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Decision: The appeal is dismissed.

Category: Principal Judgment

Catchwords: CRIMINAL LAW – Particular Offences – driving with a prescribed concentration of alcohol in blood or breath – s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – where the sentencing Magistrate declined to reduce the automatic disqualification period. PRACTICE AND PROCEDURE – Appeal – jurisdiction – where Supreme Court ruled it had no jurisdiction to hear the appeal – jurisdiction of the Supreme Court to hear an appeal – whether whether order “imposed” by the Magistrates Court – s 208(1)(d) of the Magistrates Court Act 1930 (ACT) – meaning of “order to disqualify” – s 208(1)(g) of the Magistrates Court Act 1930 (ACT) – jurisdiction under s 20 of the Supreme Court Act 1933 (ACT).

Legislation Cited: Court of Petty Sessions Ordinance 1930-1971 (ACT), s 208A(1) Crimes Legislation Amendment Act 2012 (No 2) (ACT) Human Rights Act 2004 (ACT), s 22(4) Legislation Act 2001 (ACT), ss 138, 139, 141, 142 Magistrates Court Act 1930 (ACT), ss 207, 207(1), 207(2), 208, 208(1)(d), 208(1)(g), 219B, 219B(1)(a), 244 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 19(1), 26, 32 Road Transport (General) Act 1999 (ACT), s 61B Supreme Court Act 1933 (ACT), ss 11, 20, 29(1)(a)

Cases Cited: ACT DPP v McDowall [2002] ACTSC 72 Attorney-General’s Application (No 3 of 2002) (2004) 61 NSWLR 305 Barac v Thexton [2008] ACTSC 137 Bloxham v Wyte (2013) 278 FLR 365 Evans v Shiels (2004) 185 FLR 1 FAI Properties Pty Limited v Apostolopoulos [2002] ACTSC 58 FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 Kelly v Apps (2000) 98 FCR 101 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Loughton v Smorhun (2014) 67 MVR 157 Nelson v Heil [2013] ACTSC 11 Project Blue Sky v ABA [1998] 194 CLR 355 R v Forsyth (2013) 281 FLR 62 Rich v ASIC (2004) 220 CLR 129 Rose v Snape [2000] ACTSC 115 Scott v Wynants (2009) 4 ACTLR 13 Sleiman v Murray (2009) 231 FLR 224 Spurr v Fishpool (1972) 20 FLR 174 Travini v Starczewski (2009) 169 ACTR 1 Walsh v Law Society of New South Wales (1999) 198 CLR 73 Westbrook v The Queen (Unreported, Australian Capital Territory Supreme Court, Crispin J, 18 July 2000)

Parties: Luke Burow (Appellant) The Queen (Respondent)

Representation: Counsel Mr P Edmonds (Appellant) Mr J White SC (Respondent)

Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 11 of 2015

Decision under appeal: Court: ACT Supreme Court Before: Refshauge J Date of Decision: 20 February 2015 Case Title: Burow v Hoyer Citation: [2015] ACTSC 21

THE COURT

Background

1. On 28 November 2013 the appellant was stopped by police on Northbourne Avenue, Canberra City, after being observed driving on the wrong side of the road. His breath was tested for alcohol and found to contain 0.154 grams of alcohol per 210 litres of breath. He was issued a Suspension Notice under s 61B of the Road Transport (General) Act 1999 (ACT), and charged with an offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). He was summonsed to appear in the Magistrates Court.

2. His case was heard on 1 May 2014. He pleaded guilty to driving as a first offender in the level 4 alcohol range, being the highest range. The maximum penalty for that offence was a fine of $2,800 and nine months imprisonment.

3. The Alcohol and Drugs Act prescribes automatic periods of disqualification from driving, which vary according to the level of alcohol in an offender’s blood at the time of the offence and whether it is a first offence. In the case of a first offender with a level 4 reading, the automatic disqualification period is three years. Section 32 of the Alcohol and Drugs Act permits the court dealing with the offence to reduce that period. If no order is made reducing the automatic disqualification period, that period remains the effective period of disqualification.

4. When the appellant’s case was heard, the appellant’s solicitor submitted to the sentencing magistrate that the case was an appropriate one in which to reduce the otherwise automatic period of disqualification. The magistrate convicted him and imposed a fine of $900. However, she declined to reduce the automatic disqualification period, saying: “I make no order in respect to the period of disqualification, being satisfied that the case falls within what can be properly described as the usual case”.

5. In the court below, Refshauge J held that he had no jurisdiction to entertain an appeal from that refusal (Burow v Hoyer [2015] ACTSC 21).

6. Before this court the appellant submitted that Refshauge J had been wrong in finding that he lacked jurisdiction to hear an appeal from a refusal to vary the disqualification period. He sought an order that the matter be remitted to his Honour to be dealt with according to law.

The traffic legislation

7. The traffic legislation relevant to this appeal is contained in ss 19, 26 and 32 of the Alcohol and Drugs Act. Those sections relevantly provide:

19 Prescribed concentration of alcohol in blood or breath (1) A person commits an offence if the person – (a) has been – (i) the driver of a motor vehicle on a road or road related area; or (ii) the driver trainer in a motor vehicle on a road or road related area; and (b) has, within the relevant period, the prescribed concentration of alcohol in the person’s blood or breath. (2) Strict liability applies to subsection (1). (3) A person convicted of an offence against subsection (1) is punishable in accordance with section 26. ....

26 Fines and imprisonment – s 19 offences ... (2) If a person other than a special driver is convicted of an offence against section 19 (1) and the convicting court finds that the concentration of alcohol in the person’s blood or breath was at level 2, 3, or 4, the person is punishable – (a) for a first offender – by the maximum penalty specified in table 26, column 3 opposite the relevant level; and (b) for a repeat offender – by the maximum penalty specified in table 26, column 4 opposite the relevant level. ... Table 26

column 1 column 2 column 3 column 4 item alcohol maximum penalty – maximum penalty – concentration first offender repeat offender level

1 level 1 5 penalty units 10 penalty units

2 level 2 5 penalty units 10 penalty units

3 level 3 10 penalty units, 10 penalty units, imprisonment for 6 imprisonment for 6 months or both months or both

4 level 4 15 penalty units, 20 penalty units, imprisonment for 9 imprisonment for 12 months or both months or both

32 Automatic driver licence disqualification – first offenders, s 19 (1) This section applies only to first offenders. ... (3) If a court convicts a person other than a special driver of an offence against section 19 (1) and finds that the concentration of alcohol in the person’s blood or breath was at level 2, 3, or 4, the person is automatically disqualified from holding or obtaining a driver licence for – (a) the period mentioned in the item applying to that level in table 32, column 4; or (b) if the court orders a shorter period of disqualification that is not less than the period mentioned in that item, column 3 – the shorter period. Table 32

column 1 column 2 column 3 column 4 item alcohol minimum default concentration disqualification disqualification level

1 level 1 1 month 3 months

2 level 2 2 months 6 months

3 level 3 3 months 12 months

4 level 4 6 months 3 years

Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.

8. Thus, as a first offender with a level 4 reading, the appellant was subject to a minimum period of disqualification of six months, but with an automatic period of disqualification of three years.

9. Refshauge J held that where a magistrate declines to vary the automatic period of disqualification, the disqualification is not imposed by the court but by the legislation: there can only be an appeal against an order: so the appellate jurisdiction of the Supreme Court does not empower a judge of that court to vary an automatic disqualification period.

10. For reasons which appear below, we have reached the view that the appeal should be dismissed, and that Refshauge J correctly found that he had no jurisdiction to hear the appeal.

The appellate jurisdiction of the Supreme Court

11. As is trite law, appeals are creations of statute: “Accordingly it is always important... to identify the ... powers of the court or tribunal conducting [them]”: Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [50]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [57].

12. The Supreme Court is given specific jurisdiction to hear appeals from the Magistrates Court in criminal cases by ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act), which are as follows:

207 Jurisdiction of Supreme Court (1) The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrate Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others: (a) appeals to which division 3.10.2 (Appeals in criminal matters) applies; (b) reference appeals under division 3.10.2A (Reference appeals in criminal matters); (c) review appeals under division 3.10.3 (Review appeals in criminal matters). (2) This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court. 208 Appeals to which div 3.10.2 applies (1) Each of the following appeals is an appeal to which this division applies: (a) an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead): (i) the person whose fitness to plead was decided; (ii) anyone who appeared at the proceeding in which the decision was made; (iii) anyone else with the leave of the court; (b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375; (c) an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375; (d) an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section 374 or section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed; (e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005: (i) part 3.2 (Sentences of imprisonment); (ii) part 3.3 (Non-custodial sentences); (iii) part 3.4 (Non-association and place restriction orders); (iv) part 3.5 (Deferred sentence orders); (v) part 3.6 (Combination sentences); Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16)

(f) an appeal from an order of the court under the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders – amendment and discharge); (g) an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum. Note Automatic disqualification provision – see the Road Transport (General) Act 1999, s 61A. (2) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.

13. Other legislation concerning the Supreme Court’s appellate jurisdiction relevant to this appeal is s 20 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), which is as follows:

20 Jurisdiction and powers of Supreme Court (1) The court has the following jurisdiction: (a) all original and appellate jurisdiction that is necessary to administer justice in the Territory; (b) jurisdiction conferred by a Commonwealth Act or a law of the Territory. (2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.

The appellant’s submissions

14. The appellant submitted that the Supreme Court has jurisdiction under one or more of s 208(1)(d) and (g) of the Magistrates Court Act, and s 20 of the Supreme Court Act, to hear an appeal from a magistrate’s refusal to shorten an automatic disqualification period.

15. Mr Edmonds, who appeared for the appellant, argued that from her reasoning, it is clear the learned magistrate made a deliberate and considered decision that a three year disqualification period had been the appropriate one. He argued that that decision had involved the exercise of a discretion which formed an integral part of the total sentence. He referred to Travini v Starczewski (2009) 169 ACTR 1 at [63]; Scott v Wynants (2009) 4 ACTLR 13 at [23] and Attorney-General’s Application (No 3 of 2002) (2004) 61 NSWLR 305 at [116] for that proposition.

16. Mr Edmonds submitted that s 208(1)(d) of the Magistrates Court Act provides jurisdiction because the appeal was:

... an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act... whether or not the person appeals against the conviction....

17. He submitted that a disqualification from driving is a relevant penalty: Rich v ASIC (2004) 220 CLR 129; and the appellant had been convicted of an offence and dealt with summarily under the Magistrates Court Act. He conceded there was an issue as to whether the period of disqualification had been imposed by the Magistrates Court, rather than the Alcohol and Drugs Act, but submitted the disqualification flowed from the conviction, and the magistrate had directed the conviction, so she had imposed the resultant penalty.

18. Mr Edmonds argued that Refshauge J was wrong insofar as he found to the contrary of that proposition in Barac v Thexton [2008] ACTSC 137 at [21] and Travini v Starczeski at [19].

19. He also referred us to and relied on Loughton v Smorhun (2014) 67 MVR 157, where Refshauge J held that he had jurisdiction where the magistrate had not varied the disqualification period but had used the words “I disqualify you for three years”. Mr Edmonds argued the outcome of a jurisdictional argument should not be permitted to be decided by such an inconsequential matter as whether the period of disqualification is pronounced by a magistrate as opposed to remaining the default position because a magistrate declines to alter it.

20. Alternatively, Mr Edmonds argued that s 208(1)(g) of the Magistrates Court Act provides the jurisdiction. He submitted that Refshauge J’s decisions in cases such as Barac v Thexton and Travini v Starczewski had prompted the ACT Legislative Assembly to pass the Crimes Legislation Amendment Act 2012 (No 2) (ACT) which was intended to provide a right of appeal for those in the position of the appellant.

21. Mr Edmonds in particular drew the Court’s attention to the Explanatory Statement to the Bill according to which:

This clause amends section 208(1) of the Magistrates Court Act 1930 to clarify that it is possible for a defendant to appeal an order to disqualify a person from holding a driver licence under an automatic disqualification as defined by section 61A of the Road Transport (General) Act 1999. The purpose of this amendment is to provide that a person subject to a default disqualification period is not in a different position with regards to appeal rights than a person who has had a greater/lesser period of disqualification imposed and that the disqualification can be appealed in both cases. This amendment will not affect the requirement of the appeal court to comply with the statutory minimum disqualifications provided for by automatic disqualification provisions.

22. As is apparent, the legislation as amended does not obviously reflect the assertion in the second quoted paragraph of the Explanatory Statement. Mr Edmonds accepted that was so, because s 208(1)(g) uses the expression “order to disqualify”, and, as we have observed, there was no order disqualifying his client from driving. But he urged the court to adopt a legislative intention he said was reflected in the Explanatory Statement.

23. However, the first quoted paragraph of the Explanatory Statement specifies, as does the legislation, that the appeal remains an appeal from “an order”. The Explanatory Statement appears to indicate some confusion on the part of its author about the nature of the problem apparently intended to be solved and the means adopted in an attempt to do so, but this does not require that confusion to be incorporated into the legislation.

24. In case the court were inclined to adopt a literal approach to construction, Mr Edmonds submitted that the literal approach is no longer good law and the purposive approach ought be adopted: ss 138 and 139 of the Legislation Act 2001 (ACT). He argued for a remedial construction, observing that it is no longer necessary to find ambiguity before adopting that approach. Although, as he conceded, the starting point for construction must be the words themselves (Project Blue Sky v ABA [1998] 194 CLR 355), he submitted that was not the end of the inquiry. In that context he referred us to ss 141 and 142 of the Legislation Act 2001 (ACT).

25. Mr Edmonds submitted that the interpretation he urged for is reasonably open, having regard to the ordinary use of the word “order”, and that we should read the subparagraph as though it covers a disqualification resulting indirectly from or following upon the recording of a conviction.

26. He conceded the disqualification may more sensibly be thought of as having its source in the relevant legislation rather than the conviction, but submitted it is open to us to treat it as defined and qualified by the road transport legislation, but nonetheless imposed by the Court. He submitted that such an interpretation is consistent with the right recognised in s 22(4) of the Human Rights Act 2004 (ACT), namely that:

Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

27. Such an interpretation, he said, should accordingly be adopted where, as here, it is reasonably open. The difficulty with this argument is that, by definition, the penalty in question is not imposed by a court, whose actions are in general appropriately susceptible to review or appeal by a higher court, but by the legislature acting through legislation. Reviews by “higher courts” of the legislative consequences of judicial action are not obviously addressed by s 22(4) of the Human Rights Act.

28. Mr Edmonds alternatively argued that the Supreme Court has jurisdiction under s 20(1)(a) of the Supreme Court Act. He relied for that proposition on Kelly v Apps (2000) 98 FCR 101, an ex tempore decision of the Full Court of the Federal Court of Australia, and submitted that Refshauge J, who considered it had been decided per incuriam, was wrong not to have followed it.

29. In his argument Mr Edmonds relied especially on s 20(1)(a) of the Supreme Court Act, namely the words “all original and appellate jurisdiction that is necessary to administer justice in the Territory”. He relied too on s 207(2) of the Magistrates Court Act which requires that s 207(1) of that Act “does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court.”

30. Mr Edmonds submitted that s 20 should be read as a residual source of appellate jurisdiction which may be used where no other grant of jurisdiction exists. This, he argued, would give effect to the rights of parties which are recognised by law, including the right of appeal against a sentence recognised by s 22(4) of the Human Rights Act. He relied on Kelly v Apps for its broad interpretation of s 20. Consideration

Did s 208(1)(d) of the Magistrates Court Act provide jurisdiction for the appeal?

31. We are not persuaded s 208(1)(d) gave the court the relevant jurisdiction. As Mr Edmonds correctly said, the issue when attempting to find jurisdiction there is whether the Magistrate imposed the disqualification period. In our view what the Magistrate did was to decline to vary the period imposed by statute. It was the statute which imposed the disqualification period, not the magistrate. The fact that the magistrate consciously decided not to reduce the period of disqualification does not detract from that reasoning.

32. It follows that, contrary to Mr Edmond’s submission, Refshauge J correctly construed s 208(1)(d) in Barac v Thexton and Travini v Starczewski.

33. Although Mr White submitted that Loughton v Smorhun was wrongly decided, it is unnecessary for this court to consider that submission, since the magistrate appealed from here explicitly declined to make an order.

Did s 208(1)(g) of the Magistrates Court Act provide jurisdiction for the appeal?

34. We are not persuaded that s 208(1)(g) provided the relevant jurisdiction. The Explanatory Statement shows it may have been the intention of the author of the Explanatory Statement for the amendment to s 208(1)(g) to provide appeal rights to an offender where a magistrate has declined to vary a period of disqualification. But that is not what the statute says (or indeed what the Explanatory Statement unequivocally says). As the plurality said in Project Blue Sky v ABA at [78]:

...the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.

35. In Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39] the Court said:

Legislative history and extrinsic materials cannot displace the meaning of the statutory text.

36. Here the statutory text in s 208(1)(g) shows an intention to give a right of appeal:

...from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision...if the order is for a longer period than the minimum.

37. In the case of the appellant, no such order was made. The clear meaning of the statute is to provide rights to those subjected to orders by the Magistrates Court to reduce automatic periods of disqualification. There may be very good reason why the legislature has chosen to restrict rights of appeal only to those who are subject to orders.

38. Sections 138 and 139 Legislation Act 2001 (ACT) provide:

138 Meaning of working out the meaning of an Act – pt 14.2 In this part: working out the meaning of an Act means – (a) resolving an ambiguous or obscure provision of the Act; or (b) confirming or displacing the apparent meaning of the Act; or (c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or (d) finding the meaning of the Act in any other case. 139 Interpretation best achieving Act’s purpose (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act. Note The Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

39. We see no ambiguity or any reason of obscurity to displace the apparent meaning of s 208(1)(g). There is nothing manifestly absurd or unreasonable about applying that meaning. Mr Edmonds’ arguments would have us apply a meaning to the section which it simply does not have. It is true the author of the Explanatory Statement might have expected the amendment to have a different outcome, but it is not unusual for extrinsic materials such as that to differ from the accompanying legislation, as is acknowledged in expressions of principle such as in Federal Commissioner of Taxation v Consolidated Media Holdings.

Did the appellant have a right of appeal under s 20 of the Supreme Court Act 1933 (ACT)?

40. In our view Mr Edmonds’ argument based on s 20 and Kelly v Apps should be rejected. We respectfully agree with Refshauge J that Kelly v Apps was decided per incuriam.

41. In Kelly v Apps a magistrate ordered the informant in a criminal case to pay the costs of a successful accused under s 244 of the Magistrates Court Act. There was power in s 219B(1)(a) of the Magistrates Court Act to permit the Supreme Court to review an order dismissing certain informations. But there was no specific power to review an order of a magistrate that an informant pay an accused’s costs.

42. At that time ss 207 and 219B of the Magistrates Court Act provided:

207 Jurisdiction of Supreme Court (1) The appellate jurisdiction of the Supreme Court with respect to decisions of the Magistrate Court under this Act (other than a decision under Part 10) extends to the hearing and determination of the following appeals and to no others, namely: (a) appeals to which Division 2 applies; and (b) appeals from decisions of the Magistrates Court by way of orders to review made in accordance with Division 3. (2) Nothing in this Part limits the operation of any other Act that makes provisions with respect to the appellate jurisdiction of the Supreme Court.

219B Appeals by way of orders to review (1) Each of the following is a decision of the Magistrates Court from which an appeal by way of order to review may be made in accordance with this Division: (a) an order of the Magistrates Court dismissing an information dealt with by that court under Part 7 or 7A of this Act or under section 477 of the Crimes Act; (b) a conviction by the Magistrates Court for an offence dealt with by that court under Part 7 or 7A of this Act or under section 477 of the Crimes Act; (c) an order made under section 113 or 114 of this Act in proceedings dealt with by the Magistrates Court under Part 7 of this Act or under section 477 of the Crimes Act; (e) a decision of the Magistrates Court not to commit a person to the Supreme Court for sentence pursuant to section 92A; (f) a decision of the Magistrates Court to dispose of a case summarily pursuant to subsection 477 (6) or (7) of the Crimes Act; (g) a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under section 90A, Part 7 or 7A or section 255 of this Act or section 477 of the Crimes Act. (2) For the purposes of paragraph (1) (g), a reference to a sentence or penalty shall be read as including a reference to a decision order made under subsection 556A (1) or (3), 556B (1), 556C (4) or (7) or 556D (1) or (3) of the Crimes Act, whether or not the person is convicted of the offence.

43. No provision elsewhere in the Magistrates Court Act provided for appeals against costs orders in that court’s criminal jurisdiction.

44. The informant sought an order to review the decision in the Supreme Court. The judge before whom the application came, Miles CJ, held that he had no power to review the order. He ordered the dissolution of an order nisi to review the decision.

45. At that time appeals from single judges of this court were to the Full Federal Court. The appeal from Miles CJ was heard on 19 May 2000 before Gallop, Wilcox and Marshall JJ. For reasons delivered by Wilcox J, Gallop and Marshall JJ concurring, their Honours allowed the appeal, finding that the Supreme Court had power to review the costs order under s 20(1)(a) of the Supreme Court Act.

46. Wilcox J at [16]-[17] said that he had difficulty with an argument that specific power to appeal from dismissal of an information also gave the Supreme Court power to review an accompanying costs order, but he considered the words in s 20(1)(a) of the Supreme Court Act to be extremely broad. He said (at [18]-[19]):

They include all appellate jurisdiction that is necessary to administer justice in the Territory. The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory. It cannot ... be disputed that the making of a costs order that ought not to have been made ... is a wrong in the administration of justice in the Territory and that it is ... appropriately the subject of the jurisdiction of the Supreme Court under s 20(1)(a).

47. His Honour referred then to the appeal provisions in s 219B of the Magistrates Court Act and concluded:

If, indeed, it is the case that there is no jurisdiction under s 219B of the Magistrates Court Act, in relation to an order for costs following a dismissal, then this is par excellence an example of the utility of s 20(1)(a) of the Supreme Court Act. In my view, the Court should hold that the Chief Justice did have jurisdiction in this matter in relation to costs.

48. In his concurring judgment Marshall J said, inter alia:

In my view s 207(2) of the Magistrates Court Act, when read with s 20(1)(a) of the Supreme Court Act 1933 (ACT), gave the Supreme Court relevant jurisdiction on the question of costs.

49. As we have noted, Kelly v Apps was delivered ex tempore. It is not apparent from the authorised report of the case that the court had the benefit of argument on all relevant legislation and authorities. Most notably, it does not appear that the court was referred to Spurr v Fishpool (1972) 20 FLR 174, which had long stood as the leading authority on the appellate jurisdiction of the Supreme Court concerning costs orders against informants in criminal cases.

50. In Spurr v Fishpool the court, consisting of Fox, Blackburn and Connor JJ, heard an appeal from what was then the Court of Petty Sessions. A driver had been charged with driving under the influence of intoxicating liquor and negligent driving. The informations were dismissed. The magistrate ordered the informant to pay costs. The informant appealed to the Supreme Court. Section 208A(1) of the Court of Petty Sessions Ordinance 1930-1971 (ACT) provided that subject to sub-section (3) a person aggrieved by an order of a court of petty sessions (other than an order for commitment) could, within twenty-one days after the order was made, appeal to the Supreme Court against the order. By subsection (3) an appeal did not lie from an order unless it:

(a) [was] given or pronounced for or in respect of a sum or matter at issue exceeding, or of a value exceeding, an amount of One hundred dollars; or

(b) involves directly or indirectly a claim, demand or question to or respecting any property or civil right exceeding, or of a value exceeding, One hundred dollars.

51. The court held that the order for costs in the Court of Petty Sessions was not relevantly an order “in respect of a sum or matter at issue”. Accordingly the appeal was found to be incompetent. The court had the benefit of argument from counsel and delivered a reserved decision.

52. At that time the predecessor to s 20 of the Supreme Court Act was s 11, which provided:

53. The Supreme Court – (a) has, subject to this or any other Act or to any Ordinance, in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of the State of New South Wales had in relation to that State immediately before the first day of January, One thousand nine hundred and eleven; (b) has such jurisdiction, both civil and criminal, and whether original or otherwise, as is from time to time vested in the Supreme Court by Act or by Ordinance; and (c) has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance, to hear and determine appeals from all judgments, convictions, orders and sentences of inferior courts having jurisdiction in the Territory.

54. It does not appear from the report that counsel argued that s 11 provided the relevant jurisdiction but in any event the court made no reference to s 11 in its reasons. The specific reference to inferior courts in s 11(c) would, in our view, speak more strongly for an expanded view of appellate jurisdiction than does s 20.

55. It is also a matter of note that there was no specific provision in the Magistrates Court Act dealing with the appeal’s subject matter when Kelly v Apps was decided, whereas the Magistrates Court Act in its current form deals specifically with appeals concerning disqualification from driving.

56. Kelly v Apps has been the subject of criticism by a number of judges of this Court: Rose v Snape [2000] ACTSC 115 (Higgins J); FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82; Westbrook v The Queen (Unreported, Australian Capital Territory Supreme Court, Crispin J, 18 July 2000); FAI Properties Pty Limited v Apostolopoulos [2002] ACTSC 58 at [10]-[25] (Spender J); ACT DPP v McDowall [2002] ACTSC 72 at [22]–[30] (Higgins J); Evans v Shiels (2004) 185 FLR 1 at [11]-[25] (Connolly J); Sleiman v Murray (2009) 231 FLR 224 at [32]-[34] (Refshauge J); Travini v Starczewski at [66]-[67] (Refshauge J), Nelson v Heil [2013] ACTSC 11 at [79]-[81] (Refshauge ACJ); Bloxham v Wyte (2013) 278 FLR 365 at [49] (Penfold J); R v Forsyth (2013) 281 FLR 62 at [73]-[74] (Penfold J).

57. In Rose v Snape, at [47],[49] Higgins J (as his Honour then was) said:

[I]f Kelly v Apps is to be given full sway, the ACT legislature will be powerless to limit appeals to this Court if this Court is persuaded that an appeal is necessary to do justice. .... As Crispin J noted in Westbrook v R ... the decision in Kelly v Apps appears to render any ... limitation on appeals irrelevant.

57. Finally, if this court were to accept the appellant’s submission that s 20 provides jurisdiction, we would be ignoring the clear words of s 207 that the jurisdiction of the Supreme Court in Magistrates Court appeals is as to the decisions set out thereafter and “and to no others”.

58. The appellant’s submissions in reliance on s 20 of the Supreme Court Act must be rejected.

Conclusion

59. The appeal should be dismissed.

Orders

60. The appeal is dismissed.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate: Kate Harris

Date: 16 December 2015