Porter v Kelly

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

In the case of Porter v Kelly, the appellant, Porter, sought to appeal against the decision of a single judge regarding the award of costs. The matter was before the court to determine the principles applicable to the awarding of costs in cases where the appellant has succeeded and where a question of law of public importance has been raised that turns on the unique facts of the case. The central issue before the court was the appropriate approach to the assessment of costs in these circumstances.

The court considered the relevant principles governing the awarding of costs in cases where the appellant has been successful but where a broader question of law has been raised. The court noted that while the appellant’s success in the proceedings was a significant factor, the court must also consider whether the broader legal issue raised was of public importance and whether it turned on the unique facts of the case. The court examined the precedents and articulated the balance that must be struck between the principle of the "loser pays" and the need to ensure that significant legal issues are adequately funded.

After a detailed examination of the relevant principles and the facts of the case, the court concluded that the single judge had correctly applied the principles to the facts of the case. The court found that the single judge had appropriately assessed the significance of the legal issue and its reliance on the unique facts in determining the appropriate award of costs. The court upheld the decision of the single judge, affirming the principles that must be considered in such cases and affirming the single judge's exercise of discretion in light of those principles. The appeal was dismissed, and the costs awarded by the single judge were upheld.

No further orders were made by the court, as the appeal was dismissed and the costs decision was affirmed. The court's reasoning and conclusion provide important guidance for future cases involving similar issues, reinforcing the need to balance the principle of the "loser pays" with the importance of funding significant legal issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established