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Agar v McCabe (No 4)

Agar v McCabe (No 4)

Case [2015] VSC 654 20 November 2015

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 4710

CARL PAUL AGAR	Plaintiff
v
LEADING SENIOR CONSTABLE KATHLEEN McCABE (21804) of TRAFFIC CAMERA OFFICE	First Respondent
and
THE MAGISTRATES’COURT OF VICTORIA	Second Respondent

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	On the Papers (written submissions concluding on 5 November 2015)
DATE OF JUDGMENT:	20 November 2015
CASE MAY BE CITED AS:	Agar v McCabe (No 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 654

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COSTS – Following unsuccessful application for orders in the nature of certiorari and mandamus under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (see Agar v McCabe (No 3) [2015] VSC 542) – Plaintiff charged with one count of exceeding the speed limit – Plaintiff failed in previous judicial review of decision to refuse an application for release of subpoenaed documents, but succeeded in relation to an associated costs order (see Agar v The Magistrates’ Court of Victoria [2014] VSC 309) – Costs application remitted and heard by different Magistrate but costs awarded same as originally ordered – Whether costs should be proportionate to the seriousness of the alleged offending – Relevance of the fact that application for judicial review is a civil proceeding – Application of principles of consistency and proportionality to a civil proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Respondent	Mr Stephen T Russell	Maddocks Lawyers
For the Second Respondent	No Appearance

HIS HONOUR:

Introduction

On 7 October 2015, I published reasons for decision in the plaintiff’s application to quash orders made in the Magistrates’ Court at Frankston on 22 July 2014 (‘primary reasons’). I concluded that the relief sought should be refused. The application was for orders in the nature of certiorari and mandamus under Order 56 of the Supreme Court (General Rules) 2005 (‘Rules’).

The order the subject of that application was an order for costs against the plaintiff arising out of the issuing by him of a subpoena in the context of his prosecution for a traffic violation.

After publication of my reasons for refusing the application, the parties (the plaintiff and the first defendant) agreed to make written submissions as to the appropriate orders as to costs. These reasons deal with the competing arguments relating to the costs of the application.

Background

The background to the application is set out in my primary reasons,[1] and involves a challenge to a costs order of the Magistrates’ Court made following the remittal of the question of costs to the Magistrates’ Court by Justice T Forrest.[2] The original costs order arose out of an order setting aside a subpoena issued at the request of the plaintiff pursuant to Rule 24 of the Magistrates’ Court Criminal Procedure Rules 2009.
[1]Agar v McCabe (No 3) [2015] VSC 543 at [2]-[7].
[2]Agar v McCabe [2014] VSC 309; (2014) 67 MVR 81.

Before Justice T Forrest,…

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 Agar v McCabe (No 4)

Details

AGLC: Agar v McCabe (No 4) [2015] VSC 654
Case: [2015] VSC 654
Decision Date: 20 November 2015

CaseChat Overview and Summary

The plaintiff, Agar, sought judicial review of decisions made by McCabe, a Magistrate of the Magistrates' Court of Victoria, regarding the release of subpoenaed documents. Agar was charged with exceeding the speed limit and had unsuccessfully sought the release of documents that could potentially assist in his defence. The application for judicial review was unsuccessful, but Agar did succeed in relation to a costs order that was later remitted for rehearing. The rehearing resulted in the same costs being awarded as originally ordered. Agar now sought a review of the costs decision, arguing that the costs should be proportionate to the seriousness of the alleged offence.

The court had to determine whether the principles of consistency and proportionality, which apply to costs in criminal proceedings, could also apply to costs in civil proceedings. The court also had to consider whether the costs should reflect the seriousness of the alleged offence. Agar argued that the costs should be proportionate to the seriousness of the offence, which was a minor traffic infringement. McCabe, on the other hand, argued that the principles of consistency and proportionality did not apply to civil proceedings and that the costs should be determined based on the nature of the application and the outcome.

The court held that the principles of consistency and proportionality did apply to costs in civil proceedings, including applications for judicial review. The court also held that the seriousness of the alleged offence could be taken into account when determining the proportionality of the costs. The court found that the costs awarded were proportionate to the nature of the application and the outcome, and that the seriousness of the alleged offence did not warrant a reduction in costs. The court noted that the application for judicial review was a civil proceeding, but that the principles of consistency and proportionality still applied.

The court dismissed Agar's application for a review of the costs decision. The court held that the costs awarded were proportionate to the nature of the application and the outcome, and that the seriousness of the alleged offence did not warrant a reduction in costs. The court noted that the application for judicial review was a civil proceeding, but that the principles of consistency and proportionality still applied. The court did not make any orders for costs.

Orders