Department of Health and Human Services v County Court (No 2)

[2018] VSC 354

IN THE SUPREME COURT OF VICTORIA

 Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 05295

SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES	Plaintiff
v
COUNTY COURT OF VICTORIA	First Defendant
AB (a pseudonym)	Second Defendant
CD (a pseudonym)	Third Defendant
EF (a pseudonym)	Fourth Defendant
GH (a pseudonym)	Fifth Defendant

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S CI 2017 05295

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 June 2018
CASE MAY BE CITED AS:	Department of Health and Human Services v County Court (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 354

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JUDICIAL REVIEW — Orders of County Court on appeal from Children’s Court — County Court orders quashed — Entitlement of defendants to indemnity certificates — Indemnity certificates granted — Appeal Costs Act 1998 s 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Department of Health and Human Services
For the Second Defendant	Gorman & Hannan
For the Third Defendant	Victoria Legal Aid
For the Fourth Defendant	Dowling McGregor Pty Ltd
For the Fifth Defendant	Howard G Draper

HIS HONOUR:

1. On 15 June 2018, I made orders quashing Family Preservations Orders made by a Judge of the County Court and remitting the appeals to the Judge for determination in accordance with law and my reasons. I made no order as to costs.

1. The plaintiff succeeded principally on a legal argument about the interpretation of the term ‘sexual abuse’ in s 162(1)(d) of the Children, Youth and Families Act 2005.

1. The second, third, fourth and fifth defendants seek indemnity certificates under the Appeal Costs Act 1998 (‘AC Act’).

1. Judicial review proceedings are appeals for the purposes of the AC Act.[1] This case was a civil proceeding.

   [1]Ozkan v Leitch & Ors (Ruling No 2) [2012] VSC 17.

1. No order was made for costs. But the defendants may still incur costs. Some of them have obtained legal aid, but the AC Act does not prohibit a grant of an indemnity certificate to legally aided parties.

1. As the third defendant noted, in The Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd and Ors (No 3),[2] the Court granted an indemnity certificate to the third defendant despite the successful plaintiff not seeking an order for costs against it. The Court did so to indemnify that defendant for its own costs of the proceeding.

   [2][2002] VSC 314.

1. The second, third, fourth and fifth defendants are respondents to an appeal against a decision of a court in a civil proceeding in the Trial Division of the Supreme Court and thus satisfy s 4(1)(a) of the AC Act. Because of the grounds on which the plaintiff succeeded, I consider it appropriate in the exercise of the discretion conferred by that provision to decide that the defendants who have sought indemnity certificates are granted them.