Wolter v Broomhall

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

2. I upheld the appeal on a narrow ground, namely, that the Magistrate failed to give adequate reasons for a specific aspect of his finding of guilt.

3. Consequent upon that finding, the appellant seeks an order for costs under ss 218 and 244 of the Magistrates Court Act 1930 (ACT).

4. Section 244 of the Magistrates Court Act provides as follows: 244 Costs in criminal matters (1) The power of the court to award costs is subject to the following: (a) if the court makes a conviction or order in favour of the informant—it may order that the defendant must pay to the informant the informant’s costs; (b) if the court dismisses the information, or makes an order in favour of the defendant—it may order that the informant must pay to the defendant the defendant’s costs; (c) if a matter is adjourned—the court may order that the costs of and caused by the adjournment be paid by any party to any other party; (d) costs ordered to be paid— (i) must be awarded in the way prescribed by regulation; and (ii) may be recovered under the rules about the enforcement of judgments of the court in civil proceedings. (2) Subject to any order of the court, the expenses of a person who attends at court to give evidence or to produce documents must be allowed to the person (whether or not they have been examined or produced documents and whether or not they were subpoenaed to attend).

5. The term “court” is defined in the Dictionary to the Magistrates Court Act as the Magistrates Court.

6. Mr Taylor, who appeared for the appellant, properly accepted that s 244 does not, of itself, confer power on this Court to make an order for costs. He relies on s 218(1) of the Magistrates Court Act to confer that power, which provides as follows: 218 Orders by Supreme Court on appeals (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.

7. The Court of Appeal considered the scope of s 218 in Boxx v Peden [2017] ACTCA 39; 324 FLR 39. Justice Collier, with whom Penfold and Refshauge JJ agreed, relevantly held as follows (at [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: 1. 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. 2. Section 218(1)(b) does not grant the Supreme Court a broad discretion to, for example, make any orders that, in all the circumstances, the Supreme Court considers appropriate. Rather, it empowers the Supreme Court to “give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order”. The use of the words “the judgment” and “the order” are clearly referable to a judgment or order in substitution or affirmation of “the judgment” or “the order” of the Magistrates Court. The power of the Supreme Court in this respect is not at large. So, for example, pursuant to s 218(1)(b) the Supreme Court would have power to make the costs order that could have been made by the Magistrate where an appeal has been upheld. In such a case the Supreme Court would be exercising the power granted to Magistrates to award costs under s 244 of the Magistrates Court Act. As the respondent submitted, such an order would be consistent with an appeal by way of rehearing. It does not extend to the costs of the appeal before the Supreme Court itself — the source of power to make that order must be found elsewhere. 3. The limitations on the power of the Supreme Court under s 218(1)(b) are emphasised by the terms of s 218(2), which provides that a judgment or order of the Supreme Court under s 218(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. Clearly an order for costs in an appeal from a decision of the Magistrates Court could not take effect as a decision of the Magistrates Court, or be enforced by that Court.

8. In other words, although s 218(1)(b) enables the Court to make a costs order that could have been made by the Magistrates Court, it does not empower the Court to make an order for costs in relation to the appeal.

9. Mr Taylor accepted that the decision in Boxx v Peden precludes this Court from making an order for the costs of the appeal. However, he contended that s 218, read together with s 244, empowers the Court to make an order for the costs of the proceedings in the Magistrates Court up until the date of the appeal. Specifically, he contended that the reference in s 244(1)(b) to an order “made in the favour of the defendant” extends to an order by this Court allowing an appeal. Consequently, he submitted that s 218(1)(b) empowers this Court to make an order for costs under s 244(1)(b) once it has made an order allowing an appeal (being, on this construction, an order in the defendant’s favour).

10. I do not accept this submission. As Boxx v Peden makes clear, this Court has jurisdiction to award costs, but only where such an order “could have been made by the Magistrate”. The proceedings in the Magistrates Court have not yet reached a point where it would be appropriate for a Magistrate to make an order for costs. In the proceedings in the Magistrates Court to this point, there has been no order “made in favour of the defendant”. The fact that the appeal was allowed is not relevant – this Court does not have jurisdiction to make an order for the costs of the appeal. No order was made on the appeal which, had it been made by the Magistrate, would have warranted the making of an order for costs.

11. In any case, even assuming that the Court has jurisdiction to make a costs order, I do not consider it appropriate to make an order for costs against the informant in the present circumstances. As noted above, I upheld the appeal on the limited ground that the Magistrate did not give adequate reasons for his decision, and I have remitted the proceedings to the Magistrate for redetermination according to law. That redetermination may occur before the same Magistrate, who may act on the evidence previously adduced in the proceedings (including his observations of the appellant as made at the previous hearing).

12. As outlined in the appeal judgment at [87] – [88], this course (that is, remittal of the proceedings) was necessary because the appellant did not appear before the Court on the appellate proceedings. I was therefore unable to perform the comparison that had been performed by the Magistrate in the proceedings below. I am not critical of the appellant, or his legal representatives, for this course. In the appeal proceedings, Mr Taylor explained that the appellant was in a residential rehabilitation program and that he did not wish to interfere with the appellant’s progress in that program. Nonetheless, it remains the case that the proceedings could not be finalised in this Court and were required to be remitted because of the appellant’s absence.

13. As submitted by Mr Howe, who appeared for the respondent, it remains open for the appellant to seek an order for costs at the conclusion of the proceedings in the Magistrates Court if they are ultimately resolved in his favour.

14. In all the circumstances, I consider it appropriate to make no order as to costs.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 21 November 2023