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A Western Australian judge, who strongly objected to her move from the Children’s Court to the Magistrates’ Court, was ordered to pay the costs of her attempts to overturn the decision.
In a decision handed down on Wednesday, 9 April, the Federal Court’s Chief Justice Debra Mortimer ordered magistrate Catherine Crawford pay the costs of the state of Western Australia for the unsuccessful appeal of her constitutional challenge.
In mid-2022, Crawford was moved from the Children’s Court to the Magistrates’ Court under the direction of the former’s president, Judge Hylton Quail. Magistrates in Western Australia are dually appointed to both courts to allow them to work across jurisdictions.
Crawford launched a constitutional challenge, but this was dismissed by Justice Nye Perram in the Federal Court last March.
On appeal, Chief Justice Mortimer, along with Justices Angus Stewart and Michael O’Bryan, said two of Crawford’s three grounds were based on a “misunderstanding” and the third contained a “logical flaw” in her interpretation of how dually appointed magistrates can be directed.
In the cost decision, dealt with on the papers, Crawford sought an order the parties bear their own costs and sought a similar variation of the costs order made by Justice Perram in the substantive matter.
Crawford argued the proceedings was of a “public interest character as it concerned judicial independence and the constitutional limits of legislation affecting judicial officers”, and was not for her own gain.
The magistrate also submitted the proceedings “raised novel questions about relevant legislation which had not before been tested”.
The bench said a departure from the usual rule that costs follow the event “is not justified in this case”.
“It may be accepted that these proceedings raised, in part, potential questions of public importance regarding judicial independence. It may also be accepted that the proceeding was not brought for the appellant’s personal financial gain,” they said.
“Nevertheless, the proceeding principally concerned the interests of the appellant, and the relief sought by the appellant principally concerned the validity of decisions made under the Children’s Court of Western Australia Act 1998 (WA) that were directed to her personally.”
While Chief Justice Mortimer and Justices Stewart and O’Bryan accepted novel questions were raised, they pointed to the reasons the appeal had been dismissed and found potential questions of public importance “did not ultimately arise”.
“It follows from the foregoing that we also reject the appellant’s application to vary the costs order made by the primary judge.
“It should also be recorded that the appellant’s application to vary the costs order made by the primary judge is incompetent, and we would reject the application on that basis as well,” the bench concluded.
The costs decision: Crawford v State of Western Australia (No 2) [2025] FCAFC 48.
The appeal: Crawford v State of Western Australia [2025] FCAFC 18.
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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