JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2022 Written submissions filed 24 August, 12 September & 29 September 2022
DATE OF JUDGMENT:	26 October 2022
CASE MAY BE CITED AS:	AB v Paulet (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 646

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JUDICIAL REVIEW — Relief — Where, on judicial review, Court quashed findings of guilt recorded in County Court (on de novo appeal from Magistrates’ Court) against plaintiff on two charges of sexual assault and one of stalking — Where, because no evidence of “sexual” touching, Court satisfied no case on either charge of sexual assault — Where Court satisfied arguable case remaining on stalking — Where Court remitted stalking charge to County Court — Where Court heard further submissions on possible consequential orders, if any, to be made in respect of sexual assault charges — Where Director of Public Prosecutions (“DPP”) undertakes that, if sexual assault charges remitted to County Court, prosecution of those charges will not be pursued — Where undertaking includes that prosecution of remitted stalking charge will not be pursued either — Where, to give effect to undertaking, DPP would withdraw all three charges upon matter being called on for hearing in County Court — Where plaintiff does not oppose this course — Whether appropriate to remit sexual assault charges in those circumstances — Sexual assault charges remitted to County Court — Unnecessary to decide whether, if sexual assault charges not remitted, order for prohibition open instead — Unnecessary to decide whether giving of undertaking provides discretionary basis to refuse to issue order for prohibition.

COSTS — Where plaintiff unrepresented in this Court but seeks administrative costs of bringing application for judicial review — Where application not opposed by DPP — Order for administrative costs made.

COSTS — Where plaintiff legally represented in County Court and Magistrates’ Court — Where DPP does not oppose application for reasonable costs incurred by plaintiff in those courts — Whether application should be dealt with by this Court or by County Court upon remittal — Any such application to be determined by County Court upon remittal.

COSTS — Where amici curiae appointed by Court — Where amici curiae seek their costs in this Court — Where application opposed by DPP — Whether exceptional circumstances warranting departure from usual position that amici curiae bear own costs — Where amici curiae provided considerable assistance (including on matters and to an extent beyond initial request by Court) by research, preparation, written submissions and appearances — Where proper conduct of proceeding depended upon amici curiae’s participation — Exceptional combination of circumstances established — Order for costs made in favour of amici curiae on standard basis — Madafferi v The Queen [No 2] (2021) 63 VR 143.

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Appearances:

Counsel

Solicitors

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Paulet (No 2)

Details

AGLC: AB v Paulet (No 2) [2022] VSC 646
Case: [2022] VSC 646
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case of AB v Paulet (No 2) involved the plaintiff, AB, who sought judicial review of findings of guilt recorded against them in the County Court. The County Court had upheld findings of guilt from the Magistrates’ Court on two charges of sexual assault and one of stalking. AB appealed these findings in the Court of Appeal, which found that there was no evidence of sexual touching on the sexual assault charges, and thus no case was made out on those charges. The Court of Appeal was also satisfied that an arguable case remained on the stalking charge, and therefore remitted that charge to the County Court. The Court of Appeal further heard submissions on the possible consequential orders to be made in respect of the sexual assault charges, given the Director of Public Prosecutions (DPP) had undertaken that if those charges were remitted to the County Court, the prosecution of those charges would not be pursued, and the prosecution of the stalking charge would not be pursued either. The DPP would withdraw all three charges upon the matter being called on for hearing in the County Court.

The central legal issues before the Court of Appeal were whether it was appropriate to remit the sexual assault charges to the County Court in light of the DPP’s undertaking and whether the Court should order administrative costs to the plaintiff, given that they were unrepresented in the Court of Appeal but represented in the County Court and Magistrates’ Court. Additionally, the Court needed to determine whether the application for reasonable costs incurred by the plaintiff in the County Court and Magistrates’ Court should be dealt with by the Court of Appeal or the County Court upon remittal, and whether the amici curiae should be granted their costs given their significant contributions to the proceedings.

The Court of Appeal found it appropriate to remit the sexual assault charges to the County Court in light of the DPP's undertaking. The Court decided it was unnecessary to decide whether, if the sexual assault charges were not remitted, an order for prohibition would be open instead, or whether the giving of the undertaking provides a discretionary basis to refuse to issue an order for prohibition. Regarding costs, the Court made an order for administrative costs to the plaintiff as the application was not opposed by the DPP. The Court also decided that any application for reasonable costs incurred by the plaintiff in the County Court and Magistrates’ Court should be determined by the County Court upon remittal. Finally, the Court granted costs to the amici curiae on a standard basis, finding that their significant contributions to the proceedings, which went beyond the initial request by the Court, warranted the departure from the usual position that amici curiae bear their own costs.

Orders