THOMAS -v- KENT [2014] WASC 23 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 23 (S)
Case No:	SJA:1074/2013	Heard:	ON THE PAPERS
Coram:	ALLANSON J	Delivered:	19/02/14
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellant to pay respondent's costs fixed in the amount of $1,896
Category:	B
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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

CITATION : THOMAS -v- KENT [2014] WASC 23 (S) CORAM : ALLANSON J HEARD : ON THE PAPERS DELIVERED : 19 FEBRUARY 2014 FILE NO/S : SJA 1074 of 2013 BETWEEN : SIMON THOMAS

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomas v Kent

Details

AGLC: Thomas v Kent [2014] WASC 23 (S)
Case: [2014] WASC 23 (S)
Decision Date: 19 FEBRUARY 2014

CaseChat Overview and Summary

In Thomas v Kent, the appellant, Thomas, appealed against the decision of the Magistrates Court of Western Australia, which had found him guilty of an offence under the Criminal Code. The respondent, Kent, was the complainant in the matter. The appeal was centred on the assessment of costs ordered by the lower court, specifically regarding whether the magistrate had considered all relevant public interest factors under the Criminal Appeals Act 2004 (WA) when determining the costs order.

The central legal issue before the court was whether the magistrate had correctly exercised their discretion under the Act by failing to adequately consider the public interest factors when ordering the appellant to pay the respondent's costs. The appellant argued that the magistrate had overlooked specific public interest considerations that should have influenced the costs order. Conversely, the respondent maintained that the magistrate had appropriately exercised their discretion and that the order was justified.

The court examined the magistrate's decision-making process and the statutory requirements under the Criminal Appeals Act 2004 (WA). It held that the magistrate had not sufficiently articulated the public interest factors considered in making the costs order. The court found that this omission constituted an error in the exercise of discretion. Consequently, the appeal was allowed in part, and the matter was remitted to the magistrate for reconsideration of the costs order with proper regard to the public interest factors. The court ultimately determined that the appropriate costs to be awarded were $1,896, and ordered the appellant to pay this amount to the respondent.

Orders

Orders of the court

Appellant to pay respondent's costs fixed in the amount of $1,896

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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