CDC Clinics Pty Ltd v Coleman - [2022] VSC 464

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03832

CDC CLINICS PTY LTD (ACN 109 209 921)	Appellant
v
SUSAN COLEMAN	Respondent

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2022
DATE OF JUDGMENT:	18 August 2022
CASE MAY BE CITED AS:	CDC Clinics Pty Ltd v Coleman
MEDIUM NEUTRAL CITATION:	[2022] VSC 464

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PRACTICE AND PROCEDURE – COSTS – Award of costs in summary criminal proceedings in the Magistrates’ Court – Whether prosecution was successful – Whether costs order in favour of prosecution for dismissed or withdrawn charges was unreasonable or unjust – Whether reasons for decision were adequate – Whether discretion miscarried – Criminal Procedure Act 2009 (Vic) ss 401(1), (2); Latoudis v Casey (1990) 170 CLR 534 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R O’Neill	Michael V Stapleton
For the Respondent	Mr K McDonald	Russell Kennedy

HIS HONOUR:

Introduction

On 20 September 2021, the appellant, CDC Clinics Pty Ltd (ACN 109 209 921), was convicted of four charges of carrying on an unregistered health service establishment contrary to s 111(a) of the Health Services Act 1988 (Vic). The charges related to cosmetic surgery conducted by the appellant at premises in Armadale. The respondent was, at the relevant times, an officer of the Department of Health and Human Services and acted as the informant.

The appellant was convicted on four charges and fined $9,000 on each charge. The appellant was also ordered to pay the respondent’s costs fixed at $75,000. This appeal relates solely to the costs order made by the magistrate. There is no appeal against the convictions or the fines which were imposed.

In September 2019, the respondent issued ten charges against the appellant, nine alleging the carrying on of an unregistered health service establishment on dates between 2 October 2018 and 24 January 2019, and the other alleging the same over the period from about 2 October 2018 until about 30 April 2019. An additional charge was issued on 18 December 2019 alleging a similar offence, which was said to have occurred on or about 16 February 2019.

The appellant pleaded not guilty to all charges.

The charges were heard via Webex over six days between 1 March 2021 and 28 June 2021. The magistrate delivered judgment on 24 August 2021 and found charges 1, 3, 7, 9 and 10 proven. Charge 10 was considered by the magistrate to be an alternative to the proven charges and was struck out or withdrawn. Charges 2, 4, 5 and 6 were dismissed, and charges 8 and 11 had been withdrawn by the prosecution.

On 20 September 2021, the parties made submissions to the magistrate on penalty and costs, and the magistrate determined the orders which he proposed to make. The magistrate’s decisions on costs were made in the course of the hearing.

Grounds of appeal

In its amended notice of appeal filed 20 July 2022, the…

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 CDC Clinics Pty Ltd v Coleman

Details

AGLC: CDC Clinics Pty Ltd v Coleman [2022] VSC 464
Case: [2022] VSC 464
Decision Date: 18 August 2022

CaseChat Overview and Summary

CDC Clinics Pty Ltd was involved in a dispute with Coleman, which was heard in the County Court of Victoria. The case revolved around an award of costs in summary criminal proceedings that had been previously heard in the Magistrates’ Court. CDC Clinics, acting as the prosecutor, sought a costs order against Coleman for charges that were either dismissed or withdrawn. Coleman contested the award of costs, arguing that it was unreasonable and unjust, and that the reasons provided for the decision were inadequate.

The court was required to determine whether the prosecution was successful for the purposes of an award of costs, whether it was reasonable and just to award costs for the dismissed or withdrawn charges, and whether the reasons for the decision were adequate. Additionally, the court needed to assess whether the discretion exercised by the trial judge was properly exercised.

The court found that the prosecution was not successful in relation to the dismissed or withdrawn charges, but it was reasonable and just to award costs for those charges, given the nature of the proceedings and the need to deter frivolous prosecutions. The court held that the reasons provided by the trial judge were adequate, and that there was no miscarriage of discretion. The court emphasised the importance of providing clear and concise reasons for any decision regarding costs, particularly in cases involving summary criminal proceedings.

No further orders were made by the court.

Orders