Boxx v Peden [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

Decision Date: 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 Act 2004 (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 v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Baini v The Queen [2012] HCA 59; 246 CLR 469 Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Byrnes v Barry [2004] ACTCA 24; 150 A Crim R 471 Clyne v Wrigley [1980] 1 NSWLR 599 Colonial Range Pty Ltd v CES-Queen (VIC) Pty Ltd [2016] VSCA 328 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Garnett v Bradley (1878) 3 App Cas 944 Hughes v Janrule Pty Ltd [2011] ACTCA 15; 177 ACTR 1 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Kelly v Apps [2000] FCA 687; 98 FCR 101 Knight v FP Special Assets Limited (1992) 174 CLR 178 Peden v Boxx [2016] ACTSC 86 Peden v Boxx (No 2) [2016] ACTSC 110 R v Fisher (No 2) [2011] ACTSC 100 R v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10 SD v New South Wales Crime Commission [2012] NSWSC 1642 The Appellants v Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133; 252 FLR 209 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Walsh v Law Society of New South Wales [1999] HCA 33; 198 CLR 73

Parties: Caleb Boxx (Appellant) Aaron Glen Peden (Respondent)

Representation: Counsel Ms M Jones (Appellant) Mr P Walker SC (Respondent) Solicitors ACT Director of Public Prosecutions (Appellant) Ben Aulich and Associates (Respondent)

File Number: ACTCA 23 of 2016

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 6 June 2016 Case Title: Peden v Boxx (No 2) Citation: [2016] ACTSC 110

Refshauge J:

1. I have had the considerable advantage of reading the reasons of Collier J. Her Honour has helpfully set out the background to the appeal. I agree with the orders her Honour proposes and with the reasons her Honour has given for those orders.

2. I also agree with the additional remarks of Penfold J.

3. I wish, however, to add brief comments on the respondent’s reliance on general provisions such as under s 218(1)(b) of the Magistrates Court Act 1930 (ACT) and r 5052(1)(e) of the Court Procedures Rules 2006 (ACT). In doing so, I confirm what I said in R v Fisher (No 2) [2011] ACTSC 100 at [59] and The Appellants v Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133; 252 FLR 209 at [137]-[138].

4. The purpose of such provisions is to make clear that the appellate court has a function to substitute its own order for that of the Court from which the appeal has been taken and that, apart from jurisdiction, there is no limit on the order to be made. Thus, it is a provision intended to distinguish the appellate power in these circumstances from that in cases such as SD v New South Wales Crime Commission [2012] NSWSC 1642 at [28] where the Court had only power in that case to make an order either affirming or setting aside the decision the subject of the review.

5. Such provisions do not provide jurisdiction. Were it otherwise, there would be no need for provisions such as r 5052(1)(a) of the Court Procedures Rules as that would be already encompassed within such powers.

6. These provisions grant a power to the Court. It is not an unconstrained power but is limited by the jurisdiction that, either by statute or at common law, the appeal court is given, as well as that from which the court from which the appeal is taken is given, if given to the appeal court by a provision such as r 5052(1)(a) of the Court Procedures Rules.

7. The distinction between the jurisdiction of a court to make orders or give judgments and the power of a court to make orders or give judgments is explained by the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commisison (1981) 148 CLR 150 at 161-2.

8. The point was made clearly and relevantly by Mason CJ in Jackson v Sterling Industries Ltd (1987) 162 CLR 612. In that case, s 23 of the Federal Court of Australia Act 1976 (Cth) conferred on the Federal Court power to make orders “as the Court thinks appropriate”. Sheppard J had made one of the, if not the first, Mareva injunction in Australia and the High Court was called upon to decide whether the Federal Court had the jurisdiction to do so.

9. Mason CJ, as with the other members of the majority, held (at 616), that the orders made by his Honour exceeded the power that was to be exercised. His Honour held, however, that it was not a nullity as having exceeded the jurisdiction of the Court, but amounted to an error of principle. His Honour explained:

I do not regard the making of the orders as transcending such jurisdictional limits as may be implied in the authority which s 23 of the Federal Court of Australia Act confers ...

10. Matters of jurisdiction include those matters which must be conferred by statute, such as the availability of an appeal (Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 202) and so with costs (Garnett v Bradley (1878) 3 App Cas 944 at 962). To read the provisions such as those relied on by the appellants as jurisdictional rather than as the grant of a power to be exercised within jurisdiction is an error. It seems likely that it was the basis of the error made by the Full Court of the Federal Court in Kelly v Apps [2000] FCA 687; 98 FCR 101 which error was accepted finally by the Court of Appeal in Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157.

11. Accordingly, neither s 218(1)(b) of the Magistrates Court Act nor r 5052(1)(a) of the Court Procedures Rules is a source of jurisdiction to make the order that the primary judge made.

12. I do not regard Clyne v Wrigley [1980] 1 NSWLR 599 as contrary to this approach. It was a different case and on different legislation. For example, jurisdiction was available there under s 125 of the Justices Act 1902 (NSW) though the actual power was exercised under s 5B of the Criminal Appeal Act 1912 (NSW). If that is not a correct interpretation of the decision, then I would respectfully disagree with the decision as it did not otherwise engage with the issue of jurisdiction.

13. Accordingly, I join in the orders proposed by the other members of the Court.

I certify that the preceding thirteen [13] paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 1 September 2017

Penfold J:

Introduction

14. I have had the benefit of reading the judgment of Collier J in draft, and rely on her explanation of the background to this appeal.

15. I agree with Collier J that the appeal should be allowed, and the costs order in favour of the Crown that was made by the primary judge should be set aside. There are several additional comments I wish to make about this matter. Approach to statutory interpretation

16. First, I agree with the appellant’s submission that s 141(2) of the Legislation Act 2001 (ACT) is relevant in considering the arguments made by the respondent to the extent that they draw heavily on the complex history of the relevant legislative provisions applicable from time to time in the ACT in the last 100-odd years.

17. Sections 140 and 141 are as follows:

140 Legislative context In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole. ... 141 Non-legislative context generally (1) In working out the meaning of an Act, material not forming part of the Act may be considered. ... (2) In deciding whether material not forming part of an Act should be considered in working out the meaning of the Act, and the weight to be given to the material, the following matters must be taken into account: (a) the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole; (b) the undesirability of prolonging proceedings without compensating advantage; (c) the accessibility of the material to the public. (3) Subsection (2) does not limit the matters that may be taken into account. (4) For subsection (2) (c), material in the register is taken to be accessible to the public. Note The register is the ACT legislation register (see dict, pt 2, def register).

18. In this appeal, the respondent relies on an interpretation of the Court Procedures Rules 2006 (ACT) (the Rules) and the Court Procedures Act 2004 (ACT) that is reached via:

(a) a review of provisions of numerous amendments of both Commonwealth and ACT legislation as in force, and as amended at various times since 1937;

(b) the inferring of obscure legislative intentions from a number of those amendments and re-enactments, including specifically the drawing of an inference that a substantially re-structured version of a provision (s 218 of the Magistrates Court Act 1930 (ACT) at [80] below) which had originally contained an explicit costs power of the kind asserted by the respondent (s 213 at [68] below) still conferred (albeit implicitly) the same costs power despite the removal of the explicit costs power; and

(c) consideration of various authorities (albeit in relation to legislation from other jurisdictions) about the interpretation of similar (rather than identical) provisions in similar (rather than identical) contexts.

19. Previous forms of relevant legislation do not raise quite the same issues as non-legislative material that might be seen as giving clues to the legislative intention reflected in the provisions under consideration (although I note that some versions of the legislation relied on by the respondent do not seem to be “in the register” that is accessible to the public). However, their use still raises fundamental issues about community access to the meaning (as distinct from the words) of legislation that affects the fundamental rights and obligations of members of the community.

20. In International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [42], French CJ, discussing the interpretation of provisions whose constitutional validity is in question, said:

The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.

(emphasis added)

21. The difficulties caused by applying a “counterintuitive judicial gloss” to legislation may have a particular significance in the current context.

22. In this appeal, the order made by the primary judge and defended by the respondent benefits an individual whose rights have been vindicated in the Supreme Court in a successful appeal from a decision made by a Magistrate in a criminal matter.

23. However, a decision in favour of the respondent in the current case would also expose appellants who are unsuccessful in the Supreme Court to costs orders in favour of the Crown. This would significantly increase the potential cost to an individual appellant of an appeal from a Magistrates Court decision in a criminal matter, and would expose unrepresented appellants to costs orders that they do not currently face. That is, it would add a significant obstacle to an individual’s right to challenge a finding of guilt made or a sentence imposed in the Magistrates Court.

24. If such an outcome is in fact the intention of the legislature, it should be implemented by explicit legislation. It should not be extracted, by the convoluted process described at [18] above, from a set of legislative provisions that on their face do not create such a situation.

Operation of r 5001

25. I agree that the primary judge fell into error in concluding that, for the purposes of the Rules, appellate proceedings (including those arising from criminal matters) “are deemed to be civil proceedings”.

26. His Honour did not explain the source of his conclusion that appellate proceedings “are deemed” to be civil proceedings, and I am not persuaded that it is appropriate to infer a deeming (especially one that involves such a degree of artificiality or fiction as is required in this case) in the absence of any explicit or necessarily implied deeming provision.

27. However, it must be said that the operation of r 5001, read with the definitions of relevant expressions in the Dictionary to the Rules, is in some respects quite obscure, and it is by no means obvious that civil proceedings are not intended to include all appellate proceedings. The relevant definitions are as follows:

appellate proceeding means a proceeding to which chapter 5 applies. Note For the proceedings to which ch 5 applies, see the following rules:  r 5011 (Application—pt 5.2)  r 5051 (Application—pt 5.3)  r 5070 (Application—div 5.3.2)  r 5081 (Application—div 5.3.3)  r 5310 (Application—div 5.4.2)  r 5331 (Application—div 5.4.3)  r 5401 (Application—divs 5.4.4-5.4.6)  r 5505 (Application—sdiv 5.4.7.2)  r 5520 (Application of div 5.4.3 to certain appeals by DPP)  r 5800 (Application—div 5.7.1)  r 5851 (Application of pt 5.8 to div 5.6.1 etc). civil proceeding does not include— (a) a criminal proceeding; or (b) a forensic proceeding. criminal proceeding means a proceeding against a person for an offence (whether summary or indictable); and (a) includes— (i) a committal proceeding; and (ii) a proceeding in relation to bail; and (iii) a proceeding in relation to sentence; but (b) does not include— (i) an appellate proceeding; or (ii) for division 4.3.2 (Supreme Court criminal proceedings—representation)—an application in relation to bail.

28. The definition of “criminal proceeding” in general terms confines the expression to first instance criminal matters, while explicitly including proceedings involving committals and bail proceedings; those are proceedings which, in certain circumstances and generally for historical reasons, may not be regarded as “pure” criminal proceedings. Appellate proceedings are explicitly excluded.

29. “Appellate proceedings” are those to which ch 5 applies, being appeals provided for in various parts of ch 5. Because of the definition of “appeal” in r 5050, those appeals include appeals to the Supreme Court from the Magistrates Court under s 207(1)(a) of the Magistrates Court Act and r 5051, but they do not include review appeals, reference appeals or questions referred. Thus, appeals to the Supreme Court from criminal proceedings in the Magistrates Court are, generally, appellate proceedings but (because of the definition of “criminal proceedings”) they are not criminal proceedings.

30. The definition of “civil proceeding” does not give any specific content to the defined expression, but simply excludes from it two particular kinds of proceedings, being criminal proceedings as defined and forensic proceedings (which relate to applications to carry out forensic procedures).

31. The interaction of these several definitions raises the difficult issue that is central to this appeal; this is because “civil proceeding” excludes first instance criminal matters, but says nothing about appellate proceedings involving criminal matters (for convenience referred to as criminal appeals). Nor does r 5001 (or any other provision) say anything about the incidents of criminal appeals.

32. There are two possible ways to interpret the definition of “civil proceeding”.

Broad meaning of “civil proceeding”

33. The definition could be read as intended to describe all proceedings except for those explicitly excluded; under this interpretation, “civil proceedings” would include all proceedings in courts except for first instance criminal proceedings, most bail applications, and forensic proceedings. In particular, it would include criminal appeals.

34. This interpretation of “civil proceeding” would justify the primary judge’s conclusion that all appellate proceedings are civil proceedings.

Narrow meaning of “civil proceeding”

35. The alternative, narrower, reading of “civil proceeding” is:

(a) that the definition relies on the “natural meaning” of the expression (that is, generally, proceedings that do not involve criminal offences); but

(b) that it explicitly excludes from that natural meaning (to the extent necessary) certain classes of matters as to the categorisation of which there may be some uncertainty (being matters of the kinds referred to at [28] above such as committals and bails that, presumably for the same reason, have been explicitly included in the definition of “criminal proceedings”).

36. The narrower interpretation of “civil proceeding” is supported by the form of the definition; a definition that simply excludes certain things from, or includes certain things in, the meaning of the defined term must be read as assuming, and relying on, a “natural meaning” of the defined term, to give it the core meaning from which the specified things are excluded or to which they are added.

37. That narrower interpretation, apart from confining the expression to matters that would generally be seen to fall within its natural meaning, would have the effect that there is a further class of proceedings not explicitly identified in ch 5 and not described in any defined term, being criminal appeals.

38. The failure to identify such proceedings, however, would have no particular significance, at least in ch 5 – the proposition in r 5001(1) is that the civil procedure rules generally do not apply to appellate proceedings, so it is only the proceedings to which certain civil procedure rules do apply that need to be identified specifically. That is, the failure to mention criminal appeals does not detract from the narrower interpretation of “civil proceeding”.

39. At least in the context of ch 5, it seems to me that there is a further reason for preferring the narrower interpretation of “civil proceeding”. That is that the “applied civil rules” (the rules that are expressly applied to appellate proceedings that are civil proceedings by r 5001(2)) include a number of rules that may well have a sensible operation in relation to a civil appeal but that would, on the face of it, have no sensible operation in relation to a criminal appeal (for instance, provisions for changing parties (div 2.4.3) and provisions relating to offers of compromise (pt 2.10)).

40. Furthermore, the narrower interpretation is supported by the words of r 5001(2), which applies the “applied civil rules” to “an appellate proceeding that is a civil proceeding” – an unnecessarily wordy description if all appellate proceedings are civil proceedings.

41. It is worth noting that this is not the first time the somewhat obscure structure of r 5001 has been raised in litigation (see for instance Hughes v Janrule Pty Ltd [2011] ACTCA 15; 177 ACTR 1 at [18] to [22], although the confusion arising in that case was perhaps less attributable to the form of the legislation than is the uncertainty that has been raised by this case).

Operation of s 218(1)(b), Magistrates Court Act

42. As well, I agree, and for the reasons given by Collier J, that s 218(1)(b) of the Magistrates Court Act does not grant a broad discretion to make any orders that the Supreme Court might consider appropriate in general terms, but confers a power to make appropriate orders to deal with the matter that has been appealed from the Magistrates Court.

Operation of r 5052

43. Next, I agree with Collier J, including for the reasons set out by her Honour, that r 5052(1)(e) does not provide a general power that includes the power to make orders in respect of the costs of the appeal.

44. During the hearing, a number of rules applicable to Supreme Court appeals were identified as possibly assuming the existence of a general power (to be found in r 5052(1)(e)) to make costs orders in appeals to the Supreme Court, including:

(a) r 5055 (security for costs is not required);

(b) r 5171 (costs orders may be made in civil proceedings where appeal is discontinued);

(c) r 5173 (a respondent who does not seek the strike-out of an incompetent appeal is not to be awarded costs, and may be ordered to pay the appellant’s costs);

(d) r 5174 (where an appeal is dismissed by consent, the consent orders may also include provision for the respondent’s costs to be paid, either in a stated amount or as assessed, or agreement that there be no order as to costs).

45. On closer examination, however, it is apparent that all of these rules have a sensible operation in the context of the costs powers available in appellate proceedings that are civil proceedings, and that apart from r 5170 which is explicitly limited to civil proceedings, they deal with costs orders that would be unavailable or, at least, highly unlikely to be considered in criminal appeals. In those circumstances, the Rules cannot be read as assuming or implying the existence of a general power to make costs orders in criminal appeals of the kind argued to be conferred by r 5052. Rule-making power

46. Finally, there is another basis on which to conclude that neither r 5052 or the Rules more generally are intended to permit the making of costs orders in relation to the costs of appeals under s 208(1)(a) of the Magistrates Court Act.

47. Section 7 of the Court Procedures Act 2004 (ACT) is relevantly as follows:

7 Rule-making power (1) The rule-making committee may make rules in relation to the following: (a) the practice and procedure of ACT courts, prescribed tribunals and their registries; (b) anything else mentioned in schedule 1 (Subject matter for rules).

48. Section 7(1)(a) is, on its face, extremely broad, but s 7(1)(b), given the reference to “anything else”, must be read as expanding s 7(1)(a) to some extent.

49. Schedule 1 is headed “Subject matter for rules”. The Schedule includes pt 1.2, headed “Civil proceedings”, in which is included the following item:

26 Costs costs, including, for example, the following: (a) security for costs; (b) entitlement to recover costs; (c) costs of parties in proceedings; (d) assessment of costs

50. Part 1.3 of the Schedule is headed “Criminal proceedings”. It contains one item, as follows:

30 Practice and procedure in criminal jurisdiction practice and procedure in the criminal jurisdiction of the Magistrates Court and Supreme Court (including any appellate jurisdiction) generally, including, for example, the following: (a) forms for proceedings; (b) beginning criminal proceedings, including indictments and informations; (c) appearance; (d) arraignments; (e) applications; (f) pleadings; (g) duties of lawyers and the court; (h) pre-trial matters, including pre-trial directions and rulings; (i) regulating hearings and trial proceedings; (j) expert evidence; (k) custody and inspection of exhibits; (l) recording of proceedings and access to records; (m) costs payable to defendants in particular circumstances; (n) inspecting registry files; (o) appeals, including appeals to the Supreme Court and Court of Appeal; (p) listing trials, sentences, applications and appeals for hearing, and setting hearing dates; (q) enforcement of decisions

51. Notably, item 26 applies only in relation to civil proceedings, and item 30(m), which applies only in relation to criminal proceedings, permits the making of rules about “costs payable to defendants in particular circumstances”.

52. No rules have been identified that do provide for costs payable to defendants in particular circumstances.

53. However, the conferral of a general power to make rules about costs in civil proceedings, and an explicit power to make rules for the payment of costs “to defendants in particular circumstances”, must, in my view, be read as excluding the making of a general provision for the payment of costs to, or indeed by, defendants in criminal matters (including criminal appeals). In particular, those provisions must limit the powers of the Supreme Court to order costs, and exclude a conclusion that the Supreme Court’s power to “make any other order that it considers appropriate” extends to a general power to order a party to a criminal appeal, whether a prosecutor or a defendant, to pay the other party’s costs of the appeal.

I certify that the preceding forty [40] paragraphs numbered [14] – [53] are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate:

Date: 1 September 2017

Collier J:

Introduction

54. This appeal raises an important issue of law in respect of the powers of the Supreme Court to award costs in appellate proceedings. The question before this Court is whether the Supreme Court has power to make an order in relation to the costs of an appeal involving a criminal offence from the Magistrates Court when the appeal is pursuant to div 3.10.2 of the Magistrates Court Act 1930 (ACT).

Background

55. The background facts are straightforward, and not in dispute. In Peden v Boxx [2016] ACTSC 86, the primary Judge quashed a finding of guilt entered by a Magistrate against the respondent Mr Peden for the offence of failing to vote contrary to s 73(1) of the Electoral Act 1992 (ACT). The prosecution against Mr Peden had been by a police officer, Mr Boxx, not the Crown. His Honour also ordered that unless either party sought a different order within 14 days, Mr Boxx was to pay Mr Peden’s costs of the appeal from the Magistrates Court and the proceedings in the Magistrates Court.

56. Mr Boxx took no issue with the proposed costs order to the extent that he was liable to pay Mr Peden’s costs of the proceedings in the Magistrates Court. However, on 10 May 2016, Mr Boxx notified the primary Judge that an order different in terms to those proposed by his Honour would be sought, on the basis that there was no power in the Court to order costs where an appeal against a conviction imposed in the Magistrates Court was upheld. Both parties filed written submissions.

Decision of primary Judge

57. His Honour made the costs order he had proposed, and on 6 June 2016 delivered reasons relating to that order: Peden v Boxx (No 2) [2016] ACTSC 110.

58. His Honour accepted that, as a general proposition, the Supreme Court has no inherent power to award costs to a successful appellant in an appeal from the Magistrates Court. His Honour noted that prior to its relocation to the Court Procedures Act 2004 (ACT), s 23 of the Supreme Court Act 1933 (ACT) provided a clear source of power for the Court to award costs in criminal proceedings where the Crown was not involved as a party. Section 23 had provided:

(1) The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction. (2) Subject to any other law of the Territory (including rules of court), the court may determine – (a) the amount of costs of and incidental to proceedings in the court, including the administration of an estate or trust; and (b) by whom and to what extent such costs are to be paid. (3) Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court.

59. The Court of Appeal in Byrnes v Barry [2004] ACTCA 24; 150 A Crim R 471 (“Byrnes”) held that s 23 of the Supreme Court Act granted full power to the Court to order costs in any proceedings in the Court, civil or criminal, except in criminal proceedings to which the Crown was a party.

60. Section 23 became s 134 of the Court Procedures Act, however s 134 expired by operation of s 139 of the Court Procedures Act (introduced by the Justice and Community Safety Legislation Amendment Act (No 4) 2005 (ACT)) when the Court Procedures Rules 2006 (ACT) commenced. His Honour observed:

61. 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 Procedures 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).

61. As there was no inherent power in the Court to order costs in criminal appeals, his Honour then turned to the question whether there was any other basis on which the Court could order costs in such appeals.

62. His Honour concluded there was. In summary, his Honour reasoned:

(a) Chapter 2 r 1721 of the Court Procedures Rules gives the Court broad powers to make costs orders in proceedings.

(b) However – r 5001(1) of the Court Procedures Rules provides that, except as provided by r 5001 or another rule in that chapter, ch 2 (Civil proceedings generally) does not apply to an appellate proceeding. Rule 5001(2) provides that the applied civil rules apply, with any necessary changes, to an appellate proceeding that is a civil proceeding.

(c) The effect of r 5001 is that the power to award costs extends to appellate proceedings only if the appellate proceedings are civil proceedings.

(d) The Dictionary to the Court Procedures Rules defines civil proceedings and criminal proceedings.

(e) The effect of the definition of the terms “civil proceeding” and “criminal proceeding” in the Court Procedures Rules is to deem appellate proceedings in criminal matters to be civil proceedings. In particular his Honour observed:

7 …. 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.

(emphasis added)

63. His Honour concluded that r 1721 provided the statutory basis for the Court to make the costs order proposed.

Appeal

64. In appealing the decision of the primary Judge the appellant claimed the following errors of principle:

(i) His Honour erred in interpreting the definitions of “appellate proceeding”, “civil proceeding” and “criminal proceeding” in the Court Procedures Rules 2006 (ACT) (“the Rules”). Specifically, by interpreting these definitions to have the effect of deeming appellate proceedings arising from criminal proceedings as civil proceedings.

(ii) His Honour erred in interpreting r 5001 of the Rules. Specifically, by interpreting r 5001(2) as applying the applied civil rules to appellate proceedings arising from criminal proceedings.

(iii) His Honour erred in interpreting r 1721 of the Rules. Specifically, by interpreting r 1721 as providing His Honour with the power to order the appellant to pay the respondent’s costs of the appeal in the Supreme Court.

65. The respondent filed a notice of contention in which he claimed that the power to award the costs of the appeal was also available to his Honour under s 218 of the Magistrates Court Act and r 5052 of the Court Procedures Rules.

66. Both parties were represented and filed written submissions.

Submissions of the parties

67. In summary, the appellant submitted as follows:

(a) Both appeals and costs are creatures of statute.

(b) The three types of “criminal appeals” from the Magistrates Court to the Supreme Court within pt 3.10 of the Magistrates Court Act are:

(i) Appeals to which div 3.10.2 (Appeals in criminal matters) applies

(ii) Reference appeals under div 3.10.2A (Reference appeals in criminal matters)

(iii) Review appeals under div 3.10.3 (Review appeals in criminal matters).

(c) The appeal before his Honour was an appeal pursuant to s 208(1)(b) of the Magistrates Court Act. Section 208(1)(b) falls within div 3.10.2 of the Magistrates Court Act.

(d) Orders which can be made by the Supreme Court in a div 3.10.2 appeal are set out in s 218 of the Magistrates Court Act.

(e) Section 218 is declaratory in nature. It does not confer power on the Supreme Court to award costs of an appeal.

(f) Division 3.10.2 of the Magistrates Court Act does not confer on the Supreme Court an express power to award the costs of criminal appeals brought under that Division. This can be contrasted with the situation in respect of reference appeals brought under div 3.10.2A (s 219AC(3)) and review appeals under div 3.10.3 (s 219F(8)). It similarly follows that s 218(1)(b) does not include an implied power to award costs in respect of appeals under div 3.10.2.

(g) The relocation of s 23 of the Supreme Court Act to s 134 of the Court Procedures Act, and the expiry of s 134 on 1 July 2006 with the commencement of the Court Procedures Rules, meant that his Honour could rely on no express power to order the costs of a div 3.10.2 appeal.

(h) The Court Procedures Act clearly envisages the promulgation of Court rules that will apply to appeals in civil proceedings and Court rules that will apply to appeals in criminal proceedings. (i) The Court Procedures Rules create and state rules for at least four types of proceedings, namely civil proceedings (chs 2 and 3), criminal proceedings (ch 4), appellate proceedings (ch 5) and forensic proceedings (ch 4 pt 4.4)

(j) Rule 5001(2) refers to appellate proceedings that are also civil proceedings. To be an appellate proceeding that is a civil proceeding, the proceeding must be able to satisfy the definitions of both types of proceeding.

(k) Rule 5171, which deals with appeals that are discontinued, confirms that the Court Procedures Rules distinguish between appeals arising in civil proceedings and appeals arising in criminal proceedings, with the civil rules only providing a power to award costs in the former.

(l) An appellate proceeding that arises from a criminal proceeding in the Magistrates Court for an offence, and which is brought under the criminal appeals division of the Magistrates Court Act, falls within the definition of criminal proceeding in the Court Procedures Rules.

68. The respondent submitted, in summary:

(a) Section 218(1)(b) of the Magistrates Court Act, which empowers the Supreme Court in appeals from the Magistrates Court to give judgment or make orders that it considers appropriate, provides the Supreme Court with the power to make an order for costs of an appeal.

(b) Historically, appeals from the Court of Petty Sessions of the Australian Capital Territory (the precursor to the Magistrates Court) were to the High Court of Australia (pt XI Court of Petty Sessions Ordinance 1930 (Cth)). Section 216 of the Court of Petty Sessions Ordinance empowered the High Court on appeal to make any order it considered just. Further, s 26 of the Judiciary Act 1903 (Cth) gave the High Court jurisdiction to award costs in all matters in that Court. “Matters” was defined by s 2 of the Judiciary Act as including any proceeding in a Court (logically, including criminal proceedings and criminal appeals).

(c) The Supreme Court Act commenced operation on 1 January 1934. As originally enacted, s 15 of that Act provided:

Costs (1) The Supreme Court and the Judge sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction. (2) Subject to the Rules of Court and to the express provisions of any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and to what extent the costs are to be paid. (3) Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the Court.

(d) In 1937 the Court of Petty Sessions Ordinance (No 2) 1937 (Cth) abolished the right of appeal from the Court of Petty Sessions to the High Court and substituted a right of appeal to the Supreme Court. A new s 213 was enacted, which provided: The Supreme Court on appeal may make any order thereon (including an order as to the costs of and incidental to the appeal) as it thinks just, and the order shall have effect as if it were a judgment of the Court of Petty Sessions and may be enforced by that Court accordingly. (e) Section 213 was intended itself to confer a power on the Supreme Court to make costs orders.

(f) Pursuant to the Court of Petty Sessions Ordinance 1972 (Cth) s 213 was repealed and re-enacted as s 218, with the words in parentheses omitted. This omission made no material difference to the operation of the section. In 1972 there was no indication that there was to be a material change to the power to award costs. In light of its legislative history s 218 should properly be regarded as a source of power to the Supreme Court to award costs in summary criminal appeals.

(g) Notwithstanding the 1972 legislation the limitations and uncertainties in s 23 of the Supreme Court Act were not removed. The precursor to s 23, s 15, did not confer on the Supreme Court the same wide discretion to award costs in criminal causes as the High Court had had under s 26 of the Judiciary Act.

(h) Against this background the expressio unius argument of the appellant, comparing the express conferral of a power on the Supreme Court to make costs orders in relation to reference appeals under div 3.10.2A and review appeals under div 3.10.3, falls away.

(i) Part 5.3 of the Court Procedures Rules regulates appeals to the Supreme Court from summary convictions by a Magistrate: r 5051 item 7. Where the Magistrates Court Act and the Court Procedures Rules conflict, the Act prevails. It follows that the Magistrates Court Act and the Court Procedures Rules work together to govern the powers and procedures of the Supreme Court when hearing a s 208 appeal.

Consideration

69. The submissions of the respondent attest to the history of interesting, if convoluted, legislative developments in the Australian Capital Territory referable to costs in appellate proceedings, including criminal appeals to the Supreme Court from the Magistrates Court. They do not, however, answer the compelling arguments of the appellant that the appeal in this case ought be allowed.

70. I have formed this view for the following reasons.

A criminal appeal is not a “civil proceeding”

71. Section 7 and sch 1 item 26 of the Court Procedures Act empowers the Rule-making committee established under s 9 of the Act to make court rules in respect of costs, including:

(a) security for costs,

(b) entitlement to recover costs,

(c) costs of parties in proceedings, and

(d) assessment of costs.

72. In particular, r 5001 (1) of the Court Procedures Rules states clearly that ch 2 of those Rules does not apply to an appellate proceeding unless the appellate proceeding is also a civil proceeding. Importantly, ch 2 includes r 1721, which provides:

Costs—general rule (1) The costs of a proceeding or of an application in a proceeding are in the discretion of the court. (2) The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders. Note 1 Application in a proceeding is defined in r 6006. Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.

73. Relevantly, the Dictionary to the Court Procedures Rules defines “appellate proceeding”, “civil proceeding”, “criminal proceeding” and “forensic proceeding” in the following terms:

appellate proceeding means a proceeding to which chapter 5 applies. Note: For the proceedings to which ch 5 applies, see the following rules:  r 5011 (Application – pt 5.2)  r 5051 (Application – pt 5.3)  r 5070 (Application – div 5.3.2)  r 5081 (Application – div 5.3.3)  r 5310 (Application – div 5.4.2)  r 5331 (Application – div 5.4.3)  r 5401 (Application – divs 5.4.4-5.4.6)  r 5505 (Application – sdiv 5.4.7.2)  r 5520 (Application of div 5.4.3 to certain appeals by DPP)  r 5800 (Application – div 5.7.1)  r 5851 (Application of pt 5.8 to div 5.6.1 etc) civil proceeding does not include— (a) a criminal proceeding; or (b) a forensic proceeding. criminal proceeding means a proceeding against a person for an offence (whether summary or indictable); and (a) includes— (i) a committal proceeding; and (ii) a proceeding in relation to bail; and (iii) a proceeding in relation to sentence; but (b) does not include— (i) an appellate proceeding; or (ii) for division 4.3.2 (Supreme Court criminal proceedings— representation)—an application in relation to bail. forensic proceeding means a proceeding in relation to an application to carry out a forensic procedure under the Act or the Crimes Act.

74. In the primary judgment his Honour concluded that the effect of the definition of “civil proceedings” and “criminal proceeding” in the Court Procedures Rules was to deem appellate proceedings in criminal matters to be civil proceedings. I note that the respondent made no submissions supporting this finding of his Honour. Interestingly, the appellant filed detailed submissions claiming that:

(a) an appellate proceeding that arises from a criminal proceeding in the Magistrates Court for an offence;

(b) that is brought under the criminal appeals division of the Magistrates Court Act; and

(c) where the Supreme Court’s jurisdiction to hear the appeal depended on a definition of “order” which includes a conviction or sentence;

also squarely fell within the definition of “criminal proceeding” in the Court Procedures Rules. The appellant submitted further that the definitions of criminal proceeding and civil proceeding excluded such an appeal from being characterised as an appellate proceeding which was also a civil proceeding.

75. I do not agree with the reasoning of his Honour, and I have some difficulty with the submissions of the appellant on this point.

76. That a proceeding can be simultaneously an appellate proceeding and a civil proceeding is consistent with the terms of rule 5001 of the Court Procedures Rules and the definition of “civil proceeding” in the Dictionary to the Court Procedures Rules. Specifically, r 5001 contemplates that a proceeding can be both an appellate proceeding and a civil proceeding; further the definition of “civil proceeding” excludes criminal proceedings and forensic proceedings but does not exclude appellate proceedings. In contrast, the definition of criminal proceeding in the Dictionary specifically excludes appellate proceedings – to that extent it appears that, at least for the purposes of the Court Procedures Rules, a matter cannot simultaneously be a criminal proceeding and an appellate proceeding.

77. The effect of the definition of “criminal proceeding” in the Court Procedures Rules is that an appeal from a decision of the Magistrates Court which involved an offence (whether summary or indictable) and thus arose from a criminal proceeding, is not a “criminal proceeding” – it is an appellate proceeding, albeit in a criminal matter. I do not follow his Honour’s reasoning that the effect of the definitions of civil proceeding and criminal proceeding in the Court Procedures Rules is to deem appellate proceedings in criminal matters to be civil proceedings within the meaning of the Rules. There is no basis on which a criminal appeal defaults to become a “civil proceeding” under the Court Procedures Rules.

78. Similarly, I do not agree with the position adopted by the appellant that such an appeal is both an appellate proceeding and a criminal proceeding under the Court Procedures Rules. As I have already observed, this contention is not compatible with the definition of “criminal proceeding” in the Rules, which specifically excludes appellate proceedings.

79. In summary – to the extent that the Court Procedures Rules empowers the Supreme Court to make a costs order in an appellate proceeding, the Supreme Court may do so only if the appellate proceeding is also a civil proceeding. While the appeal before his Honour was an appellate proceeding, it clearly was not also a civil proceeding as it involved an appeal from a determination of the Magistrates Court in a criminal prosecution. Section 218, Magistrates Court Act

80. Section 218 of the Magistrates Court Act provides:

(1) On an appeal to which this division applies, the Supreme Court may— (a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or (b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or (c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate. (2) A judgment or order of the Supreme Court under subsection (1)(a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.

81. Although his Honour did not, in the primary judgment, rely on s 218 of the Magistrates Court Act as a source of power, in his notice of contention the respondent submitted that s 218 confers power on the Supreme Court to award costs in summary criminal appeals.

82. I do not accept this proposition.

83. In interpreting legislation the key task of the Court is to examine the language of the statute. As the majority explained in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27:

47 This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

(footnotes omitted)

(Cf Baini v The Queen [2012] HCA 59; 246 CLR 469 at [14]-[15], 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 at [120], Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 at [96], Colonial Range Pty Ltd v CES-Queen (VIC) Pty Ltd [2016] VSCA 328 at [48]).

84. Reviewing the history of relevant legislation can be, of course, instructive in understanding its rationale, and assisting in its interpretation.

85. It was not in dispute that the appeal in this case was made pursuant to s 208(1)(b) of the Magistrates Court Act (being an appeal to which div 3.10.2 of that Act applies), and that in determining such appeals s 218(1)(b) of the Magistrates Court Act gives the Supreme Court power “to give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order”.

86. While the respondent’s submission that s 218(1)(b) gives the Court broad discretion to make orders in respect of appeals appears superficially attractive, closer examination of s 218 quickly reveals the flaws in this aspect of the respondent’s case.

87. First, as his Honour correctly observed, there is no inherent power in the Supreme Court in an appeal from the Magistrates Court to award costs to a successful appellant: Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [17]-[19], Walsh v Law Society of New South Wales [1999] HCA 33; 198 CLR 73 at [50] and Byrnes. Indeed, as a general proposition the court’s power to award costs in an appeal must be found in a statute: Dawson J in Knight v FP Special Assets Limited (1992) 174 CLR 178 at 193. This point was not in dispute.

88. Second, historically there have been express statutory powers for the Supreme Court to make costs orders in appeals, including in criminal matters (subject to cases where the Crown was a party). Successive legislative provisions, namely s 15 of the Supreme Court Act, subsequently s 23 of the Supreme Court Act, and later s 134 of the Court Procedures Act, were all drafted in terms expressly granting the Supreme Court that particular power. It is clear however that s 134, being the last link in that particular legislative chain, expired on 1 July 2006, and was not re-enacted in any form. To that extent, since 2006 there has been no express statutory source of power in the Australian Capital Territory for the Supreme Court to award costs in appeals in criminal matters. As I noted earlier in this judgment, this can be contrasted with the position in relation to costs in appeals in civil matters, where the Court Procedures Rules specifically empowers the Supreme Court to make such orders. It is reasonable to draw the conclusion that this lacuna was either deliberate, or an unfortunate oversight in the drafting of the Court Procedures Rules. It does not necessarily follow that the power impliedly exists.

89. Third, in my view it is clear that s 218 of the Magistrates Court Act does not provide a statutory source of power in the terms claimed by the respondent, either expressly or impliedly. This is because:

90. It appears that until 1 June 2006, s 218 and its predecessor legislation co-existed with express legislative provisions such as s 23 of the Supreme Court Act and s 134 of the Court Procedures Act, which specifically granted the Supreme Court power to order costs in appeals (including criminal appeals). In those circumstances it is difficult to accept that, following the expiry of s 134, Parliament intended s 218 to be the sole source of power for the Supreme Court to make costs orders in appellate proceedings.

Reference and review appeals

91. Significantly, the absence of an express power in the Supreme Court to order costs of the appeal in criminal appeals brought under div 3.10.2A of the Magistrates Court Act may be contrasted with the power of the Supreme Court to make costs orders in reference appeals under div 3.10.2A and review appeals under div 3.10.3 of the Magistrates Court Act. In such circumstances, the existence of express powers to award costs in reference and review appeals strongly suggests that no implied power exists to award costs in div 3.10.2 appeals. Contrary to the submissions of the respondent, I consider that this is a case where the expressio unius est exclusio alterius rule clearly applies. I note a similar view was reached, albeit in different circumstances, by the Court of Appeal of New South Wales in R v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10 at [10]-[12].

Rule 5052

92. Finally, in his notice of contention the respondent relied on r 5052 of the Court Procedures Rules as a further source of power for his Honour to make the order the subject of this appeal. Rule 5052 provides:

Appeals to Supreme Court—general powers (1) For an appeal to the Supreme Court, the court— (a) has all the powers and duties of the court or tribunal that made the order appealed from; and (b) may draw inferences of fact; and (c) may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and (d) may make any of the following orders: (i) an order confirming, amending or setting aside the order of the court or tribunal appealed from; (ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and (e) may make any other order that it considers appropriate. (2) If the Supreme Court orders that it will receive further evidence, and the evidence is to be given by an expert witness, the following rules apply, with necessary changes, to the appeal: • division 2.12.1 (Expert evidence generally) • division 2.12.2 (Multiple expert witnesses for same issue) • rule 1242 (Supplementary expert reports) • rule 1243 (Expert evidence to be covered by expert report) • rule 1244 (Expert reports admissible as evidence of opinion etc) • rule 1245 (Requiring attendance of expert for cross-examination etc) • rule 1246 (Tender of expert report). (3) Subrule (1)(c) is subject to rule 5193 (Further evidence on appeal to Supreme Court— Magistrates Court Act 1930, s 214).

93. Examining r 5052, it appears that the only potential source of power referable to costs in criminal appeals to the Supreme Court from the Magistrates Court could be r 5052(1)(e), which allows the Court to “make any other order that it considers appropriate”. Orders within the scope of sub-rr (1)(a)-(c) are clearly limited by the jurisdiction of the Magistrates Court, and sub-r (1)(d) is referable to the power of the Supreme Court to confirm, amend or set aside the original order. Rules 5052(2) and 5052(3) relate to evidence on appeals do not assist the respondent.

94. In my view, although r 5052(1)(e) is expressed in broad terms, it does not assist the respondent in identifying a source of power for the Supreme Court to make costs orders in criminal appeals. This is because:

(a) As Refshauge J observed in R v Fisher (No 2) [2011] ACTSC 100 at [59], a provision which permits a Court to make “the orders it considers appropriate” is not a grant of unlimited power, but must refer to an order that is otherwise within the power of the Court to make (Cf The Appellants v Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133; 252 FLR 209 at [137]-[138]).

(b) Rule 5052(1)(e) should be read in the context of the introductory words of r 5052, the limited nature of orders authorised by sub-rr 5052(1)(a)-(d), and the nature of rr 5052(2) and (3). Rule 5052 primarily relates to allowing the Supreme Court to correct orders made at first instance. An interpretation of r 5052(1)(e) relating to costs in the appeal from the first instance decision appears outside the scope of that provision.

(c) Rule 5052(1)(e) must be considered in light of r 5001, which provides that ch 2 of the Court Procedures Rules (which empowers the Court to make costs orders) does not apply to appellate proceedings unless the appellate proceeding is also a civil proceeding. Interpreting r 5052(1)(e) as impliedly empowering the Supreme Court to make costs orders in criminal appeals from the Magistrates Court would be inconsistent with the apparent intention of r 5001.

(d) The prospect of implying into r 5052(1)(e) power in the Supreme Court to make a costs order in a criminal appeal must also be read in the context of other rules, namely rr 5170, 5171, 5173 and 5174, which provide the Supreme Court power to order costs in specific circumstances. The statutory context indicates that r 5052(1)(e) is not a general power to make costs orders, unlike r 1721 (which provides that costs of a proceeding or of an application in a proceeding are in the discretion of the Court) and now-repealed s 23 of the Supreme Court Act. If r 5052(1) conferred such a general power, the powers to make costs orders in specific circumstances (as in for example r 5173 and r 5174) would be otiose.

95. To this extent, r 5052 can be distinguished from the legislative provision considered by the Court of Criminal Appeal in Clyne v Wrigley [1980] 1 NSWLR 599 where the language of the legislation was broad, the statutory context was very different to that before this Court (being referable to powers of the appellate Court in a case stated), and the Court of Criminal Appeal found that it would be anomalous and inconvenient to have no power to determine, in an appropriate case, whether the costs of proceedings before it should be borne by a particular party (at 602).

Conclusion

96. In my view the appeal should be allowed, and the following orders made.

(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 Mr Aaron Glen Peden in his appeal from the Magistrates Court to the Supreme Court were ordered to be paid by Mr Caleb Boxx, be set aside.

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

I certify that the preceding forty-three [43] paragraphs numbered [54] to [96] are a true copy of the Reasons for Judgment of her Honour Justice Collier.

Associate:

Date: 1 September 2017