Kezic v City of Stirling
[2019] WASCA 136
•30 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KEZIC -v- CITY OF STIRLING [2019] WASCA 136
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 22 AUGUST 2019
DELIVERED : 22 AUGUST 2019
PUBLISHED : 30 AUGUST 2019
FILE NO/S: CACR 57 of 2019
BETWEEN: ROSARIA KEZIC
Appellant
AND
CITY OF STIRLING
Respondent
FILE NO/S: CACR 58 of 2019
BETWEEN: ZIVKO KEZIC
Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: STRK AJ
Citation: ZIVKO KEZIC v CITY OF STIRLING
File Number : SJA 1029 of 2019
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: STRK AJ
Citation: ROSARIA KEZIC v CITY OF STIRLING
File Number : SJA 1030 of 2019
Catchwords:
Practice and procedure - Criminal appeal - Appeal against orders - Competency of appeal from a single appeal judge's procedural orders - Appeal incompetent
Practice and procedure - Application for costs - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 16, s 19(2)
Result:
Appeals dismissed
Applications for costs granted
Category: B
Representation:
CACR 57 of 2019
Counsel:
| Appellant | : | In person |
| Respondent | : | T L Beckett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
CACR 58 of 2019
Counsel:
| Appellant | : | In person |
| Respondent | : | T L Beckett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
City of Armadale v Merrick [2014] WASCA 125 (S)
Fitas v O'Brien [2017] WASCA 147
Northern Territory v Sangare [2019] HCA 25
PMT Partners Pty Ltd v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301
The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S)
Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80
REASONS OF THE COURT:
Each of the appellants purported to appeal against orders made by Strk AJ on 15 April 2019. The respondent contended that the appeals were incompetent and should be dismissed. The appeals were listed on 22 August 2019 to resolve the issue of the competency of the appeals.
On 22 August 2019, at the conclusion of the hearing, this court made orders in each case dismissing the appeal and ordered each appellant to pay the respondent's costs fixed in the sum of $500. The court said it would publish reasons for these orders at a later date. These are our reasons for the orders that were made. In essence, the appeals were incompetent because the orders appealed against were merely procedural, and there is no right of appeal against such orders.
Background
On 12 February 2019, the appellants were convicted, after a trial in the Magistrates Court at Perth, of failing to comply with a notice given under cl 5.1 of the relevant City of Stirling Local Law.[1] They were each fined $1,000 and ordered to pay costs.
[1] City of Stirling Fencing Local Law 2008.
Each appellant appealed to a single judge sitting in the General Division of the Supreme Court against their conviction pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA) (CAA) (Zivko Kezic v City of Stirling, SJA 1029 of 2019, and Rosaria Kezic v City of Stirling, SJA 1030 of 2019).
On 2 April 2019, Strk AJ made provisional orders in each appeal on her own motion, as she was empowered to do, pursuant to r 60 and r 63 of the Criminal Procedure Rules 2005 (WA), that (1) the application for leave to appeal be heard with the appeal, (2) the appeals be heard together and (3) each appeal be listed for directions only at 9.30 am on 15 April 2019.
On 15 April 2019, having heard the appellants in person and counsel for the respondent, Strk AJ made these orders in each appeal:
(1)The provisional orders made [by her Honour] on 2 April 2019 stand as confirmed.
(2)The parties have leave to refer to documents annexed to the affidavit of Ms Rosaria Kezic sworn 10 April 2019, at the hearing of the appeal.
(3)The Form 23 applications lodged by the appellant on 1 March 2019 and 10 April 2019 respectively, for interim orders pursuant to the Criminal Procedure Rules 2005 (WA) Rule 68 be otherwise dismissed.
(4)By 4 pm on Monday, 6 May 2019 the appellant is to lodge and serve any minute of proposed amended grounds of appeal.
(5)The matter is listed for directions only at 9.30 am on Thursday, 6 June 2019.
The reference in order (3) to 'Form 23 applications … for interim orders' is a reference to applications filed by each appellant within which, in effect, they requested that certain matters be dealt with prior to the hearing of their appeals before a single judge. The effect of order (3) was to deny this request.
By the present proceedings, each appellant purported to appeal to this court against the orders made by Strk AJ on 15 April 2019.
The competency of the appeals
The respondent raised a question as to the competency of the appellants' appeals to this court. In substance, the respondent submitted that the orders made by her Honour on 15 April 2019 were merely interlocutory procedural orders and that the appellants did not have a statutory right of appeal to this court from the making of such orders.
The appellants submitted that the orders made by her Honour on 15 April 2019, particularly orders 1 and 3, were 'final orders' that referred to and dismissed the appeal notices filed 1 March 2019, thereby dismissing their appeals. Accordingly, they contend, each appeal was competent pursuant to s 16(2)(b) of the CAA, which confers a right of appeal upon a person who, relevantly, is aggrieved by a decision made in a single judge appeal that dismisses or decides an appeal.
Legal principles
An appeal is a creature of statute. The court does not have jurisdiction to hear and determine an appeal unless a statute so provides.[2]
[2] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2].
The CAA covers the field in relation to appeals from statutory offences.[3]
[3] Allbeury [16], [184].
This court's jurisdiction to decide appeals from a single judge of the General Division of the Supreme Court is found in pt 2 div 3 of the CAA. Section 16 of the CAA sets out the right of appeal to this court from decisions made by a single judge of the General Division of the Supreme Court in these terms:
16. Right of appeal to Court of Appeal
(1)A person whose application to extend the time to commence an appeal under Division 2 is refused by a single judge of the Supreme Court sitting in its General Division may appeal to the Court of Appeal against the decision.
(2)A party to an appeal under Division 2 who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court sitting in its General Division that -
(a)refuses leave to appeal; or
(b)dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
(3)The Attorney General may appeal to the Court of Appeal against a decision referred to in subsection (1) or (2).
Subject to s 16(3), it is plain from the text of s 16 of the CAA that the right of appeal to this court from a decision of a single judge is limited to:
(a)a person whose application to extend the time to commence an appeal under pt 2 div 2 is refused (s 16(1)); and
(b)a party to an appeal under pt 2 div 2 who is aggrieved by a decision of a single judge to refuse leave to appeal or to dismiss or decide an appeal (s 16(2)).
Relevantly to these proceedings, s 16 of the CAA does not confer jurisdiction on this court to hear and determine an appeal from an interlocutory procedural order made by a single judge in an appeal under pt 2 div 2.
None of the orders made by Strk AJ on 15 April 2019 were orders of the kind described in s 16(1) and (2) of the CAA. Order 1 of the orders made on 15 April 2019 confirmed the procedural orders made on 2 April 2019 and order 3 denied the appellants' request to deal with certain matters before the hearing of the appeal before a single judge. All of the orders made by Strk AJ were procedural in nature to facilitate the orderly and efficient determination of the appeals. Contrary to the appellants' submissions, they did not have the effect of dismissing or deciding the appeals.
Further, contrary to the appellants' submissions, order 3 did not refer to the appeal notices filed 1 March 2019. Although the appeal notices in SJA 1029 of 2019 and SJA 1030 of 2019 were each filed on 1 March 2019, applications were also filed by the appellants in each appeal on the same day. Those applications were each signed by the appellants. They relevantly sought that 'the Court determine a question of law or procedure' prior to the hearing of the appeal. Her Honour's reference in order 3 to 'applications lodged by the appellant on 1 March 2019' is to these applications.
As this court has no statutory power to hear and determine an appeal against the orders made by Strk AJ on 15 April 2019, the appeals were incompetent and were dismissed. However, we observe that, even if this court had jurisdiction to hear and determine an appeal against the orders, any such appeal would fail. Contrary to the appellants' submissions, the orders were entirely appropriate. The appellant's submissions to the contrary were, in substance, founded on their erroneous understanding that the effect of her Honour's orders was to dismiss the appeal.
As was made clear to the appellants at the hearing on 22 August 2019, the effect of the dismissal of their appeals to this court is that the appellants are at liberty to proceed with their appeals before a single judge of the General Division of the Supreme Court. Those appeals will be heard and determined on their merits and, if leave to appeal is refused or the appeals are dismissed, each appellant has a right to appeal to this court pursuant to s 16 of the CAA.
Costs
The respondent sought costs against each appellant as a result of the dismissal of their appeals. Counsel for the respondent provided a schedule of costs and sought costs against the appellants in the total sum of $3,267, not including for the hearing on 22 August 2019.
By s 19(2)(b) of the CAA, this court may make an order as to the costs of the appeal. Section 4(2) of the CAA provides, relevantly, that in the CAA, unless the contrary intention appears, 'appeal' means 'an appeal under this Act or an application for leave to appeal under this Act'. Construing the power‑conferring provision in s 19(2)(b) as liberally as its terms and context permit,[4] the expression 'the costs of the appeal' is wide enough to include the costs of a purported appeal that is dismissed as incompetent. Under s 19(2)(b), there is no general rule that costs follow the event; rather, save that the discretion must be exercised judicially, the court has a general and unconstrained discretion with respect to costs to be exercised with reference to all relevant circumstances including any relevant aspect of the public interest, except in certain limited cases which do not apply for present purposes.[5]
[4] PMT Partners Pty Ltd v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313. See also s 14(1)(h) read with s 18 of the CAA.
[5] See Fitas v O'Brien [2017] WASCA 147 [14]; The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) [10]; City of Armadale v Merrick [2014] WASCA 125 (S) [6] and Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80 [5], [10].
In the present case, a costs order against the appellants was appropriate because: (a) the appeals were plainly incompetent; (b) in any event, there was no merit in the appeals; (c) the appellants were put on notice in proceedings before a single judge of this court on 5 June 2019 that the appeals may be incompetent;[6] and (d) there was no relevant aspect of public interest in the case that militates against making an order for costs.
[6] Appeal ts 7.
The appellants submitted that they should not be required to pay costs because, amongst other things, they are impecunious. The appellants' impecuniosity alone did not justify denying the respondent's costs in this case.[7] Their other arguments against the making of a costs order, which included a misconceived attempt to blame the court for accepting their appeal papers for filing, were without merit.[8]
[7] See Northern Territory v Sangare [2019] HCA 25 [26].
[8] Appeal ts 30 - 31.
As to the quantum of costs, in our view, the total sum of $1,000 divided equally between the appellants was appropriate, having regard to the fact that the ill‑informed character of the proceedings would have been obvious immediately to a legal practitioner.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Mazza30 AUGUST 2019
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