Van Lieshout v City of Fremantle [No 2]

[2013] WASC 176 (S)

VAN LIESHOUT -v- CITY OF FREMANTLE [No 2] [2013] WASC 176 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 176 (S)
Case No:	SJA:1091/2012	Heard:	ON THE PAPERS
Coram:	HALL J	Delivered:	23/05/13
No of pages:	4	Judgment Part:	1 of 1
Result:	The appellant pay the respondent's costs, fixed in the sum of $4,000
Category:	B
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Parties:	TERESA VAN LIESHOUT CITY OF FREMANTLE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal from Magistrates Court Appeal dismissed Costs
Legislation:	Nil
Case References:	Nikolaou v Papsavas Phillips & Co [1989] HCA 11; (1989) 166 CLR 394 Smolarek v Roper [2009] WASCA 124 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : VAN LIESHOUT -v- CITY OF FREMANTLE [No 2] [2013] WASC 176 (S) CORAM : HALL J HEARD : ON THE PAPERS DELIVERED : 23 MAY 2013 FILE NO/S : SJA 1091 of 2012 BETWEEN : TERESA VAN LIESHOUT

Appellant

AND

CITY OF FREMANTLE
Respondent

ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervener

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE E K LANGDON

File No : FR 4885 of 2012

Catchwords:

Criminal law - Appeal from Magistrates Court - Appeal dismissed - Costs

(Page 2)

Legislation:

Nil

Result:

The appellant pay the respondent's costs, fixed in the sum of $4,000

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : No appearance
Intervener : On the papers

Solicitors:

Appellant : In person
Respondent : Kott Gunning
Intervener : Solicitor General for Western Australia

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

Nikolaou v Papsavas Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Smolarek v Roper [2009] WASCA 124 (S)


(Page 3)

1 HALL J: On 10 May 2013 I delivered judgment in this matter and dismissed the appeal. The respondent applied for an order that the appellant pay the respondent's costs to be taxed. As the appellant was not in attendance I reserved the question of costs and ordered that the appellant file any written submissions on that question within three days. A decision on costs would then be made on the papers.

2 The appellant was sent a copy of the judgment and informed of the orders on 10 May 2013. Over the following five hours she sent 20 emails to my Associate. It is unnecessary to detail the contents of the emails other than to say that they contained the appellant's views of the judgment and a tirade of personal abuse expressed in the foulest possible language. The only references to the question of costs were a number of statements, expressed in vehement terms, that the appellant did not intend to pay any costs awarded against her.

3 In deciding an appeal the court has power to make an order as to the costs of the appeal: s 14(1)(h) Criminal Appeals Act 2004 (WA). The discretion to make a costs order is broad but generally such an order will follow the event. In civil appeals an unsuccessful party is obliged to satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papsavas Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 407. That principle ought also apply to criminal appeals under pt 2 of the Criminal Appeals Act.

4 In this case, the appellant has advanced no reasons which could justify the court departing from the general rule. Furthermore, there is no good reason why the respondent, which has been successful on this appeal, should be denied its costs. The respondent is a local authority and it would be unjust for the ratepayers of the City of Fremantle to bear the expenses incurred in responding to this appeal. Ordinarily it is just that the party who turns out to have unjustifiably brought the other party before the court should be required to pay the other party's costs: Smolarek v Roper [2009] WASCA 124 (S).

5 There can be cases where the costs incurred may appear to be disproportionate to the significance of the issues at stake in the appeal. However, this is a case where it is the appellant that has pursued the appeal, argued her position at length and sought to raise many issues (most of which proved to be entirely without merit). In those circumstances, the respondent should be able to recover costs it has reasonably incurred.

(Page 4)

6 I have concerns about making an order that the costs be taxed. The reason for that is that given the appellant's attitude as expressed in her emails, a taxation is likely to become a forum for pointless disputation. Accordingly, I intend to make an order for costs in a fixed sum. I have had regard to the applicable scale and to the fact that the respondent's solicitors kept their written and oral submissions to the minimum required to carry out their duty to their client and the court. There will be an order that the appellant pay the respondent's costs fixed in the sum of $4,000.