Aouad v The Queen; El-Zayet v The Queen (No 2)

The Court of Appeal of Victoria heard appeals from two individuals, Aouad and El-Zayet, against the Crown, concerning matters related to costs. The appeals revolved around the question of whether the proceedings should be deemed civil in nature and, if so, whether there should be a departure from the usual rule that costs follow the event. The appeals were consolidated for the purposes of argument and determination.

The central legal issue before the court was whether the proceedings were of a civil nature, which would permit the exercise of the court's discretion to order costs in the manner it deems fit. The court needed to assess whether the proceedings were akin to civil proceedings, which would allow for a departure from the standard rule that costs follow the event. This required an analysis of the nature of the proceedings and the circumstances under which the appeals were brought.

The Court of Appeal held that the proceedings were not of a civil nature, and therefore, the usual rule that costs follow the event applied. The court examined the legislative framework and case law to determine that the appeals were fundamentally criminal in nature, despite the presence of civil law principles in the context of the appeals. Consequently, the Crown's application for costs was dismissed, and the appeals were determined in favour of the respondents. The court's reasoning was grounded in the distinction between civil and criminal proceedings, and the application of the appropriate cost rules in each context. The court's decision underscores the importance of correctly characterising the nature of legal proceedings to ensure the appropriate cost rules are applied.