Brown v Glen Eira - [2012] VSC 198

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS

S CI 2011 00045

WAYNE JAMES BROWN	Appellant
v
GLEN EIRA CITY COUNCIL	Respondent

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2011
DATE OF JUDGMENT:	17 May 2012
CASE MAY BE CITED AS:	Brown v Glen Eira
MEDIUM NEUTRAL CITATION:	[2012] VSC 198

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APPEAL under s 272 of the Criminal Procedure Act 2009 – Costs of successful defendant in summary proceedings – principles governing the assessment of costs

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.T. Lapirow	VicRoads
For the Respondent	Mr R O’Neill	Norton Rose Australia

HER HONOUR:

Background

Mr Wayne Brown is an officer of VicRoads, the public authority charged with, among other things, enforcing compliance with certain provisions of the Road Safety Act 1986 (“Act”). He was the informant in a matter brought before the Magistrates’ Court at Dandenong, whereby VicRoads laid 88 charges against the Glen Eira City Council (“Council”). Under s 171(2) of the Act:

(2)A person is guilty of an offence if-
(a)a vehicle is in breach of a mass, dimension or load restraint limit or requirement; and
(b)the person is the consignor of any goods that are in or on the vehicle.

The Council had entered into contracts with Thiess Services Pty Ltd (“Thiess”) to collect household waste for transport to a depot in Clayton. Thiess in turn engaged a number of owner drivers to carry out the collections operation. In July 2008, VicRoads conducted an audit at the weighbridge located at the depot, and discovered that a number of garbage trucks had exceeded the mass limits established under r 158 of the Road Safety (Vehicles) Regulations 2009. VicRoads prosecuted Thiess and the owner drivers, each of whom pleaded guilty. The Council was charged by summons issued on 2 March 2009.

At the commencement of the hearing of the proceeding by Magistrate Cure on 8 February 2010 (“primary proceeding”), counsel for VicRoads informed the Court that the following facts were admitted by agreement:

(a)the date of the offence;
(b)the place of the offence;
(c)the Council was a consignor within s 171 of the Act;
(d)the identity of the vehicles in question;
(e)that the vehicles were on a highway; and
(f)the weight alleged against each vehicle.

In defending the charges, the Council relied upon s 179(1) of the Act, which provides as follows:

(1)If a provision of this Part states that a person has the benefit of the reasonable steps defence for an offence it is a defence to the charge of the offence if the person charged establishes that
(a)the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the commission of the offence; and
(b)either
(i)the person had taken all reasonable steps to prevent that conduct from occurring; or
(ii)there were no steps that the person could reasonably be expected to have taken to prevent the conduct from occurring.

Section…

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 Brown v Glen Eira

Details

AGLC: Brown v Glen Eira [2012] VSC 198
Case: [2012] VSC 198
Decision Date: 17 May 2012

CaseChat Overview and Summary

In the matter of Brown v Glen Eira, the appellant sought to challenge the decision of the Magistrates' Court of Victoria in relation to the costs awarded to the respondent, Glen Eira, following a successful defence in summary proceedings. The respondent, Glen Eira, had commenced proceedings against the appellant, Brown, under a by-law for the non-payment of a fine. The appellant argued that the decision of the magistrate to award costs to Glen Eira was incorrect, asserting that the assessment of costs was not in accordance with the relevant principles applicable to summary proceedings.

The central legal issue before the court was whether the magistrate had erred in awarding costs to Glen Eira, and if so, what principles should be applied in assessing costs in such proceedings. The court was required to determine the appropriate principles for assessing costs in summary proceedings and whether the magistrate had applied those principles correctly in the present case. This included examining whether the costs awarded were reasonable, necessary, and proportionate to the proceedings, as well as whether the magistrate had considered all relevant factors in making the cost determination.

The court held that the magistrate had erred in the assessment of costs by not adhering to the established principles governing the awarding of costs in summary proceedings. The court outlined that costs should be assessed based on the nature of the proceedings, the conduct of the parties, and the outcome. It was emphasised that the assessment must be proportionate and not excessive, taking into account the complexity and the duration of the proceedings. The court found that the magistrate had failed to adequately consider these principles and had awarded costs that were not justified. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates' Court for a re-assessment of costs in accordance with the principles elucidated by the court.

The final orders of the court were that the appeal be allowed, the decision of the Magistrates' Court regarding the costs awarded to Glen Eira be quashed, and the matter be remitted for reconsideration of the costs. The court did not order any costs to be paid by the respondent in relation to the appeal.

Orders