Wolter v Broomhall (No 2) - [2023] ACTSC 343

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Wolter v Broomhall (No 2)
Citation:	[2023] ACTSC 343
Hearing Date:	17 November 2023
Decision Date:	17 November 2023
Reasons Date:	21 November 2023
Before:	Baker J
Decision:	I make no order as to costs.
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Application for costs – appeal against conviction in the Magistrates Court – appeal upheld on narrow ground and remitted to Magistrates Court for redetermination – whether Supreme Court has jurisdiction to award costs of the earlier proceedings in the Magistrates Court under ss 218 and 244 of the Magistrates Court Act 1930 (ACT) – costs award not appropriate as final determination has not been made – no order for costs made.
Legislation Cited:	Magistrates Court Act 1930 (ACT) ss 218, 244
Cases Cited:	Boxx v Peden [2017] ACTCA 39; 324 FLR 39 Wolter v Broomhall [2023] ACTSC 331
Parties:	Dylan Wolter ( Appellant) Lisa Broomhall ( Informant)
Representation:	Counsel T Taylor ( Appellant) M Howe ( Informant)
Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Informant)
File Number:	SCA 11 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 15 February 2023 Case Title: Broomhall v Wolter Court File Numbers: CC2021/9349; CC2021/9351; CC2022/9051; CC2021/9350; CC2021/9353

BAKER J:

1․In a judgment delivered on 16 November 2023, Wolter v Broomhall [2023] ACTSC 331, (“the appeal judgment”), I upheld the appellant’s appeal against his convictions for the following offences:
(a)Drive while disqualified as a repeat offender (CC2021/9349).
(b)Drive while disqualified as a repeat offender (CC2021/9351).
(c)Aggravated dangerous driving as a repeat offender (CC2022/9051).

2․I upheld the appeal on a narrow ground, namely, that the Magistrate failed to give adequate reasons for a specific aspect of his finding of guilt.
3․Consequent upon that finding, the appellant seeks an order for costs under ss 218 and 244 of the Magistrates Court Act 1930 (ACT).
4․Section 244 of the Magistrates Court Act provides as follows:
244 Costs in criminal matters
(1)The power of the court to award costs is subject to the following:
(a)if the court makes a conviction or order in favour of the informant—it may order that the defendant must pay to the informant the informant’s costs;
(b)if the court dismisses the information, or makes an order in favour of the defendant—it may order that the informant must pay to the defendant the defendant’s costs;
(c)if a matter is adjourned—the court may order that the costs of and caused by the adjournment be paid by any party to any other party;
(d)costs ordered to be paid—
(i) must be awarded in the way prescribed by regulation; and
(ii) may be recovered under the rules about the enforcement of judgments of the court in civil proceedings.

(2)Subject to any order of the court, the expenses of a person who attends at court to give evidence or to produce documents must be allowed to the person (whether or not they have been examined…

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.

Continue reading Wolter v Broomhall (No 2)

Details

AGLC: Wolter v Broomhall (No 2) [2023] ACTSC 343
Case: [2023] ACTSC 343
Decision Date

CaseChat Overview and Summary

In Wolter v Broomhall (No 2) [2023] ACTSC 343, the appellant Dylan Wolter sought costs from the respondent, Lisa Broomhall, under sections 218 and 244 of the Magistrates Court Act 1930 (ACT). The appellant had successfully appealed his conviction in the Magistrates Court, and the appeal was remitted back to the Magistrates Court for redetermination. The central issue before the Supreme Court was whether it had jurisdiction to award costs of the earlier proceedings in the Magistrates Court, and if so, whether it was appropriate to do so in these circumstances.

The court considered the scope of its powers under section 218 of the Magistrates Court Act, which allows the Supreme Court to make orders on appeals, and section 244, which provides for the award of costs in criminal matters. The court noted that while section 218(1)(b) empowers the Supreme Court to make an order that could have been made by the Magistrates Court, it does not extend to the costs of the appeal itself. The court also referenced the decision in Boxx v Peden [2017] ACTCA 39; 324 FLR 39, which held that section 218 does not provide a statutory source of power for the Supreme Court to order costs in appeals. Furthermore, the court held that even if it had jurisdiction to award costs, it was not appropriate to do so as the proceedings had not reached a stage where a costs order would be warranted. The appeal was upheld on a narrow ground, and the proceedings were remitted to the Magistrates Court, which may lead to a redetermination of the matter.

In conclusion, the Supreme Court held that it did not have jurisdiction to award the costs of the appeal, and it was not appropriate to make an order for costs in the Magistrates Court proceedings as they were yet to be finalised. The court made no order as to costs, leaving it open for the appellant to seek costs if the proceedings in the Magistrates Court are ultimately resolved in his favour.

Orders