Porter v Kelly
[2024] WASC 282
•25 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PORTER -v- KELLY [2024] WASC 282 (S)
CORAM: MUSIKANTH J
HEARD: ON THE PAPERS
DELIVERED : 25 SEPTEMBER 2024
FILE NO/S: SJA 1002 of 2024
BETWEEN: MICHELLE PORTER
Appellant
AND
DAWN MICHELLE KELLY
Respondent
ON APPEAL FROM:
For File No: SJA 1002 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S OLIVER
File Number : PE 3280/2023
Catchwords:
Costs - Single judge appeal - Where appellant successful - Relevant principles - Where question of law of public importance raised - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h)
Result:
No order as to costs.
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Porter v Kelly [2024] WASC 282
The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S)
Wilson v McDonald [2009] WASCA 39 (S)
MUSIKANTH J:
On 7 August 2024, the Court handed down its reasons in Porter v Kelly.[1]
[1] Porter v Kelly [2024] WASC 282.
Leave to appeal was granted on both grounds advanced by the appellant, and the appeal was upheld. Consequently, the matter was remitted to the Magistrates Court to be heard and determined before a different magistrate according to law.
In the aftermath of that ruling, the parties were unable to agree costs. Consequently, the Court directed the parties file written submissions on the question.
The appellant seeks an order for the respondent to pay the appellant's costs, should be fixed in the sum of $4,906 as per a Draft Bill of Costs dated 9 August 2024. The respondent submits costs should not be awarded against the respondent.
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 in criminal appeals 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).
These circumstances include:
(1)Whether the unsuccessful party commenced the proceedings.
(2)The result of the proceedings.
(3)Whether the unsuccessful party's submissions were accepted in part by the court.
(4)Whether the appeal involved a point of law of public importance, or a point of law that required reconciliation of conflicting authority.
In this instance, the appeal was commenced by the successful party. Leave to appeal was granted on both grounds advanced, and the appeal upheld.
Further, as the appellant submits, none of the respondent's arguments were accepted by the Court.[3]
[3] Appellant's Submissions on Costs [6].
That said, the appeal did involve a point of law of at least some public importance.
Indeed, the point was fundamental to the outcome.
As is apparent from Porter v Kelly,[4] the point concerned the proper construction of provisions of the Road Traffic (Administration) Act 2008 (WA).
[4] Porter v Kelly [2024] WASC 282.
The question arising from the point was whether:[5]
it is open to a trier of fact to treat information recorded in a certificate purportedly issued pursuant to s 110(1) [of the Road Traffic (Administration) Act 2008 (WA)] as 'inadmissible', 'not admissible', or not 'validly [capable of being] adduced', so as to exclude it from consideration as admissible evidence for the purposes of the prosecution case. (emphasis in the original) (citations omitted)
[5] Porter v Kelly [27].
Having determined the answer to be 'no', the appeal was upheld.
In addition, and as explained in Porter v Kelly, the appeal came about because the learned trial magistrate found the respondent had no case to answer, and acquitted the respondent after making it clear she did not need to hear from the respondent.[6]
[6] Porter v Kelly [61].
It cannot therefore be said that any conduct on the part of the respondent contributed to this appeal.
In all the circumstances, I will not order the respondent to pay the appellant's costs.
In exercising my discretion in this way, I should stress that I do not accept the respondent's submissions as to why costs ought not be awarded against her.
In particular, I reject the respondent's contention that to award costs in favour of State, as the successful party, would be 'a hideous abuse of power'.
I similarly reject the respondent's contention that to award costs in favour of the appellant, in circumstances where the matter has been remitted to the Magistrates Court and therefore not yet finally determined, would be 'unconscionable' and 'predatory'.
To conclude, for the reasons identified earlier in this judgment, there will be no order as to costs.
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
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