Kelly v Fiander

[2024] WASC 275 (S)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   KELLY -v- FIANDER [2024] WASC 275 (S)

CORAM:   MUSIKANTH J

HEARD:   ON THE PAPERS

DELIVERED          :   25 SEPTEMBER 2024

FILE NO/S:   SJA 1001 of 2024

BETWEEN:   DAWN MICHELLE KELLY

Appellant

AND

OWAIN FIANDER

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R YOUNG

File Number            :   AL 1377-1380/2022

Catchwords:

Costs - Single judge appeal - Where appellant unsuccessful - Relevant principles - Where meritless grounds - Where no questions of law of public importance raised - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h)

Result:

Appellant to pay respondent's costs fixed in sum of $5,056

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	No appearance
Respondent	:	No appearance

Cases referred to in decision:

Hunter v City of Joondalup [2018] WASCA 166 (S)

Kelly v Fiander [2024] WASC 275

Sims v Keene [2014] WASC 248 (S)

Smolarek v Roper [2009] WASCA 124 (S)

The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S)

Thomas v Kent [2014] WASC 23 (S)

Wilson v McDonald [2009] WASCA 39 (S)

MUSIKANTH J:

1. On 2 August 2024 the Court handed down its reasons in Kelly v Fiander.[1]

   [1] Kelly v Fiander [2024] WASC 275.

2. Leave to appeal on grounds relating to four convictions under the Road Traffic (Administration) Act 2008 (WA), the Road Traffic (Vehicles) Act 2012 (WA) and the Road Traffic Act 1974 (WA) was refused, and the appeal dismissed.

3. The parties were subsequently directed to file and serve any written submissions on the question of costs.

4. The appellant submits that costs ought not be ordered against her.  The respondent seeks an order for the appellant to pay the respondent's costs fixed in the sum of $5,056 as per a Bill of Costs dated 9 August 2024.

5. Under s 14(1)(h) of the Criminal Appeals Act 2004 (WA), the court may make an order as to the costs of this appeal. However, there is not any general rule to the effect that costs should ordinarily follow the event.

6. The Criminal Appeals Act confers a general and unconstrained discretion upon the decision maker to award costs, having regard to all relevant circumstances, including any relevant aspect of the public interest.[2]

   [2] Wilson v McDonald [2009] WASCA 39 (S) (Wilson) [10] (Martin CJ, Beech AJA agreeing); The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) (Ginbey) [10] (Pullin, Newnes, Mazza JJA).

7. In this instance, the appeal was commenced by the unsuccessful party.  The court concluded that each of her 18 grounds of appeal was without merit and dismissed the appeal.

8. In addition, as the respondent correctly submits, the appeal did not involve questions of law of public importance.

9. The above are all matters relevant to the exercise of my discretion in awarding costs.[3]

   [3] Wilson [18]; Ginbey [11]; and Thomas v Kent [2014] WASC 23 (S) [7] (Allanson J); and Sims v Keene [2014] WASC 248 (S) [11] - [12] (Corboy J).

10. The appellant nevertheless resists the award of costs against her on five grounds.

11. Two of the grounds assert that a costs order would constitute a denial of procedural fairness.  Further, the appellant submits she is under financial distress.

12. In addition, the appellant submits she intends appealing my decision.

13. Finally, the appellant proposes to 'set off' any costs order in this matter, against the costs she anticipates being awarded in a separate appeal:  Kelly v Osborne [2023] WASC 252. Accordingly, she submits the court should 'balance the account'.

14. For the reasons that follow, I do not accept the appellant's submissions.

15. As the respondent correctly submits, the question of costs in Kelly v Osborne is not relevant to the determination of costs in this appeal.

16. Further, as the respondent also correctly submits, no evidence of financial distress on the part of the appellant has been presented to the court.  In any event, the inability of an unsuccessful party to meet a costs order is not a sufficient reason to deny a successful party their costs.[4]

    [4] Hunter v City of Joondalup [2018] WASCA 166 (S) [9] citing Smolarek v Roper [2009] WASCA 124 (S) [11].

17. Nor do I consider the mere fact the appellant intends appealing my decision affords a sufficient reason to avoid a costs order.

18. I turn, then, to the appellant's point regarding procedural fairness.  It is axiomatic, as the appellant effectively suggests, that she enjoyed the right to challenge her conviction by the learned magistrate by bringing these proceedings.

19. However, the fact she may have enjoyed that right cannot detract from the principle that a party who successfully resists an appeal may in appropriate circumstances be compensated for their wasted costs.

20. In my view, the above is all the more pertinent where, as here, the appeal grounds are meritless, and the quantum sought is eminently reasonable.[5]

    [5] Noting, in particular, the circumstances referred to in Kelly v Fiander [2024] WASC 275 [21] - [22].

21. Accordingly, I order that the appellant pay the respondent's costs fixed in the sum of $5,056.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR

Associate to the Judge

25 SEPTEMBER 2024