a.) rn IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G21 of 1981 ) ) ) GENERAL DIVISION IN THE MATTER of an appeal from the Supreme Court of the Australian Capital Territory in which Peter John Bradley was the appellant and Paul Anthony Armstrong was the respondent AND IN THE MATTER of an application by Paul Anthony Armstrong under the Federal Proceedings (Costs) Act 1981 ORDER JUDGE MAKING ORDER: Neaves J DATE OF ORDER: 18 October 1983 WHERE MADE: Canberra THE COURT GRANTS to the applicant, Paul Anthony Armstrong, a certificate in terms of section 6 of the Federal Proceed- ings (Costs) Act 1981 that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the applicant in respect of costs incurred by the applicant in relation to the proceedings in this Court on appeal from the Supreme Court of the Austra- lian Capital Territory and numbered ACT G21 of 1981 in which Peter John Bradley was the appellant and the applicant Fy was the respondent. ' IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G21 of 1981 DISTRICT REGISTRY wes yw GENERAL DIVISION IN THE MATTER of an appeal from the Supreme Court of the Australian Capital Territory in which Peter John Bradley was the appellant and Paul Anthony Armstrong was the respondent AND IN THE MATTER of an application by Paul Anthony Armstrong under the Federal Proceedings (Costs) Act 1981 CORAM: Neaves J. DATE: 18 October 1983 REASONS FOR JUDGMENT This is an application under section 6 of the Federal Proceedings (Costs) Act 1981 on behalf of Paul Anthony Armstrong (hereinafter calied "the applicant") for a costs certificate in respect of an appeal to the Full Court of this Court from a judgment of the Supreme Court of the Australian Capital Territory. The history of the matter is that the applicant was charged with an offence against sub-section 64(1) of the Australian Federal Police Act 1979 in that he did in the Australian Capital Territory on 26 April 1980 resist Peter John Bradley, then being a member of the Australian Federal Police, in the execution of his duty. The charge arose from certain events which took place at Dickson in the Australian Capital Territory on the evening of 26 April 1980. The applicant was driving a motor vehicle on a public street. He was stopped by two members of the Australian Federal Police, Constable Froome and Senior Constable Bradley. After some questioning by Constable n Froome, the applicant was required pursuant to section 6 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 to undergo a roadside screening test, that is to say he was required to blow into a device for the purpose of testing a sample of his breath. It was alleged that the applicant refused to undergo the screening test and was told that he was being taken into custody for the purpose of having a breath analysis carried out at Police Headquarters. It was alleged that the applicant lay down across the front seats of his vehicle and, despite a request from Senior Constable Bradley that he get out of his vehicle, he refused to do so. It was further alleged that Senior Constable Bradley took hold of the applicant's right arm and began to pull him towards the door of the vehicle. The applicant was said by the police officers to have resisted being removed from the vehicle and to have kicked his feet in their direc- tion. The applicant was removed from the vehicle and taken by police vehicle to the police station for the purpose of having a breath analysis carried out. He was then charged with three offences including that referred to above. The learned magistrate constituting the Court of Petty Sessions dismissed the charge on the ground that the applicant had not been lawfully taken into custody under section 11 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 because the device into which the applicant had been required to blow had not been validly approved by the Minister of State for the Capital Territory under the provisions of sub-section 5(2) of that Ordinance. It followed that the applicant could not be said to have resisted the police officer in the execution of his duty. Costs were awarded against the informant. An application was then made on behalf of the informant, Senior Constable Bradley, to the Supreme Court of the Australian Capital Territory pursuant to section 219C of the Court of Petty Sessions Ordinance 1930 for an order risi to review the decision of the Court of Petty Sessions. The Supreme Court discharged the ordernisi with costs, holding that the notice published in the Commonwealth of Australia Gazette of 12 October 1977 on which the informant relied as approving as a screening device the device into which the applicant had been required to blow was not a valid exercise of the power conferred upon the Minister by sub-section 5(2) of the Ordinance. The Supreme Court reached this conclusion on the basis that it was bound by, and could not properly distinguish, the decision of the Full Court of this Court in Godsen v. Billerwell (1980) 31 A.L.R. 103. From that decision of the Supreme Court an appeal was brought to this Court. On 6 November 1981 a Full Court of this Court allowed the appeal and set aside the order of the Supreme Court on the ground that the device into which the applicant had been required to blow had been validly approved by the Minister under sub-section 5(2) of the Ordinance. In accordance with sub-sections (5) and (6) of section 219F of the Court of Petty Sessions Ordinance 1930 the informant was ordered to pay the applicant's costs of the proceedings in the Supreme Court. The question of the costs of the appeal to this Court was reserved in case counsel should wish to argue the question in relation to the operation of section 219F of the Court of Petty Sessions Ordinance 1930. The matter was remitted to the Court of Petty Sessions to be dealt with according to Law. An application to the High Court on behalf of the applicant for special leave to appeal from the decision of this Court was dismissed on 12 February 1982. Notwithstanding the order of the Full Court of this Court that the matter be remitted to the Court of Petty Sessions to be dealt with according to law, no further proceedings appear to have been taken in that court in relation to the charge. It may be that the informant was discouraged from proceeding further because of remarks made in this Court and in the High Court, though it is fair to say that those remarks were based on the oral evidence > included in the Appeal Book prepared for the purposes of the appeal to this Court and not on the totality of the evidence adduced before the learned magistrate. The applicant took no steps to avail himself of the opportunity given to him by the Full Court of this Court to seek an order that the informant pay his costs of the appeal. I am informed that the parties have not reached any agreement concerning the incidence of those costs. Indeed, the applicant was informed by letter dated 25 May 1982 that it was not an appropriate case for the informant to agree to pay the applicant's costs of the appeal. Section 6 of the Federal Proceedings (Costs) Act 1981 provides in sub-section (1) that, subject to the Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. The expression "Federal appeal" is defined in sub-section 3(2). It includes an appeal to this Court from a judgment of the Supreme Court of the Australian Capital Territory (paragraph 3(2)(£) and definition . of "Territory"). By virtue of section 12 of the Act, the jurisdiction conferred on a court by the Act to grant costs certificates may be exercised by a member of that court sitting in Chambers. > 5. The certificate that may be granted under sub-section 6(1) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of:- (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pur- suance of an order of the court, not being costs to which a costs certificate granted under section 7 relates. Section 7 has no relevant application in the present case. A reference in section 6 to the costs incurred by a person in relation to a Federal appeal is, where the appeal is in a sequence of appeals that includes an earlier Federal appeal or earlier Federal appeals, to be read as including a reference to the costs incurred by the person in relation to that earlier Federal appeal or all those earlier Federal appeals. The expression "sequence of appeals" is defined in sub-section 3(2) to mean a sequence of appeals in which éach appeal that follows next after another appeal in the sequence is an appeal against the judgment in that other appeal. The expression "Federal appeal" includes an appeal to the Supreme Court of the Australian Capital Territory from a judgment of another court of that Territory (paragraph 3(2)(h) and definition of "Territory"). There is no doubt that the appeal to this Court succeeded on a question of law as that expression is used in sub-section 6(1) of the Act. The Court is not precluded from granting a certificate by section 14 nor, as the appeal to this Court was instituted on 21 July 1981 being a date subsequent to the commencement of the Act, by sub-section 21(1). The statute does not lay down any criteria for the exercise of the discretion which section 6 confers on the Court. The discretion is, therefore, unfettered except in so far as limitations upon it can be said to arise from the general scope and purpose of the legislation to be ascertained upon a consideration of its language. The matters which may be said to militate against the granting of a certificate in this case are - (a) the fact that the question of law on which the appeal to this Court succeeded would not have arisen for decision in these proceedings if the applicant had not himself alleged before the learned magistrate that the devise into which ~ he was required to blow had not been validly approved; (b) the failure of the applicant to take advantage of the opportunity afforded to him by the Full Court of this Court to apply to that Court for an order that the' informant pay the applicant's costs of the appeal; and (c) the delay of the applicant in applying for a costs certificate under section 6 of the Act. I have given these matters careful consideration but, in the result, I have concluded that they do not require the Court to refuse a certificate. Reference has already been made to the provisions of the Act concerning a sequence of appeals. I have found it unnecessary in this case to pursue the question whether the proceedings before the Supreme Court of the Australian Capital Territory, being proceedings brought in accordance with the order to review procedure provided for in Division 3 of Part XI of the Court of Petty Sessions Ordinance 1930, constitute an "appeal" within the meaning of that expression in the definition of "sequence of appeals" in sub-section 3(2) of the Act. It is unnecessary to do so for, even if those proceedings are properly described as an "appeal" within that definition, it would clearly be inappropriate to grant a certificate in respect of them in the light of the order made by this Court in accordance with sub-sections (5) and (6) of section 219F of the Ordinance that the informant pay the applicant's costs of those proceedings. It is unnecessary to grant a certificate in terms of paragraph (b) of sub-section 6(3) of the Act as the applicant was not ordered to pay the costs of the informant of the appeal to this Court. In all the circumstances I am satisfied that this is an appropriate case in which to grant a certificate under section 6 of the Federal Proceedings (Costs) Act 1981 limited to the applicant's costs of the proceedings by way of appeal in this Court. I, therefore, certify in terms of that section that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the applicant in respect of the costs incurred by him in relation to the proceedings by way of appeal to this Court. A ab ree a eer mtonra ty | certify that this and the gle Cy) preceding pages ere a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Neaves Associate Dated: «(¥-10°&3