City of Armadale v Merrick
[2014] WASCA 125 (S)
•18 September 2014
CITY OF ARMADALE -v- MERRICK [2014] WASCA 125 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 125 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:161/2013 | ON THE PAPERS | |
| Coram: | PULLIN JA NEWNES JA MAZZA JA | 18/09/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Each party bear their own costs | ||
| B | |||
| PDF Version |
| Parties: | CITY OF ARMADALE GEOFFREY MERRICK |
Catchwords: | Costs Appeal against conviction in Magistrates Court Appeal allowed Whether respondent should pay appellant's costs Criminal Appeals Act 2004 (WA) s, 14(1)(h), s 18 Public interest element |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18 |
Case References: | City of Armadale v Merrick [2014] WASCA 125 Wilson v McDonald [2009] WASCA 39 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CITY OF ARMADALE -v- MERRICK [2014] WASCA 125 (S) CORAM : PULLIN JA
- NEWNES JA
MAZZA JA
- Appellant
AND
GEOFFREY MERRICK
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
Citation : MERRICK -v- CITY OF ARMADALE [2013] WASC 175
File No : SJA 1123 of 2012
Catchwords:
Costs - Appeal against conviction in Magistrates Court - Appeal allowed - Whether respondent should pay appellant's costs - Criminal Appeals Act 2004 (WA) s, 14(1)(h), s 18 - Public interest element
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18
Result:
Each party bear their own costs
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Cornerstone Legal
Respondent : No appearance
Case(s) referred to in judgment(s):
City of Armadale v Merrick [2014] WASCA 125
Wilson v McDonald [2009] WASCA 39 (S)
1 JUDGMENT OF THE COURT: On 19 June 2014, this court allowed an appeal by the appellant against a decision of Jenkins J in which her Honour had set aside the respondent's conviction for an offence under the Litter Act 1979 (WA) (the Act): City of Armadale v Merrick [2014] WASCA 125.
2 The respondent had been convicted in the Magistrates Court of depositing litter on land, being land which was not an 'appointed area' within the meaning of s 23 of the Act. The respondent was convicted as a result of depositing general household rubbish in an area of the appellant's waste disposal facility that had been set aside for the deposit of unwanted steel only. The case turned on whether that area was an 'appointed area'.
3 The Act defined an 'appointed area' to mean 'an area set aside by a public authority on land under its control for the deposit of litter'. In the Act, 'litter' included 'all kinds of rubbish, refuse, junk, garbage or scrap': s 5.
4 The primary judge set aside the respondent's conviction on the ground, in substance, that as the area in question was set aside for one sort of rubbish - steel or light steel - it constituted an 'appointed area' in which rubbish of any sort may be deposited. This court overturned her Honour's decision, finding that the area was not an 'appointed area', being neither an area set aside for the deposit of all kinds of rubbish nor an area set aside for the deposit of the kind of rubbish the respondent had deposited there.
5 The appellant seeks an order for its costs of the appeal to the primary judge and the appeal to this court. That is opposed by the respondent. Written submissions have been filed and served by each party and the question of costs is to be determined on the papers.
6 It was not in issue that the court has the power to make an order for costs of both the appeal before the primary judge and the costs in this court: Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18. It was also accepted by the parties that in criminal matters there is no general rule that costs follow the event; rather, save that the discretion must be exercised judicially, the court has a general and unconstrained discretion with respect to costs, except in certain limited cases which are irrelevant for present purposes: see Wilson v McDonald [2009] WASCA 39 (S) [5]. In exercising the discretion as to costs, a relevant circumstance may be whether there is any relevant element of public interest involved in the case: Wilson v McDonald [10].
7 It was submitted on behalf of the appellant that there was no public interest element in this case. While the decision of this court clarified the meaning of 'appointed area' in s 23(b) of the Act, the facts and law were of a 'regulatory character' and were analogous to civil proceedings where ordinarily costs follow the event. The appellant was a public authority responsible for enforcing the Act and it had been ultimately successful in the proceedings. There was no reason that costs should not follow the event.
8 The respondent submitted that the case did involve a broader public interest element, namely, questions of law as to the meaning of 'litter' and 'appointed area' under the Act, which had not previously been the subject of judicial consideration. The decision clarified the operation and effect of the Act for the benefit of all local authorities and the public.
9 In support of that contention, the respondent relied upon an affidavit he had filed (without objection by the appellant) to which was annexed an extract from the minutes of the annual general meeting of electors of the respondent on 4 December 2013 (after the decision of the primary judge and before the decision of this court). The extract revealed that at the meeting the appellant had rejected a suggestion that the proceedings were 'a trivial matter', describing the decision of the primary judge as one which would adversely affect many of the appellant's waste collection and disposal operations, and if not successfully challenged would mean that the Act would need to be amended.
10 We should also say that, quite apart from that material, it was evident from the evidence as to the current organisation of the facility that if the decision of the primary judge were correct, the appellant's current operations at the facility would be adversely affected to a significant extent.
11 We consider that, in the somewhat unusual circumstances of this case, it is appropriate that each party bear their own costs of both the appeal to the primary judge and to this court. While the respondent was ultimately unsuccessful, the case on appeal went beyond an ordinary prosecution of a regulatory nature. It turned solely on the proper construction of s 23(b) of the Act, a provision which upon analysis falls somewhat short of pellucid. That provision had not previously been judicially considered and its proper construction was, for the reasons identified above, a matter of considerable importance to the appellant. That, no doubt, is why the matter reached this court. The appeal has clarified the meaning of the provision.
12 The order will be that each party bear their own costs of the appeal to the primary judge and to this court.
13 In light of the order as to costs we have made, the respondent's application for a certificate under the Suitors' Fund Act 1964 (WA) does not arise.
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