 2, 26
Justice and Community Safety Legislation Amendment Act (No 4) 2005 (ACT)
Justices Act 1902 (NSW), s 125
Legislation Act 2001 (ACT), ss 140, 141, 141(2)
Magistrates Court Act 1930 (ACT), pt 3.10, s 207(1), div 3.10.2, ss 208(1), 218, 218(1)(b), div 3.10.2A, s 219AC, div 3.10.3, s 244

Supreme Court Act 1933 (ACT), ss 15, 23

Court Procedures Rules 2006 (ACT), ch 2, div 2.4.3, pt 2.10, r 1721, chs 3, 4, pt 4.4, ch 5, r 5001, pt 5.3, rr 5050, 5052, 5052(1)(a), 5052(1)(e), 5055, 5170, 5171, 5173, 5174, Dictionary

Cases Cited:

AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368; 79 MVR 57

Alcan (NT) Alumina Pty Ltd…

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AGLC
Boxx v Peden [2017] ACTCA 39
Case
[2017] ACTCA 39
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of the Australian Capital Territory by Caleb Boxx against a costs order made by a single judge of that court. The costs order had been made in favour of Aaron Glen Peden, who had successfully appealed his conviction for offences under the *Electoral Act 1992* (ACT) in the Magistrates Court. The central dispute revolved around the Supreme Court's power to award costs against the Director of Public Prosecutions in a criminal appeal from the Magistrates Court.

The legal issues before the Full Court of the Supreme Court were whether the Supreme Court possessed the statutory power to make a costs order in favour of a successful appellant against the Director of Public Prosecutions in a criminal appeal from the Magistrates Court. This involved an examination of the relevant provisions of the *Court Procedures Act 2004* (ACT) and the *Court Procedures Rules 2006* (ACT), particularly the definitions of "appellate proceeding," "civil proceeding," and "criminal proceeding," and whether a criminal appeal could be characterised as a civil proceeding for the purposes of awarding costs.

The Court reasoned that the Supreme Court's power to make orders on appeal was generally confined to dealing with the appeal itself. It found no explicit conferral of power to make costs orders in favour of a successful appellant against the Director of Public Prosecutions in a criminal appeal. The Court also noted the undesirable nature of applying "counterintuitive judicial gloss" to statutory interpretation, particularly when it impacted community access to the meaning of legislation affecting fundamental rights. The Court concluded that the primary judge had erred in making the costs order against Mr Boxx.

Consequently, the appeal was allowed. The order of the primary judge, to the extent that it directed Mr Boxx to pay the costs of Mr Peden's appeal from the Magistrates Court to the Supreme Court, was set aside. Mr Peden's application for costs to the primary judge was dismissed.

Orders

Orders of the court

(a) The appeal be allowed.

(b) The order of the primary Judge in Peden v Boxx (No 2) [2016] ACTSC 110, to the extent that the costs of Aaron Glen Peden in his appeal from the Magistrates Court to the Supreme Court were ordered to be paid by Caleb Boxx, be set aside.

(c) The application by Aaron Glen Peden to the primary judge for costs be dismissed.

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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