Winter v Fleet

[2002] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WINTER -v- FLEET [2002] WASCA 128

CORAM:   WALLWORK J

HEARD:   5 APRIL 2002

DELIVERED          :   5 APRIL 2002

PUBLISHED           :  17 MAY 2002

FILE NO/S:   SJA 1047 of 2001

BETWEEN:   ALEXANDER JOSEPH WINTER

Appellant

AND

CRAIG WALTER FLEETON
Respondent

Catchwords:

Costs - Successful appeal from Court of Petty Sessions - Retrial ordered - How costs in Court of Petty Sessions should be fixed

Legislation:

Official Prosecutions (Defendants' Costs) Act 1973, s 5

Result:

Court of Petty Sessions to decide question of costs in that Court

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr C Lomma

Solicitors:

Appellant:     In person

Respondent:     State Crown Solicitor

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

Mastrangelo v Reynolds [2001] WASCA 347

Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980123; 5 March 1998

Case(s) also cited:

Cachia v Hanes & Anor (1994) 179 CLR 403

Haynes v Hughes [2001] WASCA 169

Klahn v Talbot (1995) 83 A Crim R 535

O'Dea v Fletcher, unreported; SCt of WA (Murray J); Library No 920666; 20 November 1992

Williams v Beverley, unreported; SCt of WA (Parker J); Library No 980474; 24 August 1998

Winter v Fleeton [2002] WASCA 73

1. WALLWORK J: When the reasons in this matter were delivered on 5 April 2002 I expressed the tentative view that I should fix the costs of the earlier proceedings in the Court of Petty Session. However, as there had been no submissions made concerning the costs in the summary court the question of those costs was reserved to enable the parties to make written submissions on that question within 28 days - judgment [11].

2. Both parties have since made written submissions and I take them into account in coming to this decision.

3. In Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980123; 5 March 1998  at 2 Parker J discussed the question I have to decide.  His Honour said:

   "The further question arises whether I may make an order in respect of the appellant's costs in the proceedings to date in the Court of Petty Sessions. Section 5(4) of the Official Prosecutions (Defendants' Costs) Act 1973 enables this Court to make an order as to the amount of costs in the summary court but only where 'a defendant is successful by reason of the Appeal Court reversing a decision of the summary court…'. The difficulty I perceive in the way of my making an order in respect of the costs of the hearing below arises primarily by the need for the decision below to have been reversed. It appears to me that s 5(4) of that Act is directed to situations such as where a conviction is quashed and an acquittal is ordered on appeal, or of course, vice versa.  In such situations the order made on appeal results in a reversal of the outcome of the proceedings below.

   In the present case, however, while it is true that the decision below has been set aside, no acquittal has been ordered.  Instead, the complaint is remitted to the Court of Petty Sessions so that the learned Magistrate can complete the hearing according to law.  There has not yet been a valid determination of the complaint.

   In these circumstances it does not appear open to me to make any order with respect to the costs of the proceedings, so far, before the Court of Petty Sessions.  It seems to me to be the intention of the Official Prosecutions (Defendants' Costs) Act that in the present circumstances, on the completion of the hearing of the complaint which is now remitted to the learned Magistrate, the Magistrate will have to make a decision with respect to the total costs incurred in respect of the hearing of that complaint, that is both the proceedings before there was the appeal of this Court and the resumed proceedings to complete the hearing of the complaint, pursuant to the order now made by this Court."

4. Following Parker J's decision the Full Court decided the matter of Mastrangelo v Reynolds [2001] WASCA 347. In that case, Malcolm CJ with whom the other two Judges agreed, said at [39]:

   "A further explanation for the differences in wording between subsection (3) and subsection (4) of s 5 of the Act is that the former applies where a defendant's appeal succeeds, but the charges are remitted to the Court of Petty Sessions for a retrial, whereas subsection (4) applies where the defendant's appeal results in the charge being dismissed or quashed and no retrial is ordered. This construction of the provisions was adopted by Parker J in Serrell v Bryant (Commissioner of State Revenue) (supra)."

5. Having quoted from Parker J's reasons in Serrell the Chief Justice said at [40]:

   "In my opinion the decisions in O'Dea v Fletcher and Serrell v Bryant are inconsistent with Small v Walker.  The two later decisions are to be preferred, as being consistent with the definition of a 'successful defendant' being limited to the circumstances defined in s 4(2) of the Act."

6. In the present case the complaint has been remitted for hearing before another Magistrate.  In my view the situation comes within the words of Parker J in Serrell v Bryant which have been referred to earlier in these reasons.  In the words of his Honour:  "There has not yet been a valid determination of the complaint."

7. In similar circumstances, Parker J came to the conclusion that it did not appear to him to be open to him to make any order with respect to the costs of the proceedings so far before the Court of Petty Sessions.  His Honour said that it seemed to him to be the intention of the Act that in such circumstances, on the completion of the hearing of the complaint:

   "…which is now remitted to the learned Magistrate, the Magistrate will have to make a decision with respect to the total costs incurred in respect of the hearing of that complaint; ie both the proceedings before there was the appeal to this Court and the resumed proceedings to complete the hearing of the complaint pursuant to the order now made by this Court."

8. Parker J's reasoning in Serrell has been approved by the Full Court of Western Australia in Mastrangelo v Reynolds (supra).  Therefore I am obliged to follow his Honour's decision.

9. In those circumstances the question of the total costs incurred in connection with the hearing of the relevant complaint should be determined by the learned Magistrate at the conclusion of any resumed hearing.  If there is no resumed hearing, if necessary, I will refer the matter to a Registrar of this Court for inquiry and report and will fix the costs myself in due course.