General Television Corporation Pty Ltd v DPP & Anor (No 2)

[2008] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3727 of 2008

GENERAL TELEVISION CORPORATION PTY LTD

Appellant

v.

DIRECTOR OF PUBLIC PROSECUTIONS

and

“A” (an accused in a pending criminal trial)

(No 2)

Respondents

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JUDGES:	Warren CJ, Vincent and Kellam JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2008
DATE OF JUDGMENT:	11 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 103

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PRACTICE AND PROCEDURE - Application For Costs – Whether Court exercising civil or criminal jurisdiction.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Merkel QC with Mr C W Horan and Ms K L Walker	Johnson, Winter & Slattery
For the First Respondent	Mr J Rapke DPP, QC with Mr G Horgan SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Second Respondent	Mr SA Shirrefs SC	Slades & Parsons Solicitors

WARREN CJ
VINCENT JA
KELLAM JA:

1. This is an application for costs resulting from an appeal against orders of a judge of the Trial Division of this Court made on 15 February 2008 prohibiting the publication, broadcasting or exhibition of a television programme entitled ‘Underbelly’ until after the trial of ‘A’ has been completed.[1] 

   [1]General Television Corporation Pty Ltd v DPP & Anor [2008] VSCA 49.

1. The appeal was allowed in part and then only to a limited extent.  Orders 1 and 2 were varied so as to direct the orders to the appellant only.  However, this narrowing of the breadth of orders 1 and 2 was technical, not substantive in nature as this Court made clear:

the fact that…order [1] is directed against the [appellant] only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a  grave risk of being found to have committed a contempt of court.[2]

[2]Ibid [68].

1. The appeal was otherwise dismissed.  Judgment in the matter of costs was reserved and additional submissions were received from the appellant and first and second respondents.

1. The appellant submitted that there should be no order as to costs because the Court has no power or jurisdiction to make such an order in the exercise of criminal jurisdiction.  However, this submission is not to the point.  It addresses circumstances emanating directly from a criminal trial.  The present matter is a civil appeal and was, at all times, treated as such.  The parties were subject to the Supreme Court Rules, Practice Notes and procedures applicable to civil appeals. The proviso to the right of appeal contained in s 17A(3) of the Supreme Court Act 1986 did not apply and the order made by the learned trial judge was not an order made ‘on or in relation to the trial’ of A, as we made plain in the judgment.[3] 

   [3]Ibid [16].

1. The appellant’s submissions merely serve to highlight the potential for confusion between the civil matter regarding a fictional television series, which was the subject of her Honour’s orders, and the criminal trial of the accused.

1. As this is a civil matter, costs should follow the event.  There is no sound reason to depart from the usual approach.  Notwithstanding the learned trial judge’s orders were varied, the orders remain substantively intact and the appellant was unsuccessful.  The application for costs by the first and second respondents should succeed.