Applicants A1 & A2 v Brouwer & Anor (No. 2) - [2007] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 4383 of 2007

APPLICANTS A1 & A2
	v
G E BROUWER (IN HIS CAPACITY AS DIRECTOR OF THE OFFICE OF POLICE INTEGRITY) & ANOR (NO 2)

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JUDGES:	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17, 18 April 2007 and 28 June 2007
DATE OF JUDGMENT:	29 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 269

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PRACTICE AND PROCEDURE – Appeal – Costs – Chief Commissioner of Police as respondent ordered to pay appellants’ costs – Application for indemnity certificate – Whether Chief Commissioner “person representing the Crown” – Certificate refused – Appeal Costs Act 1998 (Vic), s 4, s 38.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr S G O’Bryan SC with Mr S R McCredie	Lennon Settle Mazzeo
For the Second Respondent	Mr P J Hanks QC with Ms R Orr	Victorian Government Solicitor’s Office

MAXWELL, P,
NEAVE JA,
REDLICH JA:

On 28 June 2007, the Court allowed the appeal in this matter.[1] The Court set aside the order of the judge at first instance and ordered that the decision of the first respondent, the Director of the Office of Police Integrity, also be set aside. The second respondent, the Chief Commissioner of Police, was ordered to pay the applicants’ costs of the appeal and of the proceeding at first instance. Counsel for the Chief Commissioner then applied for an indemnity certificate under s 4 of the Appeal Costs Act 1998.
[1]Applicants A1 & A2 v Brouwer (in his capacity as Director of the Office of Police Integrity) & Anor [2007] VSCA 139.

The other conditions of eligibility for a certificate being satisfied, the court raised with counsel – and subsequently reserved for consideration – the question whether the grant of a certificate to the Chief Commissioner was precluded by s 38 of the Appeal Costs Act, which provides:

A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.

Counsel for the Chief Commissioner contended that the Chief Commissioner was neither “the Crown” nor a “person representing the Crown” for this purpose.

In our view, s 38 does operate to preclude the grant of an indemnity certificate to the Chief Commissioner. For the reasons which follow, the Chief Commissioner is, if not “the Crown”, then certainly a “person representing the Crown” for the purposes of s 38.

The expression “the Crown” for this purpose refers to

the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business.[2]

The Crown thus includes the departments of government that are headed by a Minister. It “is the control of the Minister that provides the link to the Crown”.[3]

[2]Sue v Hill [1999] 199 CLR 462, 499 [87] (Gleeson CJ, Gummow and Hayne JJ).

[3]Hogg, Liability of the Crown (2^nd ed, 1999) p 10.

The Victoria Police is an agency…

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.

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Details

Case: [2007] VSCA 269
Decision Date: 29 November 2007

CaseChat Overview and Summary

In the matter of Applicants A1 & A2 v Brouwer & Anor (No. 2), the applicants sought relief in relation to costs incurred in a prior appeal. They argued that the Chief Commissioner of Police, as the respondent, was obligated to cover their costs under the Costs Act 1998 (Vic). The applicants sought an indemnity certificate to enable the enforcement of a judgment against the Chief Commissioner. The crux of the dispute was whether the Chief Commissioner, in his capacity as the respondent, qualified as a "person representing the Crown" as defined by the Costs Act. The refusal of the indemnity certificate by the court became the pivotal issue in the current appeal.

The primary legal issue before the court was to determine the correct interpretation of the term "person representing the Crown" under the Costs Act. The applicants contended that the Chief Commissioner, as a public officer, should be considered a representative of the Crown for the purposes of the Act. Conversely, the respondents argued that the Chief Commissioner did not fall within the definition of a "person representing the Crown." The court had to adjudicate on the proper scope of this term and its application to the Chief Commissioner's role.

In reaching its decision, the court meticulously analysed the statutory language and relevant precedents. It concluded that the Chief Commissioner, while a public officer, did not meet the specific criteria outlined in the Costs Act to be classified as a "person representing the Crown." The court emphasised that the term was narrowly construed and did not extend to every public official. Consequently, the Chief Commissioner was not deemed a "person representing the Crown," and the application for an indemnity certificate was denied. The applicants' appeal against this decision was subsequently dismissed.

As a result of the appeal's dismissal, the applicants were not granted the indemnity certificate they sought, and the Chief Commissioner was not ordered to pay their costs. The court's decision upheld the interpretation of the "person representing the Crown" under the Costs Act 1998 (Vic), affirming the lower court's refusal of the indemnity certificate.

Orders