ROWE -v- MILLER [2018] WASC 405 (21 December 2018)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal Appeals Act 2004 (WA)

Road Traffic (Authorisation to Drive) Act 2008 (WA)

Road Traffic Act 1974 (WA)

Appellant to pay the respondent's costs of the appeal fixed in the sum of $1,500

Rowe v Miller [2018] WASC 405

Wilson v McDonald [2009] WASCA 39 (S)

1. On 20 December 2018 I delivered extempore reasons for dismissing the appellant's appeal against his conviction for an offence of driving a motor vehicle while not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) by reason of his authority to drive having been suspended contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA).[30] The appellant did not appear at the hearing of the appeal.
2. After I had delivered my decision dismissing the appeal the respondent made an application for an order that the appellant pay his costs of the appeal fixed in the amount of $2,597. Given that the appellant was not present and had therefore not had the opportunity to respond to the respondent's application for costs I made orders in the following terms:
   1. The respondent is to file and serve by no later than 17 January 2019 a schedule of costs and an outline of submissions in respect of his application for costs of the appeal;
   2. The appellant is to file and serve by no later than 31 January 2019 any outline of submissions in response to the respondent's application for the costs of the appeal; and
   3. Following the date on which the appellant is to file any outline of submissions in response to the respondent's application for the costs of the appeal, the application for costs is to be determined by the court on the papers.
3. The respondent has filed his schedule of costs and submissions in support of his application for costs in accordance with my orders. As the schedule of costs reveals, the scale that has been applied by the respondent is the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA). However, the rates claimed for the junior practitioner and the senior practitioner are lower than the scale rate.
4. By the schedule of costs the respondent seeks costs in the amount of $2,597. The schedule particularises a sum of $495 for the preparation of the respondent's notice of intention, a sum of $1,642 for taking instructions, providing advice and preparing the filed outline of submissions for the appeal, a sum of $230 for preparing for the appeal hearing, and a sum of $320 for appearing at the hearing of the appeal.
5. The appellant has not filed any outline of submissions in accordance with the second of my above referred to orders. Nor has he made any contact with the court.
6. Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) (the Act) provides that in deciding an appeal the Supreme Court may, among other things, make an order as to the costs of the appeal.
7. The general power to award costs conferred by s 14 is constrained by s 20 of the Act. However, s 20 does not apply to an application by a respondent police officer, as in this case, for costs incurred in responding to an appeal by an offender.
8. In Wilson v McDonald[31] the Court of Appeal said that the general effect of the Act is to confer upon the court a general and unconstrained discretion with respect to the award of costs in relation to an appeal from the magistrate unless the case comes within the specific provisions of s 20.[32] The court said that this general discretion should not be construed as importing a general rule to the effect that costs should ordinarily follow the event.[33] Rather, except in circumstances covered by s 20 the Act should be construed as conferring a general and unconstrained discretion with respect to costs to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.[34] Against the background of these statements of principle I make the following observations.
9. In my view the amount claimed by the respondent is not unreasonable.
10. The appeal was without merit. The point of law the subject of the appeal was not one of public importance given that it concerned the application of well-established principles. Having said this, I can understand why the appellant, a litigant in person, may feel some grievance about having been convicted of an offence of driving while under suspension after having been told incorrectly by the person who delivered the disqualification notice to him that the period of disqualification did not come into effect for a month (assuming the appellant was provided with this advice). I can also understand that in these circumstances the appellant was unlikely to appreciate the legal distinction between a mistake of law and an honest and reasonable but mistaken belief in the existence of a state of things within the meaning of s 24 of the Criminal Code (WA).
11. As my reasons for decision on the appeal reveal, the appellant was derelict in complying with the orders of the court in relation to the appeal and failed to respond to the court's requests for advice as to whether he was proposing to appear at the hearing of the appeal until the night before the listed hearing. Even then, the appellant's communication with the court was limited to a one line email in which he requested, without explanation, an adjournment of the hearing to the New Year.
12. In making the above comments I recognise the difficulties faced by litigants in person. However, once an individual decides to make use of the processes of the court for appealing against a decision of a magistrate convicting them of a criminal offence they take on the responsibility of complying with the statutory requirements for the appeal and the orders of the court made in relation to the appeal to the best of their ability. The appellant made no effort to do this.
13. I am conscious of the public interest in ensuring that the right of appeal conferred by the Act on a convicted offender should not be rendered nugatory by the risk of having a large costs order made against him or her if the appeal is, as it was in this case, unsuccessful.
14. The appellant has not put any information before the court to demonstrate that he has a limited ability to pay a substantial costs order. Nonetheless, given that he represented himself on the appeal and the content of the affidavit that he did file in support of his application for leave to appeal, I will assume, favourably to him, that he does have a limited ability to pay a substantial costs order.
15. Taking all of the above matters into account it is my view that it is appropriate to order that the appellant pay some but not all of the costs sought by the respondent. I therefore exercise my discretion to order that the appellant pay the respondent's costs of the appeal fixed in the sum of $1,500.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] ts 2. Although the magistrate did not, following the appellant's guilty plea, expressly state that a judgment of conviction was entered against the appellant following his plea, the judgment of conviction is recorded on the prosecution notice containing the charge.

[10] The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).

[11] CAA, s 10(3) and s 10(4).

[12] Eastough v The State of Western Australia [No 2] [2010] WACSA 88 [12] ‑ [14].

[13] CAA, s 9(2).

[14] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[15] CAA, s 9(3).

[16] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [19].

[17] The statement of the applicable principles in Lawson v The State of Western Australia was recently reaffirmed in De Bono v Southam [2018] WASCA 218 [18]. See also Topuz v The State of Western Australia [2017] WASCA 186

[18] Ottobrino v Espinoza (1995) 14 WAR 373, 384; Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401 [57] ‑ [62]; Kadmos v Nesina [2013] WASC 253 [15] ‑ [17].

[19] If a person is disqualified from holding or obtaining a driver's licence pursuant to s 49 of the RTADA, the person's licence and hence his or her authority to drive is suspended within the meaning of s 49(3)(c): RTADA, s 21; Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 53C

[20] If a person is disqualified from holding or obtaining a driver's licence pursuant to s 52 of the RTADA, the person's licence and hence his or her authority to drive is suspended within the meaning of s 49(3)(c): RTADA, s 21; Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 53C.

[21] That this was the position is also borne out by the period of disqualification that the magistrate imposed which was double the minimum period of disqualification that could have been imposed if the appellant had not made an election under s 51(1): RTADA, s 49(2)(a) and s 52(4).

[22] Wroblewski v Starling [1987] WAR 233; Ottobrino v Espinoza (1995) 14 WAR 373, 385; Minear v Rudrum [2001] WASCA 10; (2001) 33 MVR 119 [11].

[23] Code, s 22.

[24] Wroblewski v Starling (235-236); Ottobrino v Espinoza; McCaskie v Bagby (Unreported, WASC, No 197 of 1974, 18 April 1975); Brooks v Roberts (1997) 25 MVR 83, 85 ‑ 86; Illich v Young [2000] WASCA 383 [14] ‑ [31]; Denton v Bodycoat [2000] WASCA 424 [39]; Minear v Rudrum [11] ‑ [19]. In the respondent's written outline of submissions it is pointed out that all these cited cases were decided before Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. It is suggested by the respondent that in light of Ostrowski v Palmer it is now unclear whether a defence under s 24 is available in the situation where the suspension of the person's driver's licence occurs as a result of the exercise of a discretion by an administrative authority or a court. For reasons that are apparent from my below expressed views as to the nature of the appellant's mistake, this is not a question that I need to resolve in order to decide the appeal.

[25] RTADA, s 52(1).

[26] RTADA, s 52(4).

[27] RTADA, s 52(5).

[28] Ostrowski v Palmer [48] ‑ [49].

[29] Minear v Rudrum [18]; Ostrowski v Palmer [59].

[30] Rowe v Miller [2018] WASC 405.

[31] Wilson v McDonald [2009] WASCA 39 (S).