Thomas v Kent
[2014] WASC 23 (S)
•19 FEBRUARY 2014
THOMAS -v- KENT [2014] WASC 23 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 23 (S) | |
| Case No: | SJA:1074/2013 | ON THE PAPERS | |
| Coram: | ALLANSON J | 19/02/14 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs fixed in the amount of $1,896 | ||
| B | |||
| PDF Version |
| Parties: | SIMON THOMAS STEVEN MICHAEL KENT |
Catchwords: | Practice and procedure Costs Criminal Appeals Act 2004 (WA) Public interest factors Appeal against offence of a regulatory character Discretion Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h) Road Traffic Code 2000 (WA) |
Case References: | Brookvista Pty Ltd v Meloni [2009] WASCA 180 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Thomas v Kent [2014] WASC 23 Wilson v McDonald [2009] WASCA 39 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
STEVEN MICHAEL KENT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
File No : PE 17504 of 2013
Catchwords:
Practice and procedure - Costs - Criminal Appeals Act 2004 (WA) - Public interest factors - Appeal against offence of a regulatory character - Discretion - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h)
Road Traffic Code 2000 (WA)
Result:
Appellant to pay respondent's costs fixed in the amount of $1,896
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J F Bennett
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Thomas v Kent [2014] WASC 23
Wilson v McDonald [2009] WASCA 39 (S)
1 ALLANSON J: On 4 February 2014, I dismissed Mr Thomas' appeal against a conviction for riding a bicycle when not wearing a protective helmet: Thomas v Kent [2014] WASC 23. The respondent asked for an order that Mr Thomas pay his costs of the appeal. Because Mr Thomas could not be present at the handing down of the decision, I adjourned the question of costs and invited the parties to make short written submissions.
2 Under s 14(1)(h) of the Criminal Appeals Act 2004 (WA), the court may make an order as to the costs of the appeal. The respondent submitted that the discretion to make an order under s 14(1)(h) is not constrained, but is to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest: see Wilson v McDonald [2009] WASCA 39 (S) [5]. The respondent relied essentially on the consideration that the appellant instituted the appeal, and the respondent was required to respond and incurred costs that would otherwise be met by the public. The respondent referred also to the number of grounds, raising a wide range of issues. That is a matter which goes more to the amount of costs, than whether Mr Thomas should be required to pay them.
3 The respondent also provided a draft bill, inviting the court to fix costs.
4 Mr Thomas relied essentially on public interest factors. He submitted that he had raised important questions about the drafting and interpretation of the Road Traffic Code 2000 (WA), and the appeal had served the public good. He further submitted that in criminal proceedings, where the person accused has no possibility to negotiate or mediate an out of court outcome, it is proper for the State to bear the costs. He submitted that it is against the public interest to award costs in criminal matters, except in exceptional circumstances.
5 Mr Thomas also said that an award of costs might impose hardship. There is, however, no evidence that an award in the sum asked would be an unreasonable burden.
6 The decision in Wilson v McDonald affirms that the ordinary rule that costs follow the event does not apply in criminal proceedings. Martin CJ noted the distinction between appeals regarding the enforcement of the criminal law, and appeals regarding offences that have a regulatory character and may be more analogous to civil proceedings. But I did not understand his Honour to suggest that the 'ordinary rule' applies in appeals on regulatory offences. At [8], Martin CJ discussed the supervisory character of the appellate jurisdiction from magistrates, and the importance of clarification and elucidation of the law - a factor present in both 'regulatory' and 'criminal' matters.
7 I have, accordingly, approached this question on the basis that there is no ordinary rule, and have had regard to the following matters. First, Mr Thomas instituted the appeal, and has not succeeded. Second, the appeal involved questions of fact and also two issues of law regarding the Road Traffic Code. Third, I do not agree that there were important questions about the drafting and interpretation of the Road Traffic Code. Essentially, it was a question of the application of the regulations to the facts. In my opinion, there was no matter of particular public importance.
8 In my opinion, this is a proper case for the costs to follow the event and Mr Thomas should pay the respondent's costs.
9 The respondent asks the court to fix costs, and has submitted a draft bill, based on six hours' work, including all preparation, drafting of submissions, and appearance at the hearing. The rate claimed is for a junior practitioner.
10 The power to award a fixed sum avoids the expense and delay of a taxation, but should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum: see Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] [27]; Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 [22]. In a matter like the present, the judge who heard the appeal will often be in a good position to make an assessment of the kind required. I am satisfied that I can.
11 There were nine grounds of appeal, some raising questions of fact. The respondent needed to address each of them. The time claimed by the respondent is reasonable, and the rate appropriate.
12 The order will be:
The appellant pay the respondent's costs of the appeal, fixed in the amount of $1,896.
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