Smolarek v Roper

Case [2009] WASCA 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SMOLAREK -v- ROPER [2009] WASCA 124

CORAM:   WHEELER JA

PULLIN JA
NEWNES JA

HEARD:   6 MAY 2009

DELIVERED          :   16 JULY 2009

FILE NO/S:   CACV 68 of 2008

BETWEEN:   HANNA SMOLAREK

Appellant

AND

NICHOLAS KENNETH ROPER
Respondent

FILE NO/S              :CACR 105 of 2008

BETWEEN             :HANNA SMOLAREK

Appellant

AND

NICHOLAS KENNETH ROPER
Respondent

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:

Jurisdiction - Plea that Magistrates Court had no jurisdiction - Criminal Procedure Act 2004 (WA), s 126, s 127 - Whether there had been trial of issue of jurisdiction

Power of ASIC to prosecute for offence under Corporations Act 2001 (Cth) - Effect of s 1315 of Corporations Act - Whether s 49 of ASIC Act limits power of ASIC to prosecute

Appeal against conviction - Whether prosecution notice invalid - Issue relevant to charge the subject of a finding in earlier civil proceedings in superior court - Whether binding in prosecution - Whether charge proved beyond reasonable doubt - Adequacy of reasons of primary judge - Allegation of bias - Extent of intervention by judge in course of hearing where litigant in person - Turns on own facts

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 49
Corporations Act 2001 (WA), s 1315
Criminal Procedure Act 2004 (WA), s 126, s 127

Result:

Appeal in CACV 68 of 2008 dismissed

Appeal in CACR 105 of 2008 dismissed

Category:    B

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):

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630

Johnson v Johnson (2000) 201 CLR 488

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; [2004] WASCA 149

Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246

Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Mulligan; Ex parte Isidorso [1979] WAR 198

Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78

Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193

Smolarek v Brian Keith McMaster as administrator of Eznut Pty Ltd [No 2] [2008] WASCA 234

Smolarek v McMaster [2006] WASC 109; (2006) 58 ACSR 199

Vakauta v Kelly (1989) 167 CLR 568

  1. WHEELER & PULLIN JJA:  We agree with the reasons of Newnes JA.

  2. At the beginning of…

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AGLC
Smolarek v Roper [2009] WASCA 124
Case
[2009] WASCA 124
Decision Date

CaseChat Overview and Summary

In the matter of Smolarek v Roper, the appellant, Smolarek, appealed against two decisions made by Templeman J. The first appeal, CACV 68 of 2008, was against a decision dismissing an application to set aside her conviction on the basis that the Magistrates Court lacked jurisdiction. The second appeal, CACR 105 of 2008, was against a decision denying leave to appeal against the conviction. The appeals raised several issues, including the jurisdiction of the Magistrates Court, the power of the Australian Securities and Investments Commission (ASIC) to prosecute under the Corporations Act 2001 (Cth), the validity of the prosecution notice, and the adequacy of reasons provided by the primary judge.

The primary legal issues revolved around whether the Magistrates Court had jurisdiction to try the case, whether ASIC's power to prosecute was limited by section 49 of the ASIC Act, the validity of the prosecution notice given the outcome of earlier civil proceedings, and whether the prosecution proved its case beyond reasonable doubt. Additionally, the appeals addressed the adequacy of the primary judge's reasons, allegations of bias, and the extent of judicial intervention in the case where the litigant was unrepresented.

The court found that the Magistrates Court had jurisdiction to try the case and that ASIC's power to prosecute was not limited by section 49 of the ASIC Act. It held that the prosecution notice was valid and that the prosecution had proved its case beyond reasonable doubt. The court also concluded that the primary judge's reasons were adequate, there was no evidence of bias, and the intervention by the judge was appropriate given the circumstances of the case. Consequently, the appeals were dismissed, and the respondent applied for an order for costs against the appellant.

The court considered various arguments put forward by the appellant against the imposition of costs, such as the applicability of section 35 of the Criminal Appeals Act 2004 (WA), the lack of jurisdiction in the substantive matter, the wrongful conviction, the grounds on which the appeal turned, and the appellant's financial hardship. The court rejected these arguments, affirming that the usual order is that costs follow the event, and denied the appellant's request for departure from this principle. The appeal in CACV 68 of 2008 and the appeal in CACR 105 of 2008 were both dismissed.

Orders

Orders of the court

Appeal in CACV 68 of 2008 dismissed

Appeal in CACV 105 of 2008 dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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. 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. 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'. 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. 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.

Ratio Decidendi

Legal Principle Established

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