Steelmakers Pty Ltd v City of Swan
[2014] WASC 449 (S)
•8 JANUARY 2015
STEELMAKERS PTY LTD -v- CITY OF SWAN [2014] WASC 449 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 449 (S) | |
| Case No: | SJA:1011/2014 | ON THE PAPERS BY SUBMISSIONS OF 9 DECEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 8/01/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs refused | ||
| B | |||
| PDF Version |
| Parties: | STEELMAKERS PTY LTD CITY OF SWAN BAYBLUE HOLDINGS PTY LTD |
Catchwords: | Appeals Summary offences Legal costs Single Judge Appeals Two appeals heard together Jurisdiction to award costs |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h) Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5 Suitors' fund Act 1964 (WA), s 10 |
Case References: | Lafou Pty Ltd v Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87 Steelmakers Pty Ltd v City of Swan [2014] WASC 449 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF SWAN
Respondent
- Appellant
AND
CITY OF SWAN
Respondent
ON APPEAL FROM:
For File No : SJA 1011 of 2014
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : MI 10835 of 2013
For File No : SJA 1012 of 2014
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : MI 10838 of 2013, MI 10839 of 2013
Catchwords:
Appeals - Summary offences - Legal costs - Single Judge Appeals - Two appeals heard together - Jurisdiction to award costs
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5
Suitors' fund Act 1964 (WA), s 10
Result:
Costs refused
Category: B
Representation:
SJA 1011 of 2014
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Jackson McDonald
Respondent : McLeods Barristers & Solicitors
SJA 1012 of 2014
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Jackson McDonald
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Lafou Pty Ltd v Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87
Steelmakers Pty Ltd v City of Swan [2014] WASC 449
1 KENNETH MARTIN J: In the aftermath of my reasons for decision of 26 August 2014, see Steelmakers Pty Ltd v City of Swan [2014] WASC 449, the appellants now move the Court for their costs on each appeal. As will be recalled, BBH was successful in having its conviction quashed at the appeal - but on the basis of a legal point which was not raised at all towards its exoneration, before the learned magistrate. In fact, both BBH and Steelmakers Pty Ltd had submitted pleas of guilty through their non-legally qualified directors, when these summary offences were dealt with at first instance.
2 Steelmakers also appealed to this Court, but did not challenge its underlying conviction. Rather, its concern was only the level of the fine imposed against it by way of penalty, which it argued was manifestly excessive and had been imposed under misapprehensions as to the correct underlying facts and circumstances by the learned magistrate. Steelmakers also succeeded at the appeal on its arguments. The consequence was that I effectively needed to resentence Steelmakers - imposing a fine of significantly less magnitude than originally imposed.
3 In those outcome circumstances, both BBH and Steelmakers now seek their costs of their appeals.
4 The present circumstances are, of course, not the same as a civil litigious dispute - where in ordinary circumstances the successful litigant will expect to receive an award of costs - on the basis that costs follow the event; cf RSC O 66 r 1(1).
5 Both appellants invoke s 14(1)(h) of the Criminal Appeals Act 2004 (WA), which provides as follows:
14. Supreme Court's powers on an appeal
(1) In deciding an appeal, the Supreme Court may do one or more of the following -
…
(h) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
7 It is convenient to set out s 5(1) and (3) - (5) of the Official Prosecutions Act. It provides:
5. Successful accused entitled to costs
(1) Subject to this Act, a successful accused is entitled to his costs.
…
(3) Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
(4) Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.
(5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a costs determination (as defined in the Legal Profession Act 2008 section 252).
9 Both BBH and Steelmakers have provided written submissions (of 9 December 2014) in furtherance of their respective applications for costs.
10 For its part, the City of Swan, as respondent, has filed no submissions other than to inform the Court by an email to my Associate of 19 December 2014 that should any costs orders be made favouring the appellants, then the respondent in that event would seek a certificate in its favour, under s 10 of the Suitors' Fund Act 1964 (WA), on the basis that the appeals had been successful based upon errors of law by the learned magistrate.
Outcomes on costs
11 In the end result, I am of the view that neither appellant should receive any award of costs in respect of the outcome of these two appeals. My reasons for those conclusions are explained below.
12 In the case of BBH, its success in having its conviction quashed on appeal meets the criteria of s 5(4) of the Official Prosecutions Act in order to enliven a jurisdiction to award BBH its costs of the appeal. However, as a matter of discretion as regards s 5, and s 14 of the Criminal Appeals Act, I assess it as inappropriate to take that course. The underlying circumstances here were wholly unique, in that BBH's initial plea of guilt has, on appeal, under leave, been resiled from. Some errors were indeed made below by the learned magistrate. But the point of law that effectively emerged afresh at the appeal (again by leave) was not mentioned at all below. Whilst I allowed the legal submissions concerning the SAT decision in Lafou Pty Ltd v Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87 to be argued and evaluated at the appeal hearing, the point was only ever evaluated once as regards BBH's innocence at the appeal. The Lafou point also only occupied a relatively small aspect of the hearing time consumed by the two appeals, when they were heard, in my view. Hence, there should be no appeal costs awarded to BBH.
13 As regards Steelmakers, its conviction (on its plea of guilty) has not been disturbed, albeit its punishment by fine has been significantly reduced in quantum, after the appeal. I would not think it appropriate here to award the costs of its appeal to Steelmakers, given all the underlying circumstances. Due to a number of errors by the prosecution and the learned magistrate, the appeal grounds raised by Steelmakers challenging the level of its fine were ultimately made good on appeal. But Steelmakers did not help its cause at all at first instance, when its director representative, Mr Birighitti, attended and attempted to speak in mitigation of his corporation's culpability. Steelmakers' failure to invest in any legal representation at first instance has now been demonstrated, with hindsight, to be a false economy for it. There is no suggestion Steelmakers (or BBH) could not afford proper legal representation.
14 Steelmakers' first instance penalty outcome has now been adjusted downwards on the appeal. But the whole appellate process might have been avoided had the first instance proceedings been afforded a greater legal resourcing priority by Steelmakers. Steelmakers' conviction, of course, remains in place. In all the circumstances, I am not persuaded that the Court's discretion to award costs in its favour is appropriately used here - even if the jurisdiction to render that result has been engaged.
15 In these circumstances, it is not necessary to evaluate the respondent's argument seeking a certificate under the Suitors' Fund Act. Had I needed to, I would have been very troubled about taking that step of granting a certificate, by reason of the significant contributions by the respondent as prosecutor, to the unfortunate derailment events that unfolded before the learned magistrate and contributed to these appeals happening.
16 The appellants' applications for the costs of these appeals are therefore refused.
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