City of Armadale v Neerigen Brook Estate Pty Ltd - [2019] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CITY OF ARMADALE -v- NEERIGEN BROOK ESTATE PTY LTD [2019] WASC 341
CORAM:   QUINLAN CJ
HEARD:   ON THE PAPERS
DELIVERED          :   19 SEPTEMBER 2019
FILE NO/S:   SJA 1090 of 2019
BETWEEN:   CITY OF ARMADALE
Appellant
AND
NEERIGEN BROOK ESTATE PTY LTD
Respondent

Catchwords:

Criminal law - Single Judge Appeal - Appeal against a decision of the Magistrates Court - Application for interim order - Application to stay costs order until conclusion of appeal - Where order sought has no practical purpose - Application refused - Exercise of discretion

Legislation:

Building Act 2011 (WA)
Criminal Appeals Act 2004 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	Kott Gunning
Respondent	:	Kitto & Kitto Barristers And Solicitors

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141

QUINLAN CJ:

This particular storm in a teacup has been referred to me to determine on the papers.
On 3 October 2017, the appellant brought a prosecution against the respondent in the Magistrates Court at Armadale, alleging an offence against s 41 of the Building Act 2011 (WA). The respondent pleaded not guilty. The trial of the charge took place before Magistrate Malley on 3 May 2019.
On 26 June 2019, the learned Magistrate acquitted the respondent. His Honour made an order for payment of the accused's costs in the sum of $10,077.
The appellant lodged a notice of appeal on 23 July 2019, appealing against the acquittal of the respondent. As with all appeals under the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), leave is required for each ground.[1] The appeal, and the question of leave in relation to each ground, have yet to be determined.
[1] Criminal Appeals Act 2004 (WA) s 9 (Criminal Appeals Act).
On 8 August 2019, the appellant applied, pursuant to s 12 of the Criminal Appeals Act, for an interim order that the costs order made by the learned Magistrate be suspended until the appeal is concluded.
Principal Registrar Strk ordered that the application for an interim order be determined by a judge on the papers and made orders for the parties to file and serve any written submissions and affidavits in support of the application.
On 26 August 2019, the appellant filed submissions in support of the application for a stay of the costs order. Those submissions run to no less than 26 pages. I observe, in passing, that submissions of this length are well out of proportion to that which would be appropriate to an application of this nature.
On 29 August 2019, the respondent filed brief submissions (five paragraphs) which pointed out that, pursuant to s 5(2) of the Official Prosecutions (Accused's Costs) Act1973 (WA) (Official Prosecutions (Accused's Costs) Act), an accused is not entitled to costs, pursuant to an order of a summary court, unless and until an appeal from that summary court is resolved in his or her favour. Section 5(2) provides:
Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein but the accused is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour.
Those submissions, and the brief affidavit in support, made clear that in light of s 5(2) of the Official Prosecutions (Accused's Costs) Act, the respondent accepted that it was not entitled to pursue its costs until the appeal had been concluded. The respondent submitted that, accordingly, the application for a suspension of the costs order was nugatory. The respondent sought orders that the application for suspension be dismissed with costs reserved.
In light of the material filed by the respondent, my Associate inquired of the appellant's solicitors as to whether the application was still pursued, having regard to the respondent's submissions and s 5(2) of the Official Prosecutions (Accused's Costs) Act.
Somewhat surprisingly, in response to that inquiry, the appellant's solicitors responded that they had instructions to pursue the application. The correspondence in response included the following:
The point in issue is whether section 5(2) of the Official Prosecutions (Accused Costs) Act 1973 applies in the circumstance where the Appeal Notice has been filed (and served) within time but leave has not yet been granted to appeal and is further outlined below.
1.In this case the time for appeal expired on 24 July 2019 therefore the first of the criteria in section 5(2) enabling then Respondent to enforce the order for costs has been met.
2.The Appeal was commenced on 23 July 2019 with the filing and serving of the Appeal Notice however leave to appeal has not been granted.
3.The Appeal has not been resolved in any party's favour.
4.S5(2) does not state that if an appeal has been commenced (ie with the filing and serving of the Appeal Notice) then enforcement is stayed but rather than any Appeal "therefrom" is resolved.
5.We have been unable to locate a reference to s5(2) of the Official Prosecutions (Accused Costs) Act 1973 in a WA Supreme Court case.
Criminal Appeals Act 2004 (WA) (Appeals Act)
6.The power to make a stay order is contained in s.12 of the Criminal Appeals Act 2004 (WA) (Appeals Act).
7.Pursuant to s.12 of the Appeals Act, the Supreme Court can in certain situations make any order it thinks fit that suspends a decision of a court of summary jurisdiction, including any orders made, until the appeal is concluded.
8.Such an order can be made before or after leave to appeal is given.
9.Section 11 of the Appeals Act provides that once leave to appeal is granted and until the appeal is concluded, no warrant or order to enforce the decision shall be issued and no action taken to enforce the decision (except in relation to certain penalties which are not applicable in this case). Costs orders are not automatically exempted from the operation of section 11 of the Appeals Act.
10.The leave to appeal in this case has not yet been granted.
Given the above, our instructions are to pursue the application to determine whether s 5(2) of the Official Prosecutions (Accused Costs) Act 1973 applies in the circumstances of the current case.
The appellant's approach is, I regret to say, perplexing.
The respondent has, in correspondence to the appellant and in submissions to this Court, accepted that it is unable to pursue the costs order until the finalisation of the appeal. It does not seek to enforce the costs order at this time. In particular, the respondent accepts that s 5(2) of the Official Prosecutions (Accused's Costs)Act applies in this case. While its position is not entirely clear, the appellant does not, beyond raising an 'issue', positively assert that s 5(2) does not apply. Nor, given the respondent's concession, is it apparent why it would wish to do so.
There is no doubt from the plain words of s 5(2) of the Official Prosecutions (Accused's Costs) Act that it applies in the present case. An appeal has been commenced, within time, albeit that leave to appeal is required. The appeal has not been resolved. The respondent, quite properly, acknowledges that it is not entitled to its costs until the determination of the appeal.
There could be no practical purpose, in those circumstances, in pursuing the stay application under s 12 of the Criminal Appeals Act.
The power in s 12 is discretionary. Given that the application in the present case is pointless, I would refuse it in my discretion.
I would only add that, in the absence of s 5(2), a real issue would have arisen as to whether the order should be suspended in any event. There is nothing in the affidavit material filed by the appellant to suggest that there is any reason to suppose that this appeal (including as to costs) would be rendered nugatory if the order was not suspended.[2] In particular, there is nothing to suggest that the respondent would not be in a position, following a successful appeal, to repay any costs paid to it (which it does not now seek in any event).
[2] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 (Eastland) [9]. The appellant submitted that the principles in Eastland and in particular the need to identify special circumstances for a stay have been, in effect, overtaken by changes to the Rules of the Supreme Court 1971 (WA). The submission is misconceived. The principles in Eastland continue to guide the exercise of the power to order a stay in this State. (See most recently Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [47]).
The application will be dismissed with costs reserved. It is to be hoped that the costs of pursuing the application did not eclipse the amount in issue.

Orders

1. The appellant's application for interim orders lodged on 8 August 2019 be dismissed.

2. The costs of the application be reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
19 SEPTEMBER 2019