RGM -v- CHOPPING [2026] WASC 116 (S)

[2026] WASC 116 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : RGM -v- CHOPPING [2026] WASC 116 (S) CORAM : LUNDBERG J HEARD : ON THE PAPERS DELIVERED : 6 MAY 2026 FILE NO/S : SJA 1072 of 2024 BETWEEN : RGM Appellant AND LANIE-MARIE CHOPPING Respondent ON APPEAL FROM: For File No : SJA 1072 of 2024 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE N LEMMON File Number : FR XXXX/2023 - FR XXXX/2023 Catchwords: Costs - Criminal law - Single judge appeal from a decision of a Magistrate under div 2 pt 2 of the Criminal Appeal Act 2004 (WA) - Appellant wholly unsuccessful on appeal - Respondent claims costs assessed pursuant to item 26 of the Legal Profession (Supreme and District Courts) (Contentious -- 1 of 13 -- [2026] WASC 116 (S) Page 2 Business) Determination 2024 - Where public interest considerations asserted by the appellant as relevant to the costs discretion - Whether appellant should pay the respondent's costs of the appeal - Whether quantum of costs should be reduced - Whether quantum of costs should be fixed - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA), s 14(1)(h) Local Government Act 1995 (WA), s 5.21, s 5.65, s 5.67 Result: Costs of the appeal to be paid by the appellant, fixed in the sum of $9,900. Category: B Representation: Counsel: Appellant : In Person Respondent : J A Kirke Solicitors: Appellant : In Person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Hunter v City of Joondalup [2018] WASCA 166 (S) Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Porter v Kelly [2024] WASC 282 (S) RGM v Chopping [2026] WASC 116 Sharpe v Vinning [2020] WASCA 79 (S) Thomas v Kent [2014] WASC 23 (S) Wilson v McDonald [2009] WASCA 39 (S) -- 2 of 13 -- [2026] WASC 116 (S) Page 3 Table of Contents Introduction ........................................................................................................................... 4 Legislative framework ........................................................................................................... 4 Appellant's position ............................................................................................................... 6 Respondent's position ............................................................................................................ 7 Disposition as to costs ........................................................................................................... 8 Conclusion and orders ......................................................................................................... 10 ATTACHMENT A Respondent's draft bill of costs ........................................................... 11 ATTACHMENT B Scale Item 26 ....................................................................................... 12 -- 3 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 4 LUNDBERG J: Introduction 1 On 13 April 2026, the court published its reasons for dismissing the appeal against the convictions recorded against the appellant in the Magistrates Court (Primary Reasons)1, although leave to appeal on two grounds was granted (grounds 4 and 6). 2 At the judgment delivery on 13 April 2026, the respondent sought an order that the appellant pay its costs, fixed in the sum of $13,238.2 The appellant opposed that order, and sought an order that there be no costs in the appeal.3 The appellant was unrepresented during the course of the appeal proceedings although he indicated he had taken some legal advice.4 3 In the circumstances, I considered it appropriate to make directions to permit the filing of written submissions as to costs (see Folio 36). I also allowed the parties an opportunity to apply to the court for further directions by 4.00pm yesterday (5 May 2026), failing which the issue of costs would be determined on the papers. 4 The appellant did not file any submissions. The respondent filed short submissions on 1 May 2026, together with a draft bill of costs (see Folio 38). The liberty to apply was not exercised. Accordingly, I have proceeded to determine the issue of costs on the papers. These are my reasons for ordering that the appellant pay the respondent's costs of the appeal, fixed in the sum of $9,900, which represents an approximate 25% reduction in the amount claimed by the respondent. Legislative framework 5 In the context of appeals to a single judge brought under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), against a decision of a court of summary jurisdiction, the court is empowered by s 14(1)(h) of the CAA to make an order as to the costs of the appeal and as to the costs of the proceedings in the court of summary jurisdiction. 6 It may be accepted that the provisions of the CAA with respect to costs are not to be construed as importing a general rule to the effect 1 RGM v Chopping [2026] WASC 116. 2 ts 301 (13 April 2026). 3 ts 303 (13 April 2026). 4 ts 303 (13 April 2026). -- 4 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 5 that costs should ordinarily follow the event. The Court of Appeal in Wilson v McDonald expressed the position as follows:5 [10] Accordingly, with respect to those who may have expressed a contrary view, the provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, outside the specific topics covered by s 20 of that Act, 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. 7 In adopting this view, Martin CJ noted the analogy between civil and criminal appeals was far from perfect, and observed that: [7] …By the express provisions contained in s 20 of the Criminal Appeals Act, the legislature has recognised that particular provisions with respect to costs are required because of the public component of appeals in criminal proceedings, including the particular role of public officials in relation to those appeals. Although some appeals to this court from the decisions of magistrates may arise in respect of offences that have a regulatory character, and which may be more analogous to civil proceedings in this court, many appeals, including this one, relate to the enforcement of the criminal laws of the state. There is a strong element of public interest in the enforcement of those laws, which is an element that is often lacking in civil proceedings in this court. [8] The appellate jurisdiction of this court with respect to the decisions of magistrates in criminal proceedings also has a supervisory character. Amongst the interests served by the exercise of that jurisdiction is the clarification and elucidation of the law to be applied, and the practices and procedures to be adopted by magistrates in the exercise of their criminal jurisdiction. The public importance of that jurisdiction cannot be overstated, as it is the magistrates of this state who hear and determine the vast majority of criminal charges brought. 8 His Honour concluded that considerations of the kind just mentioned had led a majority of the High Court to conclude that, 'where a general discretion was conferred in relation to the costs of summary criminal proceedings before magistrates, there was no direct analogy 5 Wilson v McDonald [2009] WASCA 39 (S) [10] (Martin CJ, Beech AJA agreeing). -- 5 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 6 with civil proceedings, with the result that there was no general rule to the effect that costs ordinarily follow the event'.6 9 Martin CJ made reference in the above passages to offences of a 'regulatory character'. As Allanson J later clarified, this reference ought not be taken to suggest that the 'ordinary rule' applies in respect of appeal on regulatory offences.7 I respectfully agree. The supervisory character of the appellate jurisdiction from magistrates, and the importance of clarification and elucidation of the law, are factors present in both 'regulatory' and 'criminal' matters.8 10 The foregoing position has been applied by the Court of Appeal in the context of s 19(2)(b) of the CAA, which is in the same terms as s 14(1)(h), but which concerns appeals to the Court of Appeal under div 3 pt 2 of the CAA.9 11 I should therefore approach the costs question on this appeal, which was brought against convictions for offences under the Local Government Act 1995 (WA) (LGA), recorded following a trial in the Magistrates Court, on the basis there is no ordinary rule. Rather, I should have regard to all relevant considerations, such as those identified by Musikanth J in Porter v Kelly,10 namely: (a) whether the unsuccessful party commenced the proceedings; (b) the result of the proceedings; (c) whether the unsuccessful party's submissions were accepted in part by the court; and (d) whether the appeal involved a point of law of public importance, or a point of law that required reconciliation of conflicting authority. Appellant's position 12 Although the appellant did not file any written submissions, he made brief oral submissions on 13 April 2026. In substance, the appellant submitted that there was a 'significant public interest' 6 Wilson v McDonald [9], referring to Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 547 - 561 (Dawson J, Brennan J concurring), and 568 - 569 (McHugh J). 7 Thomas v Kent [2014] WASC 23 (S) [6] - [7] (Allanson J). 8 Thomas v Kent [6]. 9 Sharpe v Vinning [2020] WASCA 79 (S) [5] (Buss P, Murphy and Vaughan JJA). 10 Porter v Kelly [2024] WASC 282 (S) (Musikanth J). -- 6 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 7 associated with the issues in the appeal. He noted that the provisions had 'never been tested or ventilated in a court' and observed there were around 1,400 elected councillors in Western Australia at any point in time. The appellant submitted that many of those councillors would be 'eagerly looking to [see] how this matter eventuates'.11 13 The appellant described the case against him as 'very, very difficult to comprehend' and 'even contradictory'.12 Respondent's position 14 Within its written submissions, the respondent maintained its position that the appellant should pay the costs of the appeal fixed in the sum of $13,280. 15 The respondent based its submission on the complexity of the appeal, the absence of any novel or unsettled questions of statutory interpretation, and the lack of success on the appellant's part across the many grounds of appeal.13 In the circumstances, the respondent submitted that any public interest considerations should be given little weight.14 16 In the alternative, the respondent submitted that the court might award a proportion of the costs to the respondent, rather than refuse the costs application in its entirety.15 17 The respondent's draft bill of costs claims various amounts by reference to scale item 26 in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024, and at rates which are less than the hourly rates for senior practitioners and junior practitioners in cl 13 of that scale. The scale provides that the senior practitioner hourly rate is $572 and the junior practitioner hourly rate is $418. The rates claimed by the respondent in this regard are $400 and $350 respectively, both of which are below the junior practitioner rate in the scale.16 11 ts 303 (13 April 2026). 12 ts 303 (13 April 2026). 13 RS [12] - [15]. 14 RS [11] and [16]. 15 RS [17]. 16 Counsel during the course of the appeal and at the appeal hearing was Ms Perera, who I infer was a senior practitioner within the meaning of the scale. Counsel at the judgment delivery was Mr Kirke, who I infer is a junior practitioner within the meaning of the scale. However, as the hourly amounts claimed are less than the junior practitioner scale rate, the seniority of the practitioners is not a significant point in any event. -- 7 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 8 18 I have attached to these reasons as Attachment A the amounts claimed by the respondent. The terms of scale item 26 are set in Attachment B. Disposition as to costs 19 The costs of this appeal should be borne by the appellant, in my respectful view. I have reached that view for the following reasons. 20 First, the appellant instituted the appeal. 21 Second, the appellant was not successful on any grounds of appeal (Primary Reasons [7] and [331]). 22 Third, the appellant advanced 11 grounds of appeal which had a direct impact on the complexity of the appeal proceedings (Primary Reasons [142]), the necessity for two hearing days on appeal, and the volume of work required by the respondent's solicitors to properly respond to the appeal. The appeal proceedings involved four directions hearings in the lead up to the appeal hearing. The extensive nature of the issues raised by the appellant on appeal required the preparation of detailed submissions by the respondent's solicitors (and supplementary submissions),17 and would have contributed to the extent of preparation required in advance of the appeal hearing itself. It should be remembered that the trial at first instance occupied some five hearing days, with a reserved decision from the Magistrate which produced detailed reasons (Primary Reasons [4] and [67] – [135]), and so the task of responding to the appeal, it may be inferred, required counsel on appeal to review the transcript of the hearing at first instance and the reasons of the Magistrate. 23 Fourth, I accept the submission of the respondent that no novel or unsettled questions of statutory interpretation arose in the course of the appeal. Although the appeal required construction of provisions of the LGA, the appeal was capable of being addressed through the application of orthodox principles of statutory interpretation to a settled legislative scheme (Primary Reasons [156] – [160]). 24 Fifth, as part of the appeal proceedings, the appellant brought an application to adduce further evidence, which the court dismissed 17 The respondent's primary submissions were 25 pages in length, addressing four legislative regimes and six authorities. The respondent's supplementary submissions, which were filed at the request of the court, were seven pages in length, and addressed 10 authorities. The respondent has not sought costs associated with the preparation of the supplementary submissions. -- 8 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 9 (Primary Reasons [146] - [153]). This unsuccessful application also contributed to the work required by the respondent's solicitors in order to properly deal with the appeal. 25 Sixth, no evidence or argument has been advanced by the appellant to suggest that he would be unable to meet a costs order. In any event, as the respondent correctly submits, the inability of a successful party to meet a costs order is not sufficient reason to deny a successful party their costs.18 26 The foregoing considerations support the order as to costs sought by the respondent, consequent upon the dismissal of the appeal. 27 As to the quantum of those costs, I accept that the amount claimed by the respondent in the draft bill of costs is reasonable and appropriate, having regard to the items of work which have been claimed by the respondent and having regard to my own assessment of the work undertaken by the respondent's solicitors and my personal experience as to the time likely to have been taken by solicitors to attend to that work. If anything, the amounts claimed are modest given the work involved, and I note the indication by the respondent in its submissions that the actual costs incurred are much higher than the amounts sought.19 28 There remains a question in my mind, however, whether the amount sought by the respondent ought be reduced, by reference to appellant's submission that the issues raised by his appeal, as to the offences established by s 5.21(5), s 5.65(1) and s 5.67 of the LGA, had not been the subject of previous appellate consideration. There is some merit in this submission. 29 The issues raised by the appeal required a detailed consideration of the provisions of the LGA and, whilst the arguments advanced by the appellant were not accepted, I consider there was, to some extent, a degree of public interest served by the process of analysing those provisions and expressing opinions as to their proper construction. This is evident from the Primary Reasons at [161] to [190], [201] to [208], and [236] to [249]. The proper operation of the provisions of the LGA which were examined in the Primary Reasons is likely to be of legitimate interest to the various local governments in this State established under the LGA, the elected councils which govern each of 18 RS [18]. See, in this regard, Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [26] - [33] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ) and Hunter v City of Joondalup [2018] WASCA 166 (S) [9] (Buss P, Mazza and Beech JJA). 19 RS [13]. -- 9 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 10 those local governments, and the State government department which oversees these bodies. 30 In these circumstances, I consider it is just to reduce the quantum claimed by the respondent by approximately 25%, reducing the quantum from $13,238 to $9,900. 31 Finally, I should observe that I consider the court is in a position to fix the quantum of the costs on this appeal, rather than directing that the costs be assessed by a Registrar in the usual way. I reach that view because I have the benefit of the detailed draft bill of costs prepared by the respondent's solicitors, because the amounts claimed by the respondent are in accordance with the scale and within the scale limits, and because I have had the carriage of the appeal proceedings since the matter was allocated to me in September 2025 and in this respect I am able to form impressions as to the work undertaken by the solicitors as part of the appeal process. Conclusion and orders 32 I will therefore order that the appellant pay the respondent's costs of the appeal fixed in the sum of $9,900. -- 10 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 11 ATTACHMENT A Respondent's draft bill of costs No. Description Scale Item Date Amount 1 Notice of Respondent's Intention 26(i) 19/11/24 $88 2 Attend directions hearing (in excess of 1.5 hours but say 1 hour SP @ $400 per hour) 26(c) 26/3/25 $400 3 Attend directions hearing (in excess of 1.5 hours but say 1 hour SP @ $400 per hour) 26(c) 7/5/25 $400 4 Attend directions hearing (in excess of 4 hours but say 2 hour SP @ $400 per hour) 26(c) 2/7/25 $800 5 Attend directions hearing (in excess of 6 hours but say 3 hour SP @ $400 per hour) 26(c) 12/8/25 $1,200 6 Preparation of appeal, including examining brief, advice to client on prospects, taking instructions, research law and drafting Respondents submissions (in excess of 75 hours SP but say 10 hours @ $400 per hour) 26(d) 2/12/24 to 11/11/25 $4,000 7 Counsel fee on first day of hearing (including preparation) (in excess of 5 hrs preparation and 5 hrs hearing but say 10 hours SP @ $400/hour) 26(e) 12/11/25 $4,000 8 Counsel fee on second day of hearing (in excess of 5 hrs hearing but say 5 hours SP @ $400/hour) 26(f) 13/11/25 $2,000 9 Attending on reserved decision, including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders (1 hour JP @ $350/hr) 26(h) 13/4/25 $350 Total $13,238 -- 11 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 12 ATTACHMENT B Scale Item 26 Item Time Fee earner $ 26. Single Judge Appeals in the Supreme Court and Appeals in the District Court (including leave to appeal) (a) Notice of Appeal or Notice of Contention pursuant to Rule 15 of the District Court Rules 2005 1 hour SP 572 (b) Notice of Appeal or Notice Contention in other appeals 5 hours SP 2,860 (c) Interlocutory hearings – as required, including preparation per hour C (d) Preparation of appeal for hearing, including preparation of appeal documents and submissions 10 hours SP 5,280 (e) Counsel fee on hearing, including preparation 2 days preparation/ 1 day hearing C SC 15,840 23,430 (f) Counsel fee for second and each successive day of hearing C SC 5,280 7,810 (g) Attendance at appeal by instructing legal practitioner per hour SP (h) Attending on reserved decision, including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders per hour SP (i) Other notices and certificates referred to or required by the Rules or procedures of the Court, including the practice directions 88 -- 12 of 13 -- [2026] WASC 116 (S) LUNDBERG J Page 13 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 6 MAY 2026 -- 13 of 13 --