ROCCISANO -v- GREEN [2026] WASC 135 (S)

[2026] WASC 135 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ROCCISANO -v- GREEN [2026] WASC 135 (S) CORAM : SOLOMON J HEARD : ON THE PAPERS DELIVERED : 28 APRIL 2026 PUBLISHED : 28 APRIL 2026 FILE NO/S : SJA 1051 of 2025 BETWEEN : MICHAEL JOHN ROCCISANO Appellant AND KYLIE RAE GREEN Respondent FILE NO/S : SJA 1052 of 2025 BETWEEN : LUKE MITCHELL SUMMERS Appellant AND KYLIE RAE GREEN Respondent -- 1 of 6 -- [2026] WASC 135 (S) Page 2 ON APPEAL FROM: For File No : SJA 1051 of 2025 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE YOO File Number : MC KA 2263/2025 For File No : SJA 1052 of 2025 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE YOO File Number : MC KA 2262/2025 Catchwords: Costs - Suitor's Fund Act - Object of Suitor's Fund - Respondent opposed application - Whether to grant certificate for Suitor's Fund Animal cruelty Legislation: Criminal Appeals Act 2004 (WA) Suitor's Fund Act 1964 (WA) Result: Certificate under Suitor's Fund Act declined Costs orders made Category: B -- 2 of 6 -- [2026] WASC 135 (S) Page 3 Representation: SJA 1051 of 2025 Counsel: Appellant : C McKenzie Respondent : I Weldon & R Harris Solicitors: Appellant : McKenzie & McKenzie Respondent : RSPCA WA SJA 1052 of 2025 Counsel: Appellant : I Gillon Respondent : I Weldon & R Harris Solicitors: Appellant : Millsteed Grasso Respondent : RSPCA WA Cases referred to in decision: Lou v IAG ltd t/a NRMA Insurance (2019) 101 NSWLR 606 Mir Bros Developments v Atlantic Constructions (1985) 1 NSWLR 491 Roccisano v Green [2026] WASC 135 Wilson v McDonald [2009] WASCA 39 (S) -- 3 of 6 -- [2026] WASC 135 (S) SOLOMON J Page 4 SOLOMON J: 1 On 15 April 2026, the court published reasons in relation to these matters.1 These reasons concern the costs of the appeals. 2 The appellants were successful and seek their costs of the appeals. The respondent concedes the costs of the appeals, but contends for an order that the respondent pay the appellants' costs limited to any amount that the respondent recovers from the Suitors' Fund (Fund) under the Suitors' Fund Act 1964 (WA) (Suitors' Fund Act). 3 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) relevantly provides that in deciding an appeal, the Supreme Court may make an order as to the costs of the appeal. 4 The appellate jurisdiction of the Supreme Court with respect to the decisions of magistrates in criminal proceedings has a supervisory character of public importance in the clarification and elucidation of the law. For that reason, the general discretion conferred in relation to costs does not bear direct analogy with civil proceedings, where the general rule is that costs follow the event. Therefore, 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 the Criminal Appeals 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.2 5 Here, the respondent conceded, correctly in my view, that the costs should follow the event. The question that arises is whether those costs should be limited to the amount recovered by the respondent from the Fund. 6 Section 10 of the Suitors' Fund Act provides that where an appeal against the decision of a court in any proceedings to the Supreme Court on a question of law succeeds, the Supreme Court may, upon application made to the court by any party to the proceedings, grant to the respondent to the appeal, an indemnity certificate in respect of that appeal. Section 11 provides that where a respondent has been granted a 1 Roccisano v Green [2026] WASC 135. 2 Wilson v McDonald [2009] WASCA 39 (S) [8] - [10]. -- 4 of 6 -- [2026] WASC 135 (S) SOLOMON J Page 5 certificate, the certificate entitles the respondent to be paid from the Fund. 7 The order sought by the respondent requires a prior application for a certificate under s 10. Although no application in those terms was made, I will proceed on the basis that the respondent in substance applies for a certificate and for costs orders to reflect the entitlement to the Fund pursuant to a certificate. 8 The purpose of the Suitors' Fund Act is the relief of a party who incurs or becomes liable for costs not through his or her own decision or conduct, but because of some error of law of the court appealed from. The object is to mitigate the hardship to litigants that would otherwise flow.3 The decision to grant a certificate is discretionary. 9 In this matter, the respondent actively opposed the appeals. The respondent filed written submissions in opposition and appeared by counsel to contest the appeal. The respondent was fully entitled to do so and no suggestion of criticism can be levelled against the respondent for adopting that course. At the same time, I do not consider that it could fairly be said that the respondent's costs were not incurred as result of its own decision or conduct. The situation may have been different if the respondent had not actively participated in the proceeding.4 10 In the circumstances, I decline to grant a certificate entitling the respondent to costs under the Fund pursuant to the Suitors' Fund Act. Orders will be made in the terms sought by the appellants. 3 Mir Bros Developments v Atlantic Constructions (1985) 1 NSWLR 491, 494. 4 See, for example, Lou v IAG ltd t/a NRMA Insurance (2019) 101 NSWLR 606 [87] - [88]. -- 5 of 6 -- [2026] WASC 135 (S) SOLOMON J Page 6 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. AS Associate to the Hon Justice Solomon 28 APRIL 2026 -- 6 of 6 --