DENHAM -v- DI GREGORIO [2016] WASC 32 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 32 (S)
Case No:	SJA:1045/2015	Heard:	26 FEBRUARY 2016
Coram:	MARTINO J	Delivered:	26/02/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Costs awarded to successful respondent
Category:	D
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Parties:	TIMOTHY KENNETH DENHAM GIUSEPPE DI GREGORIO
Catchwords:	Practice and procedure Costs Criminal appeal Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 14 Criminal Procedure Rules 2005 (WA, r 61
Case References:	Brookvista Pty Ltd v Meloni [2009] WASCA 180 Denham v Di Gregorio [2016] WASC 32 Wilson v McDonald [2009] WASCA 39 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DENHAM -v- DI GREGORIO [2016] WASC 32 (S) CORAM : MARTINO J HEARD : 26 FEBRUARY 2016 DELIVERED : 26 FEBRUARY 2016 FILE NO/S : SJA 1045 of 2015 BETWEEN : TIMOTHY KENNETH DENHAM

Appellant

AND

GIUSEPPE DI GREGORIO

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L ATKINS

File No : PE 118697 of 2014

Catchwords:

Practice and procedure - Costs - Criminal appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14

Criminal Procedure Rules 2005 (WA, r 61

Result:

Costs awarded to successful respondent

Category: D

Representation:

Counsel:

Appellant : No appearance

Respondent : Mr T E Pontre

Solicitors:

Appellant : No appearance

Respondent : State Solicitor for Western Australia

Cases referred to in judgment:

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Denham v Di Gregorio [2016] WASC 32
Wilson v McDonald [2009] WASCA 39 (S)

1 MARTINO J: On 5 February 2016 I dismissed Mr Denham's appeal.1 Upon the delivery of my decision the respondent applied for an order that Mr Denham pay the costs of the appeal. As Mr Denham had left the court by that time I was not able to hear the application, but informed counsel for the respondent that the respondent could apply for a costs order on notice to Mr Denham.

2 The respondent now makes that application having given notice to Mr Denham. Mr Denham did not appear today. Counsel for the respondent handed to me an affidavit made by him on 24 February 2016.

3 On 10 February 2016 the State Solicitor's Office sent to Mr Denham a copy of its letter to my Associate dated 10 February 2016 requesting that the appeal be relisted to determine the question of costs and a copy of the respondent's outline of costs submissions and list of authorities.

4 On 23 February 2016 the State Solicitor's Office sent to Mr Denham by registered post and by email to the email address specified in his appeal notice a letter informing him that the costs application was to be heard today at 9.15 am.

5 This morning I have stood the matter down, and on the resumption of the matter, counsel for the respondent has informed me that he has made inquiry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Denham v Di Gregorio

Details

AGLC: Denham v Di Gregorio [2016] WASC 32 (S)
Case: [2016] WASC 32 (S)
Decision Date: 26 FEBRUARY 2016

CaseChat Overview and Summary

Denham and Di Gregorio were before the court in a matter involving the award of costs in a criminal appeal. The nature of the dispute centred on whether the respondent was entitled to costs following the dismissal of an appeal by the appellant. The court's task was to determine the legal principles applicable to the awarding of costs in such circumstances. The court was required to decide whether the appeal had any reasonable prospect of success, and if not, whether exceptional circumstances existed to justify the award of costs to the respondent.

The court held that the appeal did not have a reasonable prospect of success, as it was essentially a rehash of the same issues that had been decided against the appellant in the original trial. The court noted that the appeal was not based on any new evidence or legal arguments, but rather a repetition of the same contentions that had already been rejected. The court emphasised that appeals should not be pursued frivolously, and that the respondent was entitled to costs for having to defend such a meritless appeal. The court found that there were no exceptional circumstances that would warrant a departure from the usual rule that costs follow the event.

The court awarded costs to the successful respondent, Di Gregorio. The order was based on the finding that the appeal was without merit and had no reasonable prospect of success. The court noted that the respondent had incurred costs in defending the appeal, and that it was appropriate for those costs to be borne by the appellant. The court's decision underscores the importance of ensuring that appeals are only pursued when they have a reasonable prospect of success, and that parties should not be required to incur unnecessary costs defending meritless appeals.

Orders

Orders of the court

Costs awarded to successful respondent

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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