Peden v Boxx (No 2)

[2016] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Peden v Boxx (No 2)

Citation:

[2016] ACTSC 110

Date Last Submissions Received: 

25 May 2016

DecisionDate:

6 June 2016

Before:

Burns J

Decision:

The respondent is to pay the appellant’s costs of the proceedings in the Magistrates Court and of the appeal in this Court.

Catchwords:

PROCEDURE – Costs – costs order made in appellate proceedings from Magistrates Court – order that unsuccessful party pay costs of the appeal – where costs order made against the Director of Public Prosecutions – whether Court has power to award costs to a successful appellant in an appeal from Magistrates Court – statutory basis for costs order – costs awarded.

Legislation Cited:

Court Procedures Act 2004 (ACT) ss 134, 139

Court Procedure Rules 2006 (ACT) rr 1721, 5001
Justice and Community Safety Legislation Amendment Act 2005 (No 4) (ACT)
Supreme Court Act 1933 (ACT) s 23

Supreme Court of Judicature Act 1890 (53 and 54 Vic c 44)
ss 4, 5

Cases Cited:

Byrnes v Barry (2004) 150 A Crim R 471

Fleming v The Queen (1998) 197 CLR 250
Peden v Boxx [2016] ACTSC 86

Walsh v Law Society of New South Wales (1999) 198 CLR 73

Parties:

Aaron Glen Peden (Appellant)

Caleb Boxx (Respondent)

Representation:

Counsel

Mr S Whybrow (Appellant)

Mr T Buckingham (Respondent)

Solicitors

Ben Aulich & Associates (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 30 of 2015

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Hunter

Date of Decision:         21 May 2015

Case Title:  Boxx v Peden

Court File Number:       CC14/09142

BURNS J:

1. On 10 May 2016, I upheld the appellant’s appeal, set aside the finding of guilt made by the Magistrate, and dismissed the charge against the appellant on the ground that it did not allege an offence known to law: Peden v Boxx [2016] ACTSC 86. At the same time I made an order that the respondent pay the appellant’s costs of the appeal and of the proceedings in the Magistrates Court, unless either party sought a different costs order within 14 days. I subsequently received written submissions by the respondent within that 14 day time period. The appellant indicated via email to my Associate that there was no reason for me to interfere with the orders I made on 10 May 2016 and did not seek to put forward any substantive written submissions. I informed the parties that I was content to deal with the issue on the material that had been provided to me and reserved my decision in relation to costs. This is that decision.

The respondent’s submissions

1. The respondent takes no issue with my order that he pay the appellant’s costs of the proceedings in the Magistrates Court, but submits that I have no power to order him to pay the appellant’s costs of the appeal. In brief, the respondent submits that the inherent jurisdiction of this Court does not extend to the making of a costs order where an appeal against a conviction imposed in the Magistrates Court is upheld, and there are no statutory provisions specifically permitting such an order to be made.

1. The respondent submitted that this Court has no inherent power to award costs to a successful appellant in an appeal from the Magistrates Court. I have no hesitation in accepting that submission. At common law, both appeals and costs orders were creatures of statute: Fleming v The Queen (1998) 197 CLR 250 at 258-259; Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [50]; and Byrnes v Barry (2004) 150 A Crim R 471 (Byrnes v Barry). Prior to its relocation to the Court Procedures Act 2004 (ACT) (the Court Procedures Act) by the Justice and Community Safety Legislation Amendment Act 2005 (No 4) (ACT), s 23 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) provided a clear source of power to award costs in appeals in criminal proceedings not involving the Crown as a party: Byrnes v Barry. The relocated s 23 became s 134 of the Court Procedures Act, and would likewise have provided a source of power to make such a costs order until s 134 expired (by operation of s 139 of the Court Procedures Act, effectively upon the commencement of the Court Procedure Rules 2006 (ACT) (the Court Procedure Rules)). As demonstrated by French J (as his Honour then was) in Byrnes v Barry, s 23 of the Supreme Court Act was in similar form to earlier provisions in the UK, relevantly commencing with ss 4 and 5 of the Supreme Court of Judicature Act 1890 (53 and 54 Vic c 44). In Byrnes v Barry the plurality (Crispin P and Connolly J) expressly approved the observation of the primary judge (Higgins CJ) that “s 23(1) grants full power to this Court to order costs in any proceedings in the Court, civil or criminal. However, s 23(3) expressly excludes from the apparently wide scope of s 23(1) criminal proceedings in which the Crown is a party...”

1. There is no reason to doubt that s 134 of the Court Procedures Act had a similar effect.

1. Upon the commencement of the Court Procedures Rules, s 134 of the Court Procedures Act expired, so that, from that time, it could no longer be a source of power to make a costs order in appeal proceedings such as the present. Chapter 2 of the Court Procedures Rules makes provision for costs to be awarded in civil proceedings in r 1721, which provides that the costs of a proceeding are in the discretion of the court. Appellate proceedings are governed by Chapter 5 of the Court Procedure Rules. Rule 5001 provides:

Appellate proceedings—application of ch 2 generally

(1) Except as provided by this rule or another rule in this chapter, chapter 2 (Civil proceedings generally) does not apply to an appellate proceeding.

(2) The applied civil rules apply, with any necessary changes, to an appellate proceeding that is a civil proceeding.

(3) In this rule:

applied civil rules means the following:

·      rule 30 (Who may start and carry on a proceeding)

·      rule 72 (Originating process—solicitor’s statement about filing)

·      division 2.4.3 (Changing parties)

·      division 2.4.4 (Included or changed parties—future conduct of

proceedings).

·     division 2.4.9 (People with a legal disability)

·     part 2.9 (Preservation of rights and property)

·     part 2.10 (Offers of compromise)

·     part 2.16 (Judgment and other orders)

·     part 2.17 (Costs)

·     division 2.20.2 (Taking of accounts)

·     division 2.20.3 (Making of inquiries)

·     part 2.21 (Representation by solicitors)

·     part 2.22 (Miscellaneous—ch 2).

1. The respondent submits that the present proceedings are criminal proceedings, and not civil proceedings, so that r 5001(2) applies so as not to pick up the power to award costs found in r 1721. This submission overlooks the relevant definitions of civil and criminal proceedings in the Dictionary to the Court Procedure Rules:

·     civil proceeding, does not include a criminal proceeding;

·     criminal proceeding means a proceeding against a person for an offence (whether summary or indictable); and

(a)   includes–

(i)     a committal  proceeding;

(ii)    a proceeding in relation to bail; and

(iii)   a proceeding in relation to sentence; but

(b)   does not include–

(i)     an appellant proceeding;

...

·     appellate proceeding means a proceeding to which Chapter 5 applies.

Consideration

1. The present appeal is clearly appellant proceedings. The effect of the definition of civil proceedings and criminal proceeding in the Court Procedure Rules is to deem appellate proceedings in criminal matters to be civil proceedings. The Court Procedures Rules divides proceedings into two categories: civil proceedings and criminal proceedings. Appellate proceedings to which Chapter 5 apply are deemed, for the purposes of the application of the rules, to be civil proceedings. It follows that r 5001(2) has the opposite effect contended for by the respondent. Rule 5001(2) does not operate to exclude the application of the applied civil rules, including r 1721 which is found in Part 2.17, to the present proceedings; it operates to apply the provisions of Part 2.17 to the proceedings.

1. Rule 1721 provides the statutory basis for the costs order which I indicated I proposed to make in my reasons of 10 May 2016. The respondent has not sought to argue the merits of that proposed order, but has challenged my power to make it insofar as it applied to the appeal proceedings. For the reasons I have given, I am satisfied that I have the power to make the proposed order.

Order

1. I order that the respondent pay the appellant’s costs of the proceedings in the Magistrates Court and of the appeal in this Court.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate: D. Scuteri

Date: 6 June 2016