Boxx v Peden

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.