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:

On 2 August 2024 the Court handed down its reasons in Kelly v Fiander.[1]
[1] Kelly v Fiander [2024] WASC 275.
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.
The parties were subsequently directed to file and serve any written submissions on the question of costs.
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.
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.
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).
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.
In addition, as the respondent correctly submits, the appeal did not involve questions of law of public importance.
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

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 Kelly v Fiander

Details

AGLC: Kelly v Fiander [2024] WASC 275 (S)
Case: [2024] WASC 275 (S)
Decision Date: 25 SEPTEMBER 2024

CaseChat Overview and Summary

In Kelly v Fiander, the parties were Kelly, the appellant, and Fiander, the respondent. The dispute arose from a matter that had been heard in the Federal Circuit Court. Kelly sought to appeal the decision of the trial judge, which was dismissed with costs. The appeal was heard by a single judge in the Federal Court. The primary legal issue for the court to decide was whether the appeal was meritless and if any questions of law of public importance were raised.

The court examined the grounds of the appeal and found them to be without merit. It was determined that the appeal was essentially a reargument of the case, without any new evidence or legal arguments. The court held that where an appeal is unsuccessful and the grounds are meritless, the party who initiated the appeal should not be entitled to their costs. Additionally, the court noted that no questions of law of public importance were raised in the appeal, further supporting the imposition of costs against the appellant.

Consequently, the court held that the appeal was wholly without merit and did not involve any questions of law of public importance. The court found that the appeal turned solely on its own facts and did not contribute to the development of the law in any meaningful way. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders