Allbeury v Corruption and Crime Commission

[2012] WASCA 84 (S)

ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 84 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:19/2011	Heard:	13 OCTOBER 2011 & ON THE PAPERS
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	13/04/12
Supplementary Delivered:	25/05/12
No of pages:	7	Judgment Part:	1 of 1
Result:	Each party to bear his or its own costs of the appeals
Category:	B
PDF Version

Parties:	TRISTAN ROGER ALLBEURY CORRUPTION AND CRIME COMMISSION CLOVIS MURHABAZI CHIKONGA STEPHEN LAURENCE SILVESTRO TROY CRISPIN SMITH
Catchwords:	Practice and procedure Costs Appellants successful on preliminary issue Respondent successful on the substantive appeals Each party to bear his or its own costs Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1) Supreme Court (Court of Appeal) Rules 2005 (WA), s 5(1) Supreme Court Act 1935 (WA), s 37(1)
Case References:	Allbeury v Corruption and Crime Commission [2012] WASCA 84 Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162 (S) Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 Keet v Ward [2011] WASCA 139 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 Shire of Manjimup v Cheetham [2010] WASCA 225 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84 (S) CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 13 OCTOBER 2011 & ON THE PAPERS DELIVERED : 13 APRIL 2012 SUPPLEMENTARY
DECISION : 25 MAY 2012 FILE NO/S : CACV 19 of 2011 BETWEEN : TRISTAN ROGER ALLBEURY

Appellant

AND

CORRUPTION AND CRIME COMMISSION
Respondent

FILE NO/S : CACV 20 of 2011 BETWEEN : CLOVIS MURHABAZI CHIKONGA

Appellant

AND

CORRUPTION AND CRIME COMMISSION
Respondent

(Page 2)

FILE NO/S : CACV 21 of 2011 BETWEEN : STEPHEN LAURENCE SILVESTRO

Appellant

AND

CORRUPTION AND CRIME COMMISSION
Respondent

FILE NO/S : CACV 22 of 2011 BETWEEN : TROY CRISPIN SMITH

Appellant

AND

CORRUPTION AND CRIME COMMISSION
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

Citation : CORRUPTION AND CRIME COMMISSION -v- ALLBEURY, SILVESTRO, CHIKONGA, SMITH [No 2] [2011] WASC 26

File No : CIV 2870 of 2010, CIV 2871 of 2010, CIV 2872 of 2010, CIV 2875 of 2010

Catchwords:

Practice and procedure - Costs - Appellants successful on preliminary issue - Respondent successful on the substantive appeals - Each party to bear his or its own costs - Turns on own facts

(Page 3)

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(1)

Supreme Court (Court of Appeal) Rules 2005 (WA), s 5(1)
Supreme Court Act 1935 (WA), s 37(1)

Result:

Each party to bear his or its own costs of the appeals

Category: B

Representation:

CACV 19 of 2011

Counsel:

Appellant : Mr L M Levy SC
Respondent : Mr D W L Renton & Ms T M Chung

Solicitors:

Appellant : S C Nigam & Co
Respondent : Corruption and Crime Commission of Western Australia

CACV 20 of 2011

Counsel:

Appellant : Mr L M Levy SC
Respondent : Mr D W L Renton & Ms T M Chung

Solicitors:

Appellant : A Padmanabham
Respondent : Corruption and Crime Commission of Western Australia

(Page 4)

CACV 21 of 2011

Counsel:

Appellant : Mr L M Levy SC
Respondent : Mr D W L Renton & Ms T M Chung

Solicitors:

Appellant : S C Nigam & Co
Respondent : Corruption and Crime Commission of Western Australia

CACV 22 of 2011

Counsel:

Appellant : Mr L M Levy SC
Respondent : Mr D W L Renton & Ms T M Chung

Solicitors:

Appellant : S C Nigam & Co
Respondent : Corruption and Crime Commission of Western Australia

Case(s) referred to in judgment(s):

Allbeury v Corruption and Crime Commission [2012] WASCA 84
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162 (S)
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Keet v Ward [2011] WASCA 139
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Shire of Manjimup v Cheetham [2010] WASCA 225 (S)


(Page 5)

1 McLURE P: I agree with Buss JA.

2 BUSS JA: On 13 April 2012, this court dismissed the appeals and published its reasons for decision in Allbeury v Corruption and Crime Commission [2012] WASCA 84.

3 At the hearing of the appeals, the respondent (the Commission) raised a preliminary issue as to this court's jurisdiction to entertain the appeals. It was submitted on behalf of the Commission that there was no right of appeal from a decision of a Supreme Court judge that an alleged contemnor is guilty of contempt or from the sentence imposed in respect of the contempt. The court rejected this submission. It decided that it had jurisdiction to entertain the appeals.

4 When the court dismissed the appeals, and published its reasons for decision, it made orders for the filing and service of written submissions as to costs. The parties have filed and served these submissions. The appropriate orders as to costs are to be determined on the papers.

5 The appellants, having been successful on the preliminary issue but unsuccessful in the substantive appeals, sought an order that each party bear his or its own costs of the appeals. Alternatively, they sought orders that the Commission pay the appellants' costs relating to the preliminary issue and that the appellants pay those costs of the Commission that are solely referable to matters other than the preliminary issue.

6 The Commission, which was successful in the substantive appeals but unsuccessful on the preliminary issue, sought an order that the appellants pay the Commission's costs, the total costs be fixed in the sum of $25,652 and the total amount be 'evenly proportioned between the appellants'. Alternatively, the Commission sought an order that the appellants pay its costs to be taxed, if not agreed.

7 Each of the appellants was convicted by Martin CJ of criminal contempt. Proceedings for contempt are essentially criminal in nature. However, there are clear procedural differences between proceedings for contempt, on the one hand, and the trial of a criminal charge, on the other. The High Court has held that proceedings for contempt attract the rule as to costs that ordinarily applies in the civil jurisdiction, namely, that costs follow the event. See Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey & Gaudron JJ). See also Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, 493.

(Page 6)

8 The rules as to costs in this court's civil jurisdiction apply generally to the present appeals.

9 Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court 1971 (WA) (RSC).

10 Section 37(1) of the Supreme Court Act 1935 (WA) provides that the costs of and incidental to all proceedings in the Supreme Court are in the discretion of the court or judge.

11 By O 66 r 1(1) of the RSC, subject to the express provisions of any statute and of the rules of court, and without limiting the generality of the discretion to make a costs order, the court will generally order that the successful party to any action or matter recovers his costs. Various provisions of O 66 were discussed by this court in Keet v Ward [2011] WASCA 139 [17] - [24] (Pullin, Buss & Newnes JJA).

12 Where there is a mixed outcome in an appeal, and the court decides that there should be an apportionment of costs based on the relative importance of the various claims in the appeal, the apportionment can only be carried out broadly, it involving primarily matters of impression and evaluation rather than precision. See Shire of Manjimup v Cheetham [2010] WASCA 225 (S) [7]; Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162 (S) [6].

13 In the present case, the preliminary issue raised a matter of general public importance. The matter was not straightforward. It involved questions of some difficulty and complexity.

14 By contrast, the issues in the substantive appeals were not of general public importance, and they were not attended by any difficulty or complexity.

15 The fact that these appeals were essentially criminal in nature is a relevant consideration in the exercise of the court's discretion as to costs. The partial success of each of the appellants and the Commission, and the importance, difficulty and complexity of the preliminary issue compared to the issues in the substantive appeals, are also relevant considerations in deciding upon the appropriate costs orders.

16 In the particular circumstances of this case, it would be just to make no order as to costs. Each of the parties should bear his or its own costs of the appeals.

(Page 7)

17 MAZZA JA: I agree with Buss JA.