Smolarek v Roper
[2009] WASCA 124 (S)
•16 JULY 2009
SMOLAREK -v- ROPER [2009] WASCA 124 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 124 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:68/2008 | 6 MAY 2009 & ON THE PAPERS | |
| Coram: | WHEELER JA PULLIN JA NEWNES JA | 16/07/09 | |
| 1/09/09 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs of appeal | ||
| B | |||
| PDF Version |
| Parties: | HANNA SMOLAREK NICHOLAS KENNETH ROPER |
Catchwords: | Costs Appellant unsuccessful on appeal Whether costs should follow the event Relevance of impecuniosity of appellant Appeal turned on matter not argued below Turns on own facts |
Legislation: | Nil |
Case References: | Scott v Secretary, Department of Social Security (No 2) [2000] FCA 450 Smolarek v Roper [2009] WASCA 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMOLAREK -v- ROPER [2009] WASCA 124 (S) CORAM : WHEELER JA
- PULLIN JA
NEWNES JA
DECISION : 1 SEPTEMBER 2009 FILE NO/S : CACV 68 of 2008 BETWEEN : HANNA SMOLAREK
- Appellant
AND
NICHOLAS KENNETH ROPER
Respondent
- Appellant
AND
NICHOLAS KENNETH ROPER
Respondent
(Page 2)
ON APPEAL FROM:
For File No : CACV 68 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : Templeman J
File No : CIV 1202 of 2008
For File No : CACR 105 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : Templeman J
File No : SJA 1024 of 2008
Catchwords:
Costs - Appellant unsuccessful on appeal - Whether costs should follow the event - Relevance of impecuniosity of appellant - Appeal turned on matter not argued below - Turns on own facts
Legislation:
Nil
Result:
Appellant to pay respondent's costs of appeal
Category: B
(Page 3)
Representation:
CACV 68 of 2008
Counsel:
Appellant : In person
Respondent : Mr S Vandongen
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
CACR 105 of 2008
Counsel:
Appellant : In person
Respondent : Mr S Vandongen
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450
Smolarek v Roper [2009] WASCA 124
(Page 4)
1 JUDGMENT OF THE COURT: On 16 July 2009, this court dismissed two appeals by the appellant. The first (CACV 68 of 2008) was an appeal against a decision of Templeman J of 15 May 2008 dismissing an application by the appellant for an order under s 36 of the Magistrates Court Act 2004 (WA) to set aside her conviction for an offence under the Corporations Act 2001 (Cth) on the ground that the Magistrates Court had no jurisdiction. The second appeal (CACR 105 of 2008) was against a decision of Templeman J of 4 July 2008 dismissing the appellant's application for leave to appeal against her conviction. See Smolarek v Roper [2009] WASCA 124.
2 The respondent has applied for an order for costs in respect of each of the appeals. That application is opposed by the appellant. The parties were given leave to file written submissions on the issue of costs and the issue was to be determined on the papers. Those submissions have now been filed.
Costs on appeal CACV 68 of 2008
3 While the court has a wide discretion in relation to the costs of an appeal, the usual order is that costs follow the event. That is because ordinarily it is just that the party who turns out to have unjustifiably brought the other party before the court should be required to pay the other party's costs.
4 The appellant resists an order for costs on a number of bases. First, that the effect of s 35 of the Criminal Appeals Act 2004 (WA) is that no order for costs can be made on the appeal. Secondly, that the court had no jurisdiction in the substantive matter and therefore has no power to award costs. Thirdly, that the appellant was wrongly convicted and it would be morally repugnant to punish her by the imposition of an order for costs. Fourthly, the ground on which the outcome of the appeal turned was not a matter argued in the courts below. Fifthly, the appellant is suffering financial hardship and would be unable to pay any costs awarded against her. In that connection, the appellant referred to s 16C of the Crimes Act 1914 (Cth), which provides, in effect, that before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person. Under s 3(2) of the Crimes Act, a 'fine' includes 'costs … ordered to be paid by offenders'.
5 In our view, none of those grounds provides any basis upon which it would be appropriate to depart from the general rule that costs follow the event.
(Page 5)
6 The first ground is misconceived. This was an appeal from the decision of a single judge on an application made under s 36(1) of the Magistrates Court Act and pursuant to O 56A of the Rules of the Supreme Court 1971 (WA). It was not an appeal under the Criminal Appeals Act. While s 36(5)(a) of the Magistrates Court Act provides, in effect, that in certain circumstances a court hearing an application under s 36(1) may order that the application be treated as if it were an appeal under the Criminal Appeals Act, it appears that no such order was made in this case. In any event, even if such an order had been made, for reasons we will come to when dealing with the appeal in CACR 105 of 2008, s 35 could have no application to the appeal.
7 Nor is there any substance in the appellant's next two grounds, to the effect that no offence was committed by her and that the court has no jurisdiction. They are simply an attempt by the appellant to re-agitate matters decided adversely to her in the substantive appeal.
8 In relation to the fourth ground, it is the case that on the appeal the question of jurisdiction turned on s 1315 of the Corporations Act, rather than s 49 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) as it had been argued both in the Magistrates Court and before Templeman J. We concluded that s 49 of the ASIC Act was irrelevant. However, the appeal in this court was fully argued on the basis of s 1315 of the Corporations Act and resisted throughout by the appellant.
9 Finally, the appellant says she is impecunious and for that reason no order for costs should be made against her. The appellant has filed an affidavit in which she says that she has not been gainfully employed since June 2005 and that she has exhausted all her savings. Since May 2009 she has been receiving support from Centrelink which is barely enough to sustain her.
10 We consider that the appellant's reliance on s 16C of the Crimes Act is again misconceived. Section 16C is contained in pt 1B of the Crimes Act, dealing with '[s]entencing, imprisonment and release of federal offenders' and, in particular, in div 2 of that part, dealing with '[g]eneral sentencing principles'. In our view, it is clear that s 16C is concerned with (relevantly) costs imposed in the sentencing process in relation to the offence; it is not concerned with the costs of an appeal of the present nature.
(Page 6)
11 The issue of impecuniosity is to be determined on ordinary principles, and, in particular, on the principle that the inability of an unsuccessful party to meet a costs order is not a sufficient reason to deny a successful party their costs: Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450.
12 In our view, costs should follow the event. We would therefore order that the appellant pay the respondent's costs of the appeal.
Costs on appeal CACR 105 of 2008
13 The appellant relies on similar grounds to resist an order for costs in this appeal. The appellant's reliance on s 35 of the Criminal Appeals Act is misconceived. Section 35 applies to appeals to the Court of Appeal under pt 3 of the Act; that is, to appeals in respect of matters dealt with on indictment in a superior court. This was not an appeal under pt 3. It was an appeal under div 3 of pt 2; that is, an appeal to the Court of Appeal from the decision of a single judge on an appeal from a court of summary jurisdiction. Pursuant to s 19 of the Act, on an appeal under div 3 of pt 2 the court may, among other things, make an order as to the costs of the appeal.
14 The appellant's contentions that no offence was committed by her and that the court has no jurisdiction in the matter are again simply an attempt to re-agitate matters decided adversely to her in the substantive appeal.
15 In respect of the outcome of the appeal, it is the case that on the appeal to this court the appellant was successful in one respect. We found that Templeman J erred in upholding the magistrate's finding that the appellant had contravened s 438B of the Corporations Act by failing to inform the administrator of the whereabouts of the company's 2002 - 2003 tax return. However, that finding was a minor part of the appeal, it was not essential to the appellant's conviction on the charge, and it did not alter the outcome. There was no substance in any other of the appellant's extensive grounds of appeal.
16 For the reasons we have given above, s 16C of the Crimes Act does not assist the appellant.
17 We are satisfied that it is appropriate the appellant pay the respondent's costs of this appeal.
(Page 7)
Conclusion
18 We would order that:
1. the appellant pay the respondent's costs of the appeal in CACV 68 of 2008 to be taxed; and
2. the appellant pay the respondent's costs of the appeal in CACR 105 of 2008 to be taxed.
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