Investments (WA) Pty Ltd v City of Swan
[2012] WASC 278 (S)
•16 NOVEMBER 2012
INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [2012] WASC 278 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 278 (S) | |
| Case No: | SJA:1059/2011 | ON THE PAPERS | |
| Coram: | PRITCHARD J | 16/11/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | INVESTMENTS (WA) PTY LTD CITY OF SWAN |
Catchwords: | Costs Factors relevant to the exercise of discretion Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code Act Compilation Act 1913 (WA) |
Case References: | McKay v Commissioner of Main Roads [No. 7] [2011] WASC 223 (S) Wilson v McDonald [2009] WASCA 39 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF SWAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE J G MUSK
File No : M 13419 of 2009
Catchwords:
Costs - Factors relevant to the exercise of discretion - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
(Page 2)
Result:
No order as to costs
Category: B
Representation:
Counsel:
Appellant : Mr S K Shepherd
Respondent : Mr D R Williams QC & Mr G Owen
Solicitors:
Appellant : Tottle Partners
Respondent : McLeods
Case(s) referred to in judgment(s):
McKay v Commissioner of Main Roads [No. 7] [2011] WASC 223 (S)
Wilson v McDonald [2009] WASCA 39 (S)
(Page 3)
1 PRITCHARD J: On 3 August 2012 I published my reasons for decision in which I concluded that this appeal should be dismissed, and I made an order to that effect. At the same time, I made orders that the parties file written submissions in relation to the question of costs, with a view to making a determination on the papers as to the costs orders which should be made. The parties filed and exchanged submissions pursuant to those orders.
2 For the reasons set out below, in my view the proper order is that there be no order as to costs. These reasons should be read in conjunction with my earlier reasons for decision, particularly insofar as those reasons set out the background to the appeal.
The parties' submissions
3 Counsel for the City of Swan (the City) submitted that the appropriate order in relation to costs would be that Investments (WA) Pty Ltd (Investments (WA)) should pay the City's costs of the appeal.
4 Notwithstanding that his client was ultimately unsuccessful on the appeal, counsel for Investments (WA) made the rather bold submission that nevertheless the City should pay his client's costs of the appeal, and of the hearing before the learned magistrate on 23 May 2011, or a substantial proportion of those costs.
The Court's power to award costs
5 Both counsel sought costs orders pursuant to s 14(1)(h) of the Criminal Appeals Act 2004 (WA), which permits the court to make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction. The provisions of the Criminal Appeals Act in respect of costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, the Act should be construed as conferring a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.1
6 I turn then to the considerations relevant to the exercise of my discretion to award costs in this case.
(Page 4)
Factors relevant to the exercise of the discretion to award costs in this case
7 The factors relevant to the exercise of the discretion to award costs in this case appear to me to be as follows.
8 First, the appeal was dismissed, and the City was necessarily put to the expense of dealing with an appeal which was unsuccessful.
9 Secondly, this appeal was the second appeal arising from the trial of the offence the subject of the prosecution notice. The offence was tried before the learned magistrate on 20 August 2011. The learned magistrate acquitted Investments (WA) on the basis of the construction of the condition of planning approval with which it was alleged Investments (WA) had failed to comply. The City successfully appealed that decision and the matter was remitted to the learned magistrate. At the second hearing before the learned magistrate on 23 May 2011, Investments (WA) sought to raise for the first time a defence of an honest claim of right under s 22 of the Criminal Code (WA) (the s 22 defence). As I observed in my earlier reasons,2 counsel for Investments (WA) did not make any mention of the fact that Investments (WA) considered that the evidence gave rise to a s 22 defence which would also have warranted the learned magistrate's finding that the prosecution had not proved the offence beyond reasonable doubt. The first mention of the s 22 defence occurred in the course of the hearing before Blaxell J when his Honour delivered judgment and made orders disposing of the appeal. Had the s 22 defence been raised prior to, or in the course of, the hearing of the appeal before his Honour, the present appeal may not have eventuated.
10 Thirdly, Investments (WA) succeeded in demonstrating that the learned magistrate was in error in declining to hear its submissions in relation to the s 22 defence.
11 Fourthly, the appeal was dismissed because I concluded that the evidence did not give rise to a s 22 defence, so that even had the learned magistrate heard and considered the submissions of Investments (WA) in relation to the s 22 defence, it would nevertheless have been convicted. In those circumstances, I concluded that no substantial miscarriage of justice had occurred. However, the basis upon which the appeal was dismissed was not a basis which had been advanced by the City in its written or oral submissions.
(Page 5)
12 Fifthly, although counsel for Investments (WA) submitted that this appeal raised important issues, in my view the appeal did not involve a significant public interest. No novel application of the law was involved, and the outcome of the case was entirely dependent upon its rather unusual factual circumstances.
13 I turn then to Investments (WA)'s submissions that the City should pay its costs, or a substantial portion of those costs, both on this appeal and in the Magistrates Court on 23 May 2011. Although Investments (WA) did establish that the learned magistrate had erred in declining to consider the s 22 defence, the appeal was dismissed, and the second and fifth considerations also militate against an order that the City pay Investment (WA)'s costs of the appeal.
14 Further, as the outcome of this appeal was that the learned magistrate's decision (including her decision as to costs) was not set aside, and as the learned magistrate's decision on 23 May 2011 (to order that Investments (WA) pay the City's costs) was not itself the subject of a separate appeal, it is not immediately clear how the Court could now make an order interfering with the costs order below. In any event, the considerations to which I have referred would not warrant the making of an order in favour of Investments (WA) with respect to the hearing below, in any event.
15 The first and second considerations set out above support the City's submission that its costs of the appeal should be paid by Investments (WA). However, the third, fourth and fifth considerations suggest that such an award would not be just in all of the circumstances. Although ordinarily a court will be slow to dissect the issues in a case to identify who succeeded on which issue, as a basis for a costs order, an approach of that kind is warranted in the present case.3 Although it is to be expected that a successful party may not succeed on all issues,4 this was a case where the appeal was dismissed for a reason not advanced by the City, and where the City's submissions in relation to the other aspects of the appeal were not successful.
16 Weighing all of the considerations to which I have referred, in my view the proper exercise of the general discretion with respect to costs in this case is that there be no order as to costs.
______________________________________
1Wilson v McDonald[2009] WASCA 39 (S) [10] (Martin CJ, Beech AJA agreeing).
2 [22] – [23]
3 See McKay v Commissioner of Main Roads[No. 7][2011] WASC 223 (S) [179] (Beech J) and the cases cited therein.
4McKay v Commissioner of Main Roads [No. 7][2011] WASC 223 (S) [179] (Beech J).
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