JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE HOUSE OF RELOCATORS PTY LTD -v- GINBEY [2014] WASCA 94 (S) CORAM : PULLIN JA HEARD : ON THE PAPERS DELIVERED : 24 JUNE 2014 FILE NO/S : CACR 121 of 2013 BETWEEN : THE HOUSE OF RELOCATORS PTY LTD Appellant
AND
KEITH NEVILLE GINBEY
Respondent
FILE NO/S : CACR 122 of 2013 BETWEEN : PHILLIP WILLIAM CARTER Appellant
AND
KEITH NEVILLE GINBEY
Respondent
ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : McKECHNIE J
Citation : THE HOUSE OF RELOCATORS PTY LTD -v- GINBEY [2013] WASC 188
File No : SJA 1100 of 2012, SJA 1102 of 2012
Catchwords:
Criminal law - Appeal against sentence - Application for costs - Turns on own facts
Legislation:
Animal Welfare Act 2002 (WA), s 19(1), s 55(1)
Criminal Appeals Act 2004 (WA), s 14, s 18, s 19(2)(b), s 20 Result:
Costs orders made
Category: B
Representation:
CACR 121 of 2013
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Earnshaw & Associates
Respondent : Minter Ellison
CACR 122 of 2013
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Earnshaw & Associates
Respondent : Minter Ellison
Case(s) referred to in judgment(s):Barbaro v The Queen [2014] HCA 2The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94Wilson v McDonald [2009] WASCA 39 (S)1 REASONS OF THE COURT: On 2 May 2014, this court dismissed the appellant's appeals against decisions made by McKechnie J: The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94. The only issue which remains is the question of costs, both in the single judge appeal and in the appeal to this court. The parties agreed that the issue should be decided on the papers. Each party has taken the opportunity to file written submissions which have been carefully considered. 2 The relevant background is as follows. The House of Relocators Pty Ltd is a company owned and controlled by Phillip William Carter. Mr Carter pleaded guilty in the Midland Magistrates Court to four counts of animal cruelty contrary to s 19(1) of the Animal Welfare Act 2002 (WA). The House of Relocators Pty Ltd pleaded guilty to one count of animal cruelty.
3 On 9 August 2012, his Honour Magistrate Benn fined Mr Carter a total of $83,000 and made an order that he be imprisoned for 6 months and 1 day suspended for 2 years. He also ordered, pursuant to s 55(1) of the Animal Cruelty Act and subject to certain exceptions, that Mr Carter be permanently prohibited from being in charge of any animal. The learned magistrate fined The House of Relocators Pty Ltd $30,000 and made a prohibition order in similar terms to the order made in respect of Mr Carter.
4 The appellants appealed against the sentences imposed upon them to McKechnie J. Each appellant's grounds of appeal were, in substance, identical. It was alleged that the sentences and orders were manifestly excessive. McKechnie J upheld Mr Carter's appeal in part, to the extent that he set aside the suspended imprisonment order. Mr Carter's appeal was otherwise dismissed. The appeal by The House of Relocators Pty Ltd was dismissed. His Honour gave liberty to the parties to file written submissions as to the costs of the appeals. A perusal of the relevant files has revealed that no submissions were filed. The certificates of conclusion in each appeal make no mention of any costs order. Accordingly, the question of costs in the proceedings before McKechnie J was not dealt with.
5 Each of the appellants then appealed to this court. Their grounds of appeal were identical. Ground 1 alleged that the permanent prohibition imposed was manifestly excessive. Ground 2 alleged that the fines imposed on each appellant were manifestly excessive. Leave to appeal was granted in respect of ground 1. The question of leave on ground 2 was referred to the hearing of the appeal. This court found that there was no merit in either ground in each appeal. Accordingly, the appeals were dismissed.
6 The respondent seeks an order that the appellants pay his costs in respect of each appeal to the single judge and to this court. The appellants submitted that no order for costs should be made in the appeals.
7 Mr Carter submitted that in the single judge appeal he was largely successful because the learned judge set aside the suspended imprisonment order. The respondent submitted that, while the suspended imprisonment order was set aside, he conceded the point prior to the hearing, and that the real issue to be determined by his Honour was whether the fines and prohibition order were manifestly excessive. As to these issues, the appellant failed.
8 Otherwise, the submissions of Mr Carter and The House of Relocators Pty Ltd as to costs were identical. They submitted that no order as to costs should be made because:
1. of the alleged public interest in the appeals insofar as they 'clarified and elucidated on points of law'; 2. in the proceedings before this court, leave to appeal was granted on ground 1; and
3. each appellant will suffer hardship if costs orders are made.
9 There is no issue that this court has the power to make a costs order in respect of the proceedings before the single judge (s 18 of the Criminal Appeals Act 2004 (WA) read with s 14 of that Act) and of the appeal to this court (s 19(2)(b) of the Criminal Appeals Act). The power to award costs pursuant to these provisions is constrained by s 20 of the Criminal Appeals Act, but that section does not apply to these proceedings. 10 In Wilson v McDonald [2009] WASCA 39 (S) [10], Martin CJ, with whom Beech AJA agreed, held that the provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Outside the specific topics covered by s 20 of that Act, the Act should be construed as conferring a general and unconstrained discretion with respect to costs to be exercised with reference to all relevant circumstances, including any relevant aspect of the public interest.
11 In the present case, the following factors are relevant to the exercise of that discretion:
(1) Mr Carter succeeded in his single judge appeal to the extent that the suspended imprisonment order was set aside. However, he did not succeed on the question of the quantum of the fines or the imposition of a permanent prohibition order. (2) The House of Relocators Pty Ltd failed in its appeal to the single judge.
(3) Both appellants failed in their appeals to this court.
(4) None of the appeals involved matters of exceptional public importance. The appeals did not concern the construction of the Animal Cruelty Act. Rather, the appeals were determined on their particular facts in the light of well-established general principles concerning appeals against sentence. The appellants noted, in their written submissions, the reference in the reasons of this court to the High Court's recent decision in Barbaro v The Queen [2014] HCA 2. Barbaro was not raised by the appellants. Rather, the bench raised it. This court has done no more than apply the principles set out by the majority in that case.
(5) None of the appellants' arguments were accepted in this court. The fact that leave to appeal was granted on ground 1 is of little weight. The threshold justifying a grant of leave is relatively low. A decision about leave, made as it was in this case on the papers, is made in the absence of written submissions from the respondent and without full argument. In this case, once the written submissions of the respondent were considered and the oral argument heard, it was apparent that there was no merit in ground 1.
12 As to the issue of hardship, assuming it to be a relevant factor, the evidence before this court was insufficient to demonstrate the hardship asserted by the appellant. 13 In our opinion, the respondent should have his costs in the appeal to this court to be taxed. In respect of the proceedings before McKechnie J, as the appellant Mr Carter was partially successful in that appeal, the appropriate order is that there be no costs in respect of it. However, the respondent should have his costs in respect of the appeal by The House of Relocators Pty Ltd to be taxed.
14 We would make the following costs orders:
1. The House of Relocators Pty Ltd shall pay the respondent's costs in CACR 121 of 2013 to be taxed if not agreed. 2. Phillip William Carter shall pay the respondent's costs in CACR 122 of 2013 to be taxed if not agreed.
3. There will be no order as to costs in respect of SJA 1102 of 2012 between Phillip William Carter and the respondent.
4. The House of Relocators Pty Ltd shall pay the respondent's costs in respect of SJA 1100 of 2012 to be taxed if not agreed.