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Kelly v Fiander

Kelly v Fiander

Case [2024] WASC 275 25 September 2024

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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 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) were 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 Sims v…

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
Decision Date: 25 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Kelly v Fiander was heard in the Federal Court of Australia. The appellant, Kelly, sought an appeal against the costs awarded against them in a proceeding where they were unsuccessful. The respondent, Fiander, was awarded costs against Kelly, which Kelly now sought to appeal. The appeal was limited to the question of costs.

The central legal issue before the court was whether the costs awarded were appropriate given the nature of the appeal. Specifically, the court had to consider whether the grounds of appeal were meritless, whether the appeal raised no questions of law of public importance, and whether the matter turned on its own facts. The court was required to apply the relevant principles governing costs in single judge appeals to these facts.

The court held that the appeal was indeed meritless and did not raise any questions of law of public importance. The appeal was also found to turn on its own facts, which did not warrant a different outcome. Applying the principles relevant to costs in single judge appeals, the court affirmed the costs awarded against Kelly. The court found that there was no basis to set aside the costs order.

No further orders were made by the court. The appeal was dismissed, and Kelly was to bear the costs of the appeal as awarded below. The court's decision underscores the importance of the merit of the appeal and the absence of broader legal questions in determining the appropriateness of costs in such circumstances.

Orders