MJM v BNZ
[2024] WASC 416 (S)
•17 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MJM -v- BNZ [2024] WASC 416 (S)
CORAM: MUSIKANTH J
HEARD: ON THE PAPERS
DELIVERED : 17 DECEMBER 2024
FILE NO/S: SJA 1033 of 2024
BETWEEN: MJM
Appellant
AND
BNZ
Respondent
ON APPEAL FROM:
For File No: SJA 1033 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J ANDRETICH
File Number : MR 300/2023; MR 301/2023
Catchwords:
Costs - Single judge appeal - Financial hardship - Proper exercise of discretion - Turns on own facts
Legislation:
Nil
Result:
Appellant ordered to pay the respondent's costs fixed in the sum of $3,850
Category: B
Representation:
Counsel:
| Appellant | : | No appearance (on the papers) |
| Respondent | : | No appearance (on the papers) |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Hunter v City of Joondalup [2018] WASCA 166 (S)
MJM v BNZ [2024] WASC 416
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 8 November 2024, the court handed down its reasons in MJM v BNZ.[1]
[1] MJM v BNZ [2024] WASC 416.
Leave to appeal was refused on 18 of the appellant's 19 grounds, and the appeal itself was dismissed as was an application for leave to adduce further evidence.
The parties were subsequently directed to file and serve a joint memorandum of consent orders or alternatively competing minutes of proposed orders as to costs, with submissions, if they could not agree costs.
The parties were unable to agree costs.
The respondent seeks an order that the appellant pay the respondent's costs fixed in the sum of $3,850 as per a bill of costs dated 8 November 2024.
The appellant does not expressly contend costs should not be ordered against him.
However, he says he is currently experiencing financial hardship and has recently completed payment of the fines the subject of the appealed charges through a program at a community centre.
According to his submissions, the appellant was uncertain whether the respondent's costs could also be paid through that program. He appears to have been in contact with the community centre about this.
Further, the appellant has filed a purported 'application to reduce a fee'. Whilst appreciating the respondent's costs are not court fees, the appellant says he filed this document in order to disclose his financial situation to this court for consideration.
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 no 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) [10] (Martin CJ, Beech AJA agreeing); The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) [10] (Pullin, Newnes & Mazza JJA).
Those circumstances include:
(a)whether the unsuccessful party commenced the proceedings;
(b)the result of the proceedings;
(c)whether the unsuccessful party's submissions were accepted in part by the court; and
(d) whether the appeal involved a point of law of public importance, or point of law that required reconciliation of conflicting authority.[3]
[3] Wilson [18]; Ginbey [11]; Thomas v Kent [2014] WASC 23 (S) [7] (Allanson J).
An order for costs in a fixed sum avoids the expense and delay of taxation, but the power to make such an order should only be exercised when the court considers that it can determine the amount fairly.[4]
[4] Thomas [10].
The ability of a person to meet a costs order cannot be accorded weight in the exercise of the court's discretion as to costs.[5]
[5] Hunter v City of Joondalup [2018] WASCA 166 (S) [9].
Returning to the proper exercise of the general discretion in this case, the following factors are relevant.
First, the appellant commenced the appeal. Secondly, the proceedings were wholly unsuccessful. Thirdly, none of the appellant's submissions were ultimately accepted. Fourthly, although one of the appellant's grounds required reconciliation of earlier conflicting authority, the ground did not raise a question of significant public importance but rather, as the respondent correctly observes, a technical point related to the proof of certain matters in the Magistrates Court. The court's conclusion on the point did not resolve questions relating to substantive rights or duties, and the conflicting authority was, in any event, identified by the respondent.
As noted earlier, ability to meet a costs order cannot be accorded weight in the exercise of the costs discretion and I do not, in any event, understand the appellant to contend that a costs order should not be made against him.
Regrettably, the queries raised by the appellant concerning the manner in which any costs ordered against him may be paid are not matters with which the court itself can assist as part of the process of finalising this matter.
The respondent's bill of costs suggests that payment of 10 hours is sought for preparation plus two hours for the appeal hearing itself. All of this time has been charged at less than the applicable rate for a junior practitioner under the relevant determination.
The total amount sought by the respondent is eminently reasonable; particularly noting the extent of work which was likely involved in addressing the many grounds raised.
In all the circumstances I consider it appropriate that the appellant be ordered to pay the respondent's costs fixed in the sum of $3,850.
I so order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
17 DECEMBER 2024
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