Dutton Garage Wholesale Pty Ltd v Sandro Mark Terzini
[2017] VCC 1991
•6 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01326
| DUTTON GARAGE WHOLESALE PTY LTD | Applicant |
| v | |
| SANDRO MARK TERZINI | Defendant |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August and 14 September 2017 | |
DATE OF JUDGMENT: | 6 February 2018 | |
CASE MAY BE CITED AS: | Dutton Garage Wholesale Pty Ltd v Sandro Mark Terzini | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1991 | |
REASONS FOR JUDGMENT
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Subject: Application for compensation pursuant to s86 of the Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Bracken | Maitland Lawyers |
| For the Defendant | Mr S Tovey |
HER HONOUR:
Introduction
1 On 12 September 2016 Sandro Terzini (Terzini) was found guilty after trial of one charge of theft and three charges of obtaining financial advantage by deception (the offences). On 23 December 2016 Terzini was sentenced to a term of imprisonment of 20 months to be followed by a Community Correction Order for a period of 12 months. Dutton Garage Wholesale Pty Ltd (Dutton Garage) makes an application for compensation pursuant to s86 of the Sentencing Act 1991 (Sentencing Act) for the loss it suffered as a result of the offences.
2 At the time of the offending Terzini was the director of a business called Terzini Motore Aust Pty Ltd (Terzini Motore). The business was responsible for the restoration and repair of vintage cars and it operated from Clairmont Avenue, Bentleigh. Terzini had been involved in the motor car industry for many years.
3 Michael Kudelka (Kudelka) was the owner and director of a company known as The Pacrim Esp Pty Ltd (Pacrim). For many years, Kudelka had acquired and owned vintage vehicles. In December 2007 Kudelka moved overseas for work and stored some of his vintage vehicles at Terzini’s workshop at Bay Street, Brighton. One of the cars that he stored was a silver 1960 Ferrari 250PF Coupe Chassis No 1677 GT (the Ferrari).
4 Kudelka had purchased the Ferrari (which was unregistered) on behalf of Pacrim from Jeff Dutton on 8 September 1997. Mr Dutton was a licensed motor car trader specialising in trading vintage and exotic cars through his business, Dutton Garage, in Richmond.
5 On 21 July 1998, Kudelka registered the Ferrari with the registration number KUD 222.
6 On 1 July 2013 Terzini sold the Ferrari to George Nakas (Nakas) who bought the car on behalf of Dutton Garage for $465,000 which was recorded on an invoice from Terzini Motore to Melbourne Prestige. Dutton Garage trades as Melbourne Prestige.[1] Melbourne Prestige paid Terzini $10,000 commission on the sale. At that time the owner of the Ferrari was Pacrim. Terzini did not have the authority of Pacrim to sell the Ferrari.
[1] Affidavit by George Nakas made 15 May 2017 (Nakas affidavit).
7 At the time that Terzini sold the Ferrari to Nakas, Kudelka was overseas and was completely unaware of the transaction. Nakas bought the Ferrari in the belief that Terzini was representing Kudelka and that Terzini had the authority to sell it.
8 The charges of obtaining financial advantage by deception were in relation to three payments made by Dutton Garage as a result of the false representations by Terzini that he was authorised by Kudelka to sell the Ferrari.
9 On 4 July 2013 Nakas registered the Ferrari with registration number HGT 250. A short time later, the Ferrari was placed on display in the showroom of Melbourne Prestige and offered for sale. On 24 July 2013 the Ferrari was purchased by Gregory LaManna (LaManna) for $550,000. On 30 May 2014, Dutton Garage purchased the Ferrari from LaManna for $875,000. It was then placed in the showroom once again.
10 On 17 September 2016 Pacrim and Dutton Garage settled Supreme Court proceedings between them. The terms of the settlement included a requirement that Dutton Garage return the Ferrari to Pacrim on 17 September 2016. On 17 September 2016 the applicant returned the Ferrari to Pacrim.
11 On 19 December 2016 Dutton Garage made a written application for a compensation order pursuant to s86 of the Sentencing Act for the loss it suffered as a result of the offences for which Terzini was found guilty in the County Court on 12 September 2016.
12 On 27 February 2017 Terzini was convicted of three charges which included theft of a motor vehicle and obtaining property by deception which related to a Ferrari engine worth $50,000. The Moorabbin Magistrates’ Court imposed an aggregate of 12 months’ imprisonment. The Order was made totally concurrent with the sentence that was imposed by this Court on 23 December 2016 and there was a compensation order for $50,000.
13 On 3 October 2017 Terzini pleaded guilty to the theft of a 1970 Ferrari Daytona Coupe which was owned by Simon Hardwidge. He was sentenced to a term of imprisonment of 12 months on 18 December 2017. The Court directed that eight months of that sentence be served cumulatively upon the sentence imposed on 23 December 2016.
The moneys held by Asset Confiscation Operations (ACO)
14 On 4 August 2015 His Honour Judge Carmody made a restraining order pursuant to s18 of the Confiscation Act 1997 (Confiscation Act) in relation to the real property situated at 115 Harrisons Road Dromana (the Dromana property) and owned by Sandro Terzini and Josephine Terzini. The order nominates its purposes as including satisfying any order that may be made for restitution or compensation under the Sentencing Act.
15 The restraining order was varied on 14 September 2015 to allow for the sale of the Dromana property. The property was sold for $2 million on 10 August 2015 with settlement on 5 October 2015. An exclusion application filed by Josephine Terzini was found in her favour on 13 November 2015 for 50% of the balance held in trust by the Department of Justice (Asset Confiscation Operations, Infringement Management and Enforcement Services). Her interest was found to be $415,934.52, which was transferred to her solicitors around 30 November 2015. The result of this transfer left $416,230.52 ($415,934.52 plus $1,776.64 interest accrued) remaining in trust representing Terzini’s 50% interest in the property.[2]
[2] Affidavit made by Edward John Maitland on 19 May 2017.
16 On 11 November 2016 $417,007.64 restrained by the Restraining Order and Further Orders was forfeited to the Minister pursuant to s.35(1) of the Confiscation Act (forfeited sum).
17 Section 30 of the Confiscation Act provides that “if a restraining order is made for a purpose referred to in section 15(1)(e) …and an order for…compensation is made under the Sentencing Act 1991 in relation to the offence in reliance on which the restraining order is made… the State must ensure that the order for…compensation…is satisfied, to the value of the restrained property, before any other purpose for which the restraining order is made.”
18 An email dated 19 May 2017 indicates that ACO currently holds $428,000 on trust (inclusive of accrued interest) and that “whilst these funds have been automatically forfeited, they remain invested on trust in order to satisfy any compensation orders that fit within the scope of section 31 of the Confiscation Act 1997.”[3]In an affidavit made by the solicitor for the applicant, Edward John Maitland (Maitland) on 19 May 2017, Maitland stated that he believes that the forfeited sum remains available to satisfy any order for compensation that this Honourable Court may make pursuant to s86 of the Sentencing Act.
[3] Exhibit EJM 4 to the affidavit made by Edward John Maitland on 19 May 2017.
Relevant Provisions of the Sentencing Act
19 Section 86 of the Sentencing Act is in the following terms:
(1) If a court finds a person guilty of, or convicts a person of, an offence it may order the offender to pay to a person who has suffered loss or destruction of, or damage to, property as a result of the offence any compensation (not exceeding the value of the property lost, destroyed or damaged) that the court thinks fit.
(1A) An order under subsection (1) may be made-
(a)on the application of a person suffering loss or destruction of, or damage to, property as a result of the offence; or …
(2) If a court decides to make an order under subsection (1) it may in determining the amount and method of payment of the compensation take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
(3) A court is not prevented from making an order under subsection (1) only because it has been unable to find out the financial circumstances of the offender.
….
(7) In determining whether or not an order under subsection (1) should be made and, if so, the amount payable under the order -
(a)a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and …
(8)A court must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.
(9)In subsection (8) the available documents means-
(a)any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or
(b)the depositions in the committal proceeding; or
….
(d)any victim impact statement made to the court for the purpose of assisting it in determining sentence; or
(e)any other documentary evidence acceptable to the court of –
(i)loss or destruction of, or damage to, property suffered by a person as a result of the offence; or
(ii)the amount of the loss suffered or the expense incurred as a result of that destruction or damage.
(9D)Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this section must bear their own costs of the proceeding unless the court otherwise determines.
(10)Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.
(11)References in this section to property include references to a motor vehicle.
The application by Dutton Garage
20 Dutton Garage claims that it paid LaManna $875,000 for the Ferrari because it believed that LaManna owned it. Dutton Garage could not retain the vehicle because Terzini had earlier stolen it from Pacrim.
21 The applicant claims that as a result of Terzini having earlier stolen the Ferrari from Pacrim the loss it suffered was:
(a) the price it paid Mr La Manna for the Ferrari ($875,000); or
(b) alternatively, ownership of the Ferrari on and from 30 May 2014.
22 An affidavit by LaManna made 11 May 2017 was filed on behalf of the applicant. He said that he purchased the Ferrari from Dutton Garage on 24 July 2013 for $550,000. Subsequent to his purchase of the Ferrari he carried out some maintenance on it , drove the vehicle for a period of time and resold it to Dutton Garage. On 30 May 2014 he sold the car back to Dutton Garage for $875,000.
23 The Nakas affidavit was filed on behalf of the applicant. He is the sole director of the applicant which trades under the registered business name of “Melbourne Prestige”.[4]
[4] Paragraph 1 of the Nakas affidavit.
24 A valuation of the Ferrari by Graeme Cuthbert, an automobile valuer, was exhibited to an affidavit of Edward John Maitland made 18 May 2017. The following valuations of the Ferrari were made by Mr Cuthbert as follows:
· At 1 July 2013 the market value was $550,000.
· At September 2014 the market value was $875,000.
· At September 2016 the market value was $950,000 to $1,000,000.
25 The applicant claims that it has suffered a loss of $875,000, the price it paid to LaManna for the Ferrari on 30 May 2014, as a result of Terzini having stolen the Ferrari and purporting to sell it to the applicant on 1 July 2013. The applicant seeks a Compensation Order pursuant to s86(1) of the Sentencing Act, in that amount.[5]
[5] Paragraph 33, applicant’s written submissions dated 19 May 2017.
26 I accept the applicant’s submission that the $465,000 that was the subject of the three charges of obtaining financial advantage by deception is part of the greater amount of $875,000 claimed by the applicant. The applicant submitted that the $875,000 is the best crystallisation of the loss that Dutton Garage has suffered.[6]
[6] Transcript 21 August 2017, p3.
Causation
27 Loss is compensable pursuant to s86 of the Sentencing Act when it is “…a result of an offence.” Injury is compensable pursuant to s85B of the Act when it is “…a direct result of the offence.” The Sentencing Act circumscribes a compensable injury more strictly than a compensable act. In order for the injury to be a direct result of an offence it should play a “significant role” in bringing about the compensable injury.[7]
[7]Kaplan v Lee-Archer (2007) 15 VR 405 per Buchanan JA, [28].
28 The defence accepted the applicant’s submissions that the applicant does not need to establish a direct cause. A cause is sufficient. However the defence submits that the loss that is claimed and said to be suffered occurred the best part of a year after the offences were committed and in circumstances where the applicant has sold the vehicle and then entered into a separate transaction to regain it.
29 I am satisfied that the applicant has suffered loss as a result of the offences. The jury’s verdict makes it clear that when Terzini purported to sell the Ferrari to Dutton Garage, he did not have Pacrim’s authority to sell it. The reason why Dutton Garage suffered a loss and had to return the Ferrari to Pacrim was because the Ferrari had previously been stolen by Terzini. Section 86 is a remedial provision designed to compensate victims for any loss suffered and should be interpreted liberally.[8]
[8] Werden v Legal Services Board; Legal Services Board v Werden [2012] VSCA 278.
Terzini’s financial circumstances
30 Section 86(2) allows the Court, so far as practicable, to take into account “the financial circumstances of the offender and the nature of the burden that its payment will impose.”
31 $428,000 is currently held by ACO to satisfy any order made by the Court for compensation. If those funds are not utilised to satisfy any such order, they will not be returned to the defendant.[9]
[9] See paragraphs 14 -18 above and s 35(1)(ca) of the Confiscation Act.
32 The applicant referred to the affidavit made by Terzini on 19 July 2016 (Terzini’s affidavit) and submitted that the documents exhibited to that affidavit were submitted to Victoria Legal Aid in relation to an application for legal aid in June 2016. I accept the defence submission that Terzini’s financial situation has not changed since the time he was remanded into custody. I accept the defence submission that the material supports Terzini’s current instructions that he does not have any financial means at the moment. He is impecunious. He owns no property and has no assets.
33 I also accept that Terzini had worked up until his incarceration. Terzini had worked in the purchasing and sale of vehicles and in particular, the purchase and sale of prestige vehicles. He was also a good motor mechanic. As he is going to be released into the community at the age of 50, he is prepared to take whatever employment he can get to start with, be it working in retail, in a fruit shop or at a market. His ultimate goal is to someday work with cars again in some capacity. The defence submitted that Terzini will probably find it extremely difficult financially for a considerable period of time upon his release from custody given that the industry in which he has built his career, the buying and selling of vehicles, will no longer to be available to him.
34 In DPP v Esso Australia Pty Ltd[10] Cummins J held:
…unlike ordinary civil process where the impecuniosity of the defendant is irrelevant, in s85B applications the court may take into account the financial circumstances of the offender and the nature of the burden that the payment ordered will impose: s85H(1). Seventh, by s85H, the rehabilitation of the offender, always an important matter in sentencing, should not be deflected or defeated by a compensation order.
[10] [2003] VSC 367, [7].
35 The defence submitted that a significant overarching financial burden, the type which is sought by the applicant in this case, will as a matter of common sense stand to greatly imperil Terzini’s prospects for rehabilitation. The defence referred to Josefski v Keven Donnelly and Ors[11] and submitted that there is a need to avoid making a compensation order which would impose a crushing financial burden on the defendant and thus harm his prospects of rehabilitation.
[11] [2007] VSCA 6.
36 As stated by Bell J in RK v Mirik and Mirik :
The power to order compensation is discretionary. It is conferred in terms that allow the court to take into account the financial circumstances of the offender and the nature of the burden that payment of compensation will impose. This permits the court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to imprisonment. These are very significant considerations in the exercise of the discretion. After taking these considerations into account, the court could order no or reduced compensation, defer payment of compensation or order payment of compensation by instalments over a reasonable period.
Admitting the significance of these considerations, there are cases where the court could exercise its discretion to order compensation despite the offender’s lack of means and the burden that payment of compensation would impose. In such cases, the interests of giving the victim just civil compensation will have priority over the interests of the offender in avoiding that result in criminal proceedings.[12]
[12] (2009) 21 VR 623, [127] – [128].
37 The applicant submitted that the theft by Terzini was deliberate. There were a number of deliberate deceptions that resulted in a company being denied a very large amount of money. There is some moral turpitude attached to that.
38 The power to order compensation is discretionary. As to quantum the defendant referred to the fact that on 1 July 2013, the applicant purchased the car and paid $465,000 over the next few days. Within about three weeks, the car was sold to LaManna for a profit of $85,000 and that is relevant when quantifying the overall loss.
39 On the basis of the evidence I find that Terzini has no assets with which to satisfy an order for compensation. On his release from prison, it is likely that he will obtain employment although his employment prospects at this stage are uncertain.In Nicholson v Kostov[13] Kellam J made an order for $47,500 against an offender whose means wouldn’t fully cover it. His Honour said “there are a range of future possibilities which might change the situation and the financial circumstances of the respondent cannot be the final determinant of a sum of compensation to be ordered.”
[13] [2006] VSC 328,[20].
40 Taking into account the profit of $85,000 made by the applicant when it sold the Ferrari to LaManna I propose to reduce the loss claimed by the applicant to $790,000. Taking into account the financial circumstances of Terzini, the burden that payment of compensation would impose and the potential impairment of his rehabilitation, I propose to reduce the compensation order by 20 per cent. Terzini is ordered to pay compensation to Dutton Garage Wholesale under s86 of the Sentencing Act in the amount of $632,000.
Costs
41 The applicant has made an application for costs in this matter. The general position relating to the awarding of costs in compensation applications is that “each party to a proceeding… must bear their own costs of the proceeding unless the court otherwise determines.”[14] Cases where costs have not been awarded to successful applicants[15] (as well as cases in which they have been awarded) have placed emphasis on the importance of the existence of “unusual or special circumstances” before an exception is granted.[16] As J Forrest J noted in Stevens v Baxter, “in many, if not all, cases in which applications under s 85B are made the circumstances are such that a court would (absent legislative direction) be readily disposed to order costs in favour of the victim”.[17] The existence of such legislative direction, whereby the general requirement is that parties must bear their own costs, means that the court must exercise its discretion sparingly and only in exceptional circumstances.
[14] Sentencing Act 1991 (Vic) (‘the Act’) ss 85K, 86(9D). While costs in this application would fall under s 86(9D), cases falling under s 85K have fairly been treated as analogous in the applicant’s submission and will be treated as such here.
[15] Stevens v Baxter [2009] VSC 257; Adams v Xypolitos [2015] VSC 747; Moresco v Budimir [2015] VSC 51; Brooks v Meade [2017] VSC 172.
[16]Stevens v Baxter [2009] VSC 257, [37].
[17] [2009] VSC 257.
42 Costs are not awarded as a matter of practice because concern has been expressed that, as respondents are often unrepresented in these types of proceedings, they would be “coerced into consent by the threat of costs orders made against whatever assets they may retain.”[18]
[18]Adams v Xypolitos [2015] VSC 747, [41].
43 In V1 v Xydias (Xydias)[19] Warren CJ referred to the second reading speech for the amendment bill introducing ss 85K and 86(9D). There, the Attorney General noted that ‘while the presumption will be maintained that each party should bear their own costs in these cases, there may be circumstances when costs should be awarded against a party, such as in the case of a convicted offender unreasonably contesting the victim’s application.”[20] This is not the only situation where an award of costs may be appropriate. There is no exhaustive list of factors that can and/or should be given weight when turning to the issue of costs once a compensation application is determined. In Xydias, the following factors were given consideration when determining whether an award of costs was appropriate:
… the severity of the impact of the offences upon the victims, and the complexity of the matters that require legal representation. …The number of victims and offences, the long period of time between much of the offending and the criminal proceedings, and the need for psychological and psychiatric evidence all contributed to the complexity of the applications before me. Further, these applications arose from circumstances that were unprecedented in this State. It was essential for the purpose of adequate and proper preparation and presentation of the claim of each applicant that legal assistance was obtained. In addition, the effect of the offending and the nature of their injuries resulted in a situation where the assistance of counsel was necessary.[21]
[19] [2009] VSC 616, [124].
[20] Victoria, Parliamentary Debates, Legislative Assembly, 25 March 1999, 194 (the Hon JLM Wade, Attorney General.
[21] [2009] VSC 616, [127].
44 In support of this application, counsel for the applicant provided a list of cases where costs were awarded to successful applicants. It is appropriate that each case be considered here, so that sufficient weight is given to the applicant’s argument, even though the exercise of this discretion “turns largely on the facts of each case”[22] and there is no case identical to this case.
[22]V1 v Xydias [2009] VSC 616, [126].
45 The first of these cases, Trachternach v Vereker, was handed down prior to the introduction of ss 85K and 86(9D) of the SentencingAct and did not involve any discussion as to, nor award of, costs.[23] As such, this case is irrelevant.
[23](Unreported, County Court of Victoria Morrow J, 11 November 1997).
46 In Gregory v Gregory, costs were awarded to the two applicants.[24] The respondent in that matter murdered his stepdaughter and intentionally caused serious injury to his wife, who then became the first applicant. The second applicant was the father of the murder victim. Costs were awarded to the applicants “because of the substantial ambit of this matter and its nature”.[25] Whilst these reasons were not elaborated , the “ambit of this matter” likely refers to the extensive documentation submitted in support of the compensation applications, which included reports from treating doctors, neuropsychologists and psychologists and spoke of the debilitating injuries suffered by the applicants (both mental and physical, in the case of the mother) after the murder of their daughter, which in turn shaped the highly emotional “nature” of the matter.
[24][2000] VSC 190.
[25]Gregory v Gregory [2000] VSC 190, [32].
47 The scope and nature of the matters before the Court today are clearly distinct from the distressing crimes committed prior to the compensation applications in Gregory. Whilst counsel has provided a number of documents in support of this application, many of these documents have been additional documents from the same source and none of the documents go to show a long-lasting, nor emotionally distressing, impact from the respondent’s crime. The applicant in this case has been able to continue to run its business after the respondent’s crimes, whilst the applicants in Gregory were debilitated emotionally and physically.
48 R v Scarborough involved compensation claims by nine victims of a shooting spree.[26] The applicants were wounded with lifelong impact.[27] Teague J awarded costs to the successful applicants, a course his Honour may not have taken “if eight of the nine applicants had not chosen to use the same solicitors, a course that had two advantages. It kept costs down. It also maximised the prospect of relative consistency as between most of the applicants.”[28] There is only one applicant in this case, so a consideration of keeping costs down through using the same solicitors is not applicable.
[26][2000] VSC 255.
[27]R v Scarborough [2000] VSC 255.
[28]R v Scarborough [2000] VSC 255, [31].
49 The applicant also cited a series of matters titled DPP v Esso Australia Pty Ltd.[29] These cases involved numerous applications for compensation after an incident at Esso’s plant in Longford in 1998 left two employees dead and numerous others injured and grievously affected. While costs were awarded in all three of these matters to a large number of successful applicants, reasons were not provided detailing the factors taken into account in each case. It is reasonable, however, to assume that costs were awarded due to the wide-ranging impact and long-lasting effects of the incident, as seen above in Gregory v Gregory. A number of these applications were granted out of the ordinary time allowed for such applications, due to the “injury suffered by the… applicants [developing] over time – indeed over the 5 years to today – [which were] not immediately apparent. Also the injury derived in part from events which occurred more than a year after the convictions, events which themselves were a direct result of the offences.”[30] This particular quote relates to a marriage breakdown that is directly related to the workplace incident, but is applicable to all injuries, the most prevalent among these being psychiatric injuries including depressive, adjustment and post-traumatic stress disorders. Absent any explicit reasons for the awarding of costs, these cases are distinct from the considerations before the court in this matter, where there is no evidence of psychiatric injury or long-term harm resulting from the respondent’s offending.
[29][2001] VSC 513, [2003] VSC 222 and [2003] VSC 367.
[30]DPP v Esso Australia Pty Ltd [2003] VSC 222, [8].
50 The compensation application in Wolthuizen v ACN 006 465 327 Pty Ltd also arose from a workplace incident, whereby the applicant was injured in the course of his employment by the respondent.[31] Costs were awarded in that matter “having regard to the considerable difficulties the applicant experienced in even bringing this matter to the notice of the respondent and the legal issues being of a complex nature, though quite properly argued”.[32] These complexities arose from numerous sources – the court was required to determine whether s 86(9D), which came into force after this application was made, applied to pending matters. It was also complicated “due to the injury taking place during a period where the Accident Compensation Act was something of a political football being amended to accord with political policies and philosophies.”[33] The applicant was also required to prove that he was not precluded from compensation under s 86 of the SentencingAct by reason of the application of the Accident Compensation Act.[34] The “considerable preparation”[35] undertaken by the applicant’s legal representative in dealing with these issues strongly supported the awarding of costs in this matter. Such complexities cannot be said to exist in the current matter, where the law is much clearer and guidelines on the application of the law can be sought through earlier judgments.
[31](Unreported, County Court of Victoria, White J, 14 December 2000), 1.
[32]Wolthuizen v ACN 006 465 327 Pty Ltd (Unreported, County Court of Victoria, White J, 14 December 2000), 21.
[33]Wolthuizen v ACN 006 465 327 Pty Ltd (Unreported, County Court of Victoria, White J, 14 December 2000), 3.
[34]Wolthuizen v ACN 006 465 327 Pty Ltd (Unreported, County Court of Victoria, White J, 14 December 2000), 9.
[35]Wolthuizen v ACN 006 465 327 Pty Ltd (Unreported, County Court of Victoria, White J, 14 December 2000), 20.
51 Xydias involved compensation claims made by the 11 female victims of the respondent, who pleaded guilty to 25 counts of rape and 61 counts of indecent assault occurring between 1991 and 2006.[36] The applicants, who were drugged by the respondent prior to the offending, “suffered horribly from the later discovery of what the respondent did to them. For the most part, they learned of the depraved sexual abuse perpetrated on them when sitting in a police station at police request, watching films of their unconscious selves being assaulted and raped by a depraved creature.”[37] The applicants would “likely suffer psychological symptoms for most of their lives.”[38] The assistance of counsel was vital in this matter. Warren CJ noted that this was similar to the circumstances in Kaplan v Lee-Archer, where the nature of the injury to the victim and the circumstances in which it arose justified the assistance of counsel.[39] As such, it appears that counsel was not briefed to deal with particularly complex matters, but instead to give a voice to the distressed and deeply impacted victims. These circumstances are clearly distinct from the current application before this court.
[36][2009] VSC 616.
[37][2009] VSC 616, [1].
[38][2009] VSC 616, [2].
[39](2007) 15 VR 405, [44].
52 The cases submitted by the applicant all involve highly emotional matters, and in many the awarding of costs appears to reflect an acceptance of the toll the offending took on the applicants in these cases and their inability to present their own cases as a result. However, compensation applications arising from distressing events will not always result in costs being awarded. Moresco v Budimir involved an application by the family of a deceased man against his murderer.[40] Costs were not awarded, ‘despite the seriousness of the offence, and the seriousness of the consequence of the offence for the victims,’ as the judge was “not convinced that this application was so complicated that it warrants the award of costs.”[41] This approach was adopted in Brooks v Meade.[42] These cases demonstrate the highly discretionary nature of costs being awarded in these matters.
[40] [2015] VSC 51.
[41]Moresco v Budimir [2015] VSC 51, [59].
[42] [2017] VSC 172.
53 The respondent’s involvement in this matter is similar to that in Moresco v Budimir, where the respondent was understood to have accepted “that there was an entitlement to compensation; his submissions were directed, fairly, to the question of quantum.”[43] It thus could not be found “that Mr Budimir, a convicted offender, contested the application unreasonably.”[44] However, even in cases where an unrepresented respondent has unreasonably included “vexatious” defences in their case, costs may still not be awarded to the applicant.[45] This has not occurred here.
[43] [2015] VSC 51, [58].
[44]Moresco v Budimir [2015] VSC 51, [58].
[45]Adams v Xypolitos [2015] VSC 747, [41].
54 The defence sought to make submissions on very discreet points. In the opening submissions filed by the defence, the defence stated that it does not oppose the making of a compensation order under s86 of the Sentencing Act. The defence contested the application on the issue of quantum. Counsel for the defendant directed the court to the respondent’s financial position.
55 The application for costs in this matter rests upon the necessity of briefing counsel due to the “considerable complexity such that engagement of solicitors and counsel were essential.”[46] However, the only case submitted in which an award of costs was made on the basis of the complexity of the matter itself was Wolthuizen, where the law surrounding the application was not settled, requiring counsel to provide in depth, highly technical submissions.[47] Notwithstanding that there has been considerable material put before me by the applicants, the factual matters or the legal matters in this matter are not complex. They are straight forward and routine for matters of this kind. There is no doubt that counsel for the applicant in this matter has spent a considerable amount of time preparing documents and submissions, which has greatly assisted the Court. The material requested and provided in this matter, however, has not mirrored the level of complexity in other cases where complexity forms the basis of the award of costs. As such, there do not appear to be particularly special or unusual circumstances in this case warranting a deviation from the general practice that parties must bear their own costs.
[46]Applicant’s Outline of 19 May 2017, [42].
[47]Wolthuizen v ACN 006 465 327 Pty Ltd (Unreported, County Court of Victoria, White J, 14 December 2000).
56 Finally, the applicant submitted that “[r]equiring a successful applicant to pay his or her own costs would defeat the purpose of the act in as much as the applicant would receive the compensation minus costs. Such a course of action would deny the applicant the full benefit of the order of the court.”[48] This statement ignores the purpose of s 86(9D) of the SentencingAct. Requiring successful applicants to pay their own costs cannot defeat the purpose of the Sentencing Act, as “[t]he purpose of an Act, or part of an Act, is evinced by the text of that Act. Section 85K[49] is one such provision. The purpose evinced by that provision is that, prima facie, a successful applicant ought to bear his or her own costs.”[50]
[48] Applicant’s Outline of 19 May 2017, [43].
[49]And, similarly, s 86(9D).
[50]Moresco v Budimir [2015] VSC 51, [60].
57 Having considered the submissions made by counsel, I have formed the view that the circumstances of this compensation application do not warrant the award of costs to the applicant. I refuse the applicant’s application for costs and order that each party must bear their own costs of the application.
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