Jandreoski v Colley - [2004] VSC 131

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5822 of 2003

NIKOLA JANDREOSKI	Appellant
V
CONSTABLE BRETT COLLEY	Respondent
and
No. 5823 of 2003
ANTOINE MAHFOUD	Appellant
V
CONSTABLE WARREN MORGAN	Respondent
and
No. 5824 of 2003
SHANE SCHEMBRI	Appellant
V
CONSTABLE WARREN MORGAN	Respondent

---

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2004
DATE OF JUDGMENT:	21 April 2004
CASE MAY BE CITED AS:	Jandreoski and Ors v Colley and Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 131

---

COSTS - Magistrates' Court - Charges dismissed - Whether discretion of Magistrate miscarried by a refusal to order costs against the prosecutors - Magistrates' Court Act 1989 ss 92, 131.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr G Nash QC with Mr J Lavery	Balot Reilly
For the Respondents	Mr B Dennis	Victorian Government Solicitor

HIS HONOUR:

These are three appeals brought under section 92 of the Magistrates’ Court Act (“the Act”). Summary prosecutions were brought against the three appellants by the two respondents in relation to events which occurred on 16 August 2001. Each of the three appellants was charged with one count each of theft, intentionally damaging property, and being in possession of property suspected of being proceeds of crime. The appellant Jandreoski was also charged with unlicensed driving. At the hearing on 15 April 2003, all of the charges were dismissed. An application was made on behalf of the appellants for an order for their costs to be paid by the respondents. The magistrate refused to make an order as to costs. He gave reasons for so exercising his discretion under section 131 of the Act. The appellants contend that the magistrate erred in refusing to make the order applied for.

Before the magistrate, oral testimony was given by a Nick Mortis, a console employee at a BP service station in Highett. In summary, what he said included that his shift on 16 August 2001 had started at 10 p.m. the previous night, and was due to finish at 8 a.m. Around 3 a.m., Mortis saw a red Gemini driven into the service station. It was parked away from the shop area at the service station. Four men got out. They came into the shop. Mortis was then behind a screen in the console area of the shop. One man came to Mortis. That man (the first man) asked where the rest rooms were. The first man was very tall, had a big build, was dark skinned and had close cropped hair. His manner was abrupt and threatening. The rest rooms were outside the shop area. Mortis pointed them out. The first man left the shop and was away briefly. The other men moved through the shop. Another man (the second man) asked Mortis the price of a bottle of drink. The second man was tall, fairly thin, in his mid twenties, and wore a cap. Another man (the third man) brought a drink bottle over to…

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 Jandreoski v Colley

Details

AGLC: Jandreoski v Colley [2004] VSC 131
Case: [2004] VSC 131
Decision Date: 21 April 2004

CaseChat Overview and Summary

The matter before the court involved an application for costs under the Magistrates' Court Act 1989, following the dismissal of charges against the defendant. The defendant, Jandreoski, sought an order for costs against the prosecutors, Colley, after the charges against him were dismissed. The court was tasked with determining whether the Magistrate's discretion in refusing to order costs against the prosecutors had miscarried.

The central legal issue was whether the Magistrate's decision not to order costs against the prosecutors constituted a miscarriage of discretion. The court needed to examine the relevant provisions of the Magistrates' Court Act 1989, specifically sections 92 and 131, which grant the court discretion to order costs in certain circumstances. The defendant argued that the Magistrate had failed to properly exercise this discretion by not considering the unjust enrichment of the prosecutors, as the charges had been dismissed without merit.

The court considered the principles established in previous case law regarding the exercise of discretion in ordering costs. It noted that a Magistrate's decision not to order costs could only be overturned if it was shown that the decision was plainly wrong or unjust. After reviewing the Magistrate's reasons, the court found that the decision was based on a proper consideration of the circumstances and did not represent a miscarriage of discretion. Consequently, the application for costs against the prosecutors was dismissed.

The court's decision concluded that the Magistrate had not erred in refusing to order costs against the prosecutors. The application for costs was dismissed, and no further orders were made.

Orders