Basham v City of Joondalup [No 2]
[2016] WASC 120 (S)
•28 APRIL 2016
BASHAM -v- CITY OF JOONDALUP [No 2] [2016] WASC 120 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 120 (S) | |
| 28/04/2016 | |||
| Case No: | SJA:1070/2014 | 22 APRIL 2016 | |
| Coram: | FIANNACA J | 22/04/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded in favour of respondent | ||
| B | |||
| PDF Version |
| Parties: | FRANCIS SHANE BASHAM CITY OF JOONDALUP |
Catchwords: | Criminal law Practice and procedure Costs after unsuccessful appeal against the decision of a magistrate Costs granted |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h) |
Case References: | Basham v City of Joondalup [No 2] [2016] WASC 120 Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R BROMFIELD
File No : JO 4882 of 2014
Catchwords:
Criminal law - Practice and procedure - Costs after unsuccessful appeal against the decision of a magistrate - Costs granted
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h)
Result:
Costs awarded in favour of respondent
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T L Beckett
Solicitors:
Appellant : In person
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Basham v City of Joondalup [No 2] [2016] WASC 120
Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80
1 FIANNACA J: On 22 April 2014, I dismissed the appellant's appeal: Basham v City of Joondalup [No 2] [2016] WASC 120. The respondent then sought an order for costs against the appellant. The costs claimed were in respect of the proceedings in the application for leave as well as the hearing of the appeal.
2 Mr Beckett, on behalf of the respondent, produced a draft bill of costs for a total sum of $9,233.50. He indicated, however, that the respondent would accept an order for costs fixed in the sum of $6,000 to avoid taxation. In the interests of finality, I considered it appropriate to fix the costs.
3 The appellant opposed the respondent's application for costs.
4 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) (the Act) gives the Supreme Court power to 'make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction'. This power must be read subject to s 20 of the Act, but that section has no application to this case.
5 The principles relevant to the making of a costs order in an appeal from a prosecution in the Magistrates Court were discussed by Martin CJ in Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80 [5] - [10]. In essence, his Honour concluded that, outside the specific topics covered by s 20 of that Act, the Act should be construed as conferring a general and unconstrained discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest [10]. The Act should not be construed as importing a general rule to the effect that costs should ordinarily follow the event [10]. His Honour acknowledged that appeals from decisions in respect of offences that have a regulatory character may be more analogous to civil proceedings, where costs will ordinarily follow the event [7]. However, although the offence in this case may be regarded as being of a regulatory character, I do not consider that his Honour necessarily intended to exclude a prosecution such as the one in the present case from the need to have regard to 'any relevant public interest'. Importantly, as his Honour noted:
The appellate jurisdiction of this court with respect to the decisions of magistrates in criminal proceedings also has a supervisory character. Amongst the interests served by the exercise of that jurisdiction is the clarification and elucidation of the law to be applied, and the practices and procedures to be adopted by magistrates in the exercise of their criminal jurisdiction. The public importance of that jurisdiction cannot be overstated, as it is the magistrates of this state who hear and determine the vast majority of criminal charges brought [8].
6 I note that in Wilson v McDonald, Wheeler JA did not consider it necessary to decide the question whether the discretion to order costs under the Act is general and unconstrained, or whether as a general rule costs should follow the event in appeals under the Act. However, Beech AJA agreed with the Chief Justice.
7 The present appeal was unsuccessful. Ordinarily, in a case of this kind, I would consider that costs should follow the event, and that the respondent should have an order for at least part of its costs. The appellant has not made any submission that would justify the making of no order as to costs. The respondent successfully opposed a grant of leave to appeal against the appellant's conviction, and ultimately the appeal against costs was dismissed. In my view, there is no reason why the respondent should not have some of its costs in this case. The question is, how much? In my opinion, there are a number of factors in this case that justify a substantial reduction of the costs that should be awarded to the respondent.
8 First, in relation to costs incurred on the leave application, while the respondent should be entitled to a portion of the costs to reflect its successful response to the application for leave to appeal against the conviction, the appellant was granted leave to appeal against the costs order. Although the grounds were refined by Corboy J, those grounds were found to have real prospects of success. I have concluded that, of the $2,365 claimed in respect of preparation and attending the first hearing of the leave application, it is fair and reasonable that the respondent be awarded $1,300.
9 The respondent conceded that the court might disallow the costs claimed for drafting submissions and attending the second hearing of the leave application, as the respondent was not successful in opposing the application. This also took into account other factors I identified in discussion with Mr Beckett, which I will refer to below.
10 In relation to the appeal hearing and the preparation of the affidavit which was filed after the hearing, for which a total of $2,979.90 was claimed on the bill of costs, the following factors are relevant.
11 I have found that one of the grounds of appeal had merit. I was satisfied that the magistrate erred in law in failing to provide adequate reasons for the costs order. The appeal was successful to that extent. It was dismissed because I was satisfied there was no substantial miscarriage of justice.
12 The magistrate's failure to provide reasons meant that the appellant had no way in which he could determine if the magistrate had properly considered the reasonableness of the costs in this case, and the appeal against costs and the grant of leave is understandable in those circumstances. Although the appellant had had an order in the same amount made against him in a previous prosecution, and the magistrate on that occasion had told him such an order was reasonable, the appellant was entitled to know the specific reasons for the costs order in this case. As he said at today's hearing, the appeal hearing was the first occasion on which he had received an explanation of how the costs were incurred.
13 Given the absence of any reasons from the magistrate, and a decision by Corboy J that there were real prospects of success on the refined grounds, it was always open to the respondent to concede the ground concerning reasons, and confine the appeal to a consideration of the proviso. In my opinion, the respondent should be entitled to costs in respect of that part of the appeal that resulted in the appeal being dismissed, that is, the submission that there was no substantial miscarriage of justice. It is difficult to dissect the work, in terms of preparation and appearance, in any accurate way. As for the preparation of Mr Beckett's affidavit, I would have expected most of the information to be readily available. Further, some of the affidavit was in the nature of argument as to the reasonableness of the costs, rather than simply setting out the work done. Argument in support of the reasonableness of the work had already been put at the hearing.
14 Having regard to the above factors, I have determined that it is fair and reasonable to award the respondent $1,600 in respect of the appeal, including the preparation and filing of the affidavit. I have also made an allowance for the appearance for the decision, with the result that I consider the respondent should be entitled to a total of $3,000 in costs for the leave application and the appeal.
15 For these reasons, at the appearance on 22 April 2016, I ordered that the appellant pay the respondent's costs fixed in the sum of $3,000.
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