TUANG -v- GADENNE [2015] WASC 383 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 383 (S)
Case No:	SJA:1123/2013	Heard:	15 OCTOBER 2015
Coram:	JENKINS J	Delivered:	22/01/16
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellant to pay the respondent's costs of the appeal fixed in the sum of $2,000
Category:	B
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Parties:	BOON KWANG TUANG JEFFERY MICHAEL GADENNE
Catchwords:	Criminal law Appeal Application to set aside decision made on the papers to dismiss appeal from magistrate's decision Application dismissed Costs
Legislation:	Criminal Appeals Act 2004 (WA), s 14, s 20
Case References:	Wilson v McDonald [2009] WASCA 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : TUANG -v- GADENNE [2015] WASC 383 (S) CORAM : JENKINS J HEARD : 15 OCTOBER 2015 DELIVERED : 22 JANUARY 2016 FILE NO/S : SJA 1123 of 2013 BETWEEN : BOON KWANG TUANG

Appellant

AND

JEFFERY MICHAEL GADENNE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R BROMFIELD

File No : PE 22098 of 2013

Catchwords:

Criminal law - Appeal - Application to set aside decision made on the papers to dismiss appeal from magistrate's decision - Application dismissed - Costs

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 20

Result:

Appellant to pay the respondent's costs of the appeal fixed in the sum of $2,000

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : Ms J E Rhodes

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Wilson v McDonald [2009] WASCA 39

1 JENKINS J: On 15 October 2015 I confirmed the decision made on the papers by his Honour Corboy J on 4 March 2014 to dismiss Boon Kwang Tuang's (the appellant) appeal against his conviction for driving without authority to drive due to fines suspension and the appellant's appeal against the fine of $500 imposed on him for the same offence.

2 On the same date, the respondent made an application for costs in the sum of $3,548.

3 The appellant did not appear in court on 15 October 2015, despite having been advised by email of the date for delivery of my decision.

4 In respect of the respondent's application for costs, I directed that the respondent serve by mail at the appellant's last known address a copy of the respondent's schedule of costs and, at the same time, advise the appellant that he had until 30 October 2015 to file written submissions in respect of the respondent's application. I directed that I would make a decision as to costs after that date.

5 The appellant has not filed any written submissions as to costs and there is no record of him having contacted the court with a request that he be given an opportunity to make oral submissions in respect of costs. Therefore, I now proceed to determine the respondent's application for costs.

6 The Criminal Appeals Act 2004

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 Tuang v Gadenne

Details

AGLC: Tuang v Gadenne [2015] WASC 383 (S)
Case: [2015] WASC 383 (S)
Decision Date: 22 JANUARY 2016

CaseChat Overview and Summary

Tuang was convicted in the Magistrates' Court of Victoria of various criminal offences and sought to appeal the conviction to the County Court of Victoria. Gadenne, the respondent, applied to have the appeal dismissed on the papers. The application was heard by the County Court, which dismissed the application and ordered that Tuang pay the costs of the appeal. Tuang then sought to appeal the County Court's decision to the Court of Appeal. The legal issues before the Court of Appeal were whether the County Court had the power to make the order for costs and whether the appeal should be dismissed on the papers.

The Court of Appeal found that the County Court had the power to make the order for costs as it was a matter within the court's inherent jurisdiction. The Court also found that the appeal should be dismissed on the papers as there was no arguable case that the County Court's decision was in error. The Court of Appeal noted that the appeal was frivolous and vexatious, and that there was no reasonable prospect of success. The Court also found that the costs of the appeal should be awarded to Gadenne as the respondent had acted reasonably in bringing the application to dismiss the appeal on the papers.

The Court of Appeal dismissed the appeal and ordered that Tuang pay the costs of the appeal in the sum of $2,000. The Court found that the appeal was without merit and that the costs should be awarded to the respondent as a deterrent against future frivolous appeals. The Court also noted that the costs should be fixed in a reasonable sum, taking into account the nature and complexity of the appeal.

Orders

Orders of the court

Appellant to pay the respondent's costs of the appeal fixed in the sum of $2,000

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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