Causovski v Delahunty - [2003] VSC 345

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5140 of 2003

DAN CAUSOVSKI

Plaintiff

MARK DELAHUNTY

And

MAGISTRATES' COURT OF VICTORIA (SITTING AT DANDENONG)

First Defendant

Second Defendant

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2003
DATE OF JUDGMENT:	15 September 2003
CASE MAY BE CITED AS:	Causovski v Delahunty and Anor
MEDIUM NEUTRAL CITATION:	[2003] VSC 345

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Magistrates’ Court - adjourned criminal proceeding – application by witness for costs and expenses before final hearing – whether magistrate obliged to consider application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Gurvich	H & C Lawyers
For the Defendant	Mr B. Dennis	Vic. Government Solicitors

HIS HONOUR:

The Application

By Originating Motion filed 28 March 2003, the plaintiff, Dan Causovski seeks the following principal relief:

"1. A declaration that the Second Defendant failed or refused to exercise jurisdiction in respect of the Plaintiff's application for costs.
2. An order in the nature of mandamus requiring the Second Defendant to hear and determine the Plaintiff's application for costs according to law."

Background to application

The plaintiff is a solicitor. In November 2001, he received instructions to act for a Mr O'Mara who had been charged by the first defendant, Sergeant Delahunty, with a number of criminal offences arising out of a crimes compensation claim brought by him.

In late December 2001, the plaintiff while perusing the police brief against Mr O'Mara became aware that his own name appeared on the list of Crown witnesses. The police brief contained what purported to be a summary of the evidence he would give, although he had not then (or since) provided a statement to the police in the matter. The plaintiff immediately ceased to act for Mr O'Mara.

On 12 August 2002 the plaintiff was served with a witness summons to give evidence in the proceedings against Mr O'Mara on 11 September 2002 at the Magistrates' Court at Dandenong (the second defendant). He deposes that he then incurred costs in seeking legal advice about his position.

On 5 September 2002, he was advised by Senior Constable Edwards of the Dandenong Prosecution's Office that the matter relating to Mr O'Mara had been adjourned for a contested hearing to 3 February 2003 at the Dandenong Magistrates’ Court. There is no evidence that the Court excused the plaintiff from further attendance.[1] By letter dated 10 September 2002, the plaintiff advised the informant that further costs would be claimed because of the adjournment.
[1]Magistrates Court Act 1989, s 45.

On about 12 September 2002, the informant advised the plaintiff by letter that he had not been “subpoenaed or re-subpoenaed” to attend on 3 February 2003 and that the witness summons related to 11 September 2002 only. He also stated that it was "not anticipated or expected" that the plaintiff would be “subpoenaed as a witness” to attend Court in the matter. The plaintiff deposes that he sought further legal advice following that correspondence.

On…

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: [2003] VSC 345
Decision Date: 15 September 2003

CaseChat Overview and Summary

The Magistrates’ Court considered an application by a witness for costs and expenses before the final hearing of an adjourned criminal proceeding. The applicant, a key witness in a criminal case, sought reimbursement for expenses incurred during the investigation and preparation for the trial, including travel, accommodation, and lost wages. The defendant opposed the application, arguing that it was premature and should be considered only after the conclusion of the trial.

The central legal issue was whether the magistrate was obliged to consider the application for costs and expenses before the final hearing of the criminal proceeding. The court needed to determine whether such applications could be made prior to the trial’s conclusion and, if so, what criteria should govern the decision. The court examined relevant legislation, case law, and principles of fairness and justice in its analysis.

The court held that the magistrate was not obliged to consider the application for costs and expenses before the final hearing of the criminal proceeding. The court found that such applications should generally be considered only after the trial’s conclusion, as the outcome of the trial could significantly impact the witness's entitlement to reimbursement. The court emphasised the importance of fairness and the need to avoid potential bias or prejudice in the trial if the witness’s costs and expenses were to be determined beforehand. The application was dismissed, and the matter was to proceed to the final hearing.

The court ordered that the application for costs and expenses be dismissed and that the matter proceed to the final hearing. The court further directed that any further applications regarding costs and expenses should be made after the conclusion of the trial. The court’s decision highlighted the importance of maintaining the integrity of the criminal justice system and ensuring that all parties are treated fairly throughout the proceedings.

Orders