AA (a pseudonym) v Cooper (Ruling)

[2015] VCC 233

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted  Suitable for Publication

Case No. CR-13-01479

“AA” (a pseudonym)  Applicant

v

SIMON MITCHELL COOPER  Respondent

---

JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATEOF HEARING:	5 March 2015
DATEOFRULING:	12 March 2015
CASE MAY BE CITEDAS:	AA (a pseudonym) v Cooper (Ruling)
MEDIUMNEUTRAL CITATION:	[2015] VCC 233

RULING

---

Subject:  CRIMINAL LAW – COSTS

Catchwords: Judgment in application for compensation pursuant to s85B of the Sentencing Act 1991 – application by applicant for costs – whether costs should be granted in favour of applicant

Legislation Cited:     Sentencing Act 1991, s85B; Victims of Crime Assistance Act 1996 Cases Cited: Kaplan v Leigh-Archer (2007) 15 VR 405; R v Scarborough [2000] VSC

255; Gregory v Gregory [2000] VSC 190; Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 367; Stevens v Baxter [2009] VSC 257; V1 & Ors v Xydias [2009] VSC 616; R v Xydias

[2009] VSC 272

Judgment: The respondent pay the applicant’s costs and disbursements of the application.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Seccull	Waller Legal
For theRespondent	Mr P Galbally	Galbally & O’Bryan

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HIS HONOUR:

1On 5 March 2015, I handed down judgment in an application by the applicant for compensation pursuant to s85B of the Sentencing Act 1991 (“the Act”). At the conclusion, Mr Seccull, on behalf of the applicant, sought an order that the respondent pay the applicant’s costs of the application.

2For the reasons which follow, in my view, it is appropriate to order that the respondent pay the applicant’s costs and disbursements.

3Section 85K of the Act provides:

“Costs of proceeding

Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.”

4In brief compass, Mr Seccull submitted that the Court should exercise its discretion in his client’s favour because:

·The manner in which the application was conducted, that is involving comprehensive cross-examination of witnesses as to issues of quantum, causation and remoteness, was not the “low-cost option” envisaged by Parliament when the Act was introduced;

·The assistance of counsel was necessary.

5Mr Galbally, for the respondent, said there was no basis for exercising the Court’s discretion to order costs, as there were no special circumstances, nor anything particularly unusual about the application itself, nor the manner in which it was conducted.

6Division 2 of Part 4 of the Act was inserted in 2000 as:

“… a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial … .”1

7Section 85K makes it clear that each party should bear their own costs unless the Court otherwise determines.

8In R v Scarborough,2 Teague J heard an application for compensation by nine applicants, including the driver of a motor vehicle with whom the respondent had an altercation and several police officers involved in the arrest of the respondent following that altercation. The driver and a police officer were shot by the defendant. The hearing of the application for compensation occurred over a number of days and his Honour ordered that the respondent to the application pay the applicant’s costs. There was no particular examination as to the circumstances under which costs should be awarded.

9In Gregory v Gregory,3 Cummins J heard an application for compensation over several days in circumstances where the respondent murdered his step- daughter and caused serious brain injury to his wife. The applicant tendered a variety of medical reports.  His honour said:

“… because of the substantial ambit of this matter and its nature I order that the respondent pay the costs of each of the applicants.”4

10While both Scarborough and Gregory were determined before the introduction of s85K of the Act, they serve as examples of the Court’s exercise of discretion as to costs in applications of this type.

11In Director of Public Prosecutions v Esso Australia Pty Ltd,5 Cummins J again awarded costs in an award of compensation after Esso pleaded guilty to eleven counts of breaches of the Occupational Health and Safety Act following a gas explosion at the Longford Refinery. The application was heard over one day and medical reports by a psychologist and psychiatrist were

1. Per Buchanan JA in Kaplan v Leigh-Archer (2007) 15 VR 405 at paragraph [25]

2. [2000] VSC 255

3. [2000] VSC 190

4. At paragraph [32]

5. [2003] VSC 367

tendered  into  evidence.     His  Honour  ordered  the  respondent  pay  costs. Again, there is no description as to the basis upon which costs were awarded.

12In Kaplan v Lee-Archer,6 the Court of Appeal considered, as part of an appeal against an award for compensation by the trial judge, an appeal against an order for costs. Both the applicant and respondent were represented by counsel in the original application. The trial judge had commented:

“I suppose the consequence of not ordering costs is that the [respondent] would have to pay his lawyer those costs, it’s a substantial reduction in the award, is it not?”7

13Buchanan JA said:

“In my view his Honour was entitled to have regard to the fact that the respondent had incurred the cost of engaging the services of a barrister. It is not suggested that this course was unnecessary. The manner in which the dispute was conducted was not the normal course contemplated by the Act. In my opinion the sentencing judge’s discretion as to costs did not miscarry.”8

14In Stevens v Baxter,9 Forrest J considered an application for costs subsequent to a s85B application where the respondent had brutally murdered his wife and the applicants were the two children of the deceased. The application was heard over the course of a day and reports of a psychologist tendered on behalf of the applicants. His Honour said:

“Counsel for the children sought that I make an order in favour of the children in relation to costs of the application. Section 85K of the Sentencing Act mandates that each party ‘must bear their own costs of the proceeding’ unless the court otherwise determines. Although counsel advised me that in applications in the County Court there have, on occasions, been orders for costs against the offender, the clear tenor of the section is that the costs should lie where they fall, absent unusual or special circumstances. Such circumstances, it seems to me, cannot be the events surrounding the crime as one would imagine that in many, if not all, cases in which applications under s 85B are made the circumstances are such that a court would (absent legislative direction) be readily disposed to order costs in favour of the victim or victims.

In my view, there should be no order as to the costs of the application.”10

1. Supra

2. At paragraph [44]

3. At paragraph [45]

4. [2009] VSC 257
   10       At paragraphs [37] and [38]

15Finally, in V1 & Ors v Xydias,11 Warren CJ considered an application for costs following a compensation application under the Act. The respondent did not oppose nor defend the proceeding. Each applicant filed an affidavit in support, together with medical reports. No witnesses were called to be cross- examined. The application was concluded in one day. Her Honour referred to the Second Reading Speech which referred to cases:

“… when costs should be awarded against a party, such as in the case of a convicted offender unreasonably contesting the victim’s application.”12

16Her Honour noted that the reference in Hansard contemplated costs being awarded in circumstances where the conduct of the respondent was unreasonable, but such an example provided only guidance and was not an exhaustive stipulation. Her Honour referred to the exercise of discretion in Gregory v Gregory13 and the references in Kaplan v Lee-Archer.14  She noted:

“Counsel for the applicants submitted that the Court should exercise its discretion to make an order for costs because of the severity of the impact of the offences upon the victims, and the complexity of the matters that require legal representation. I accept this submission. The number of victims and offences, the long period of time between much of the offending and the criminal proceedings, and the need for expert psychological and psychiatric evidence all contributed to the complexity of the applications before me. Further, these applications arose from circumstances that were unprecedented in this State.15 It was essential for the purpose of adequate and proper preparation and presentation of the claim  of each applicant  that  legal assistance was obtained.  In addition, the effect on the victims of the offending and the nature of their injuries resulted in a situation where the assistance of  counsel was necessary.”16

17From these various authorities, I conclude the following:

(a)The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious

11 [2009] VSC 616

1. Victoria, Parliamentary Debates, Legislative Assembly, 25 March 1999, 194 (the Hon J LM Wade, Attorney-General)

2. Supra

3. Supra

4. R v Xydias [2009] VSC 272 at paragraph [115]

5. At paragraph [127]

means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category;

(b)Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded;

(c)Circumstances which may justify the award of costs include the following:

(i)the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;

(ii)the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;

(iii)the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;

(iv)the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.

18In this application, each party was represented by experienced junior counsel.

There was extensive medical evidence placed before the Court, and a number of the medical witnesses were cross-examined. The issues in the application, and pressed in cross-examination, included the nature and extent of the psychological injury suffered by the applicant, whether the criminal offending was the cause in whole or part of the injury, remoteness of damage and alleged complicity in the conduct by the applicant.

19In my view, these issues raised distinct complexities and required the retention of experienced counsel and extensive medical and like material. In my view, the application could not have been properly prosecuted unless it

was conducted in the manner described.

20Exercising my discretion, in my view, it is appropriate to order the respondent to pay the applicant’s costs and disbursements.

21I shall make the appropriate orders.

- - -