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Johnson v Appeal Costs Board

Johnson v Appeal Costs Board

Case [2014] VSC 313 1 July 2014

Judicial Review

Constitutional Validity

Natural Justice & Procedural Fairness

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No S CI 2013 5054

KANE JOHNSON	Plaintiff
v
APPEAL COSTS BOARD as constituted by DENIS DAVIES, JOCELYN COLE and JANINE WIRTH and subsequently by DENIS DAVIES and JOCELYN COLE	Defendant

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2014
DATE OF JUDGMENT:	1 July 2014
CASE MAY BE CITED AS:	Johnson v Appeal Costs Board
MEDIUM NEUTRAL CITATION:	[2014] VSC 313

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ADMINISTRATIVE LAW – Application for judicial review – Decision of Appeal Costs Board refusing payment under indemnity certificate – Indemnity certificate filed out of time – Where discretion to accept certificate filed out of time if in the interests of justice to do so –Whether refusal to accept the certificate unreasonable – Whether Appeal Costs Board failed to consider relevant considerations – Application refused – Appeal Costs Act 1998 ss 35D and 35E.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G Boas	Robert Stary Lawyers
For the Defendant	Mr P Hanks QC with Ms P Knowles	Victorian Government Solicitor’s Office

HER HONOUR:

On 23 September 2011, the plaintiff, Mr Johnson, was granted an indemnity certificate by the Court of Appeal in its Criminal Division following the determination of an appeal against sentence.[1] On 19 November 2012, the plaintiff’s solicitors, Robert Stary Lawyers, applied to the Appeal Costs Board (‘Board’) for payment under that certificate. The Board refused the application since the certificate had not been lodged within the one-year time limit imposed by s 35D of the Appeal Costs Act1998 (‘the Act’) and had therefore expired. In this proceeding, the plaintiff seeks judicial review of the Board’s decision refusing the plaintiff’s application for payment under the expired certificate.
[1]DPP v Johnson [2011] VSCA 288.

Background

Both the award of indemnity certificates and any payments made under them are governed by the Act.

Section 35D provides:

Time limits for applications to Board

An application for payment under this Act must be lodged with the Board not later than 12 months after the final determination of the matter to which the indemnity certificate relates.

Section 35E provides:
Expiry of indemnity certificates
(1) Subject to subsection (2), if an application for payment under this Act is not lodged with the Board within the time referred to in section 35D, the indemnity certificate expires.
(2) Despite subsection (1), the Board may determine that an application for payment under this Act may be assessed and determined as if the indemnity certificate had not expired, if it considers that it is in the interests of justice to do so.
The purpose of the Act is largely benevolent in that it is intended to partially compensate litigating parties who suffer loss through incurring legal costs arising from judicial error or other specific circumstances for which the litigating party is not responsible.

Pursuant to s 35D, the plaintiff was required to lodge his application for payment with the Board…

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 Johnson v Appeal Costs Board

Details

AGLC: Johnson v Appeal Costs Board [2014] VSC 313
Case: [2014] VSC 313
Decision Date: 1 July 2014

CaseChat Overview and Summary

The case of Johnson v Appeal Costs Board presented a dispute between the appellant, Johnson, and the Appeal Costs Board regarding the refusal of a payment under an indemnity certificate. The appellant sought judicial review of the Board's decision, arguing that it was unreasonable and that the Board failed to consider relevant matters. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the Appeal Costs Board's refusal to accept the indemnity certificate, which was filed out of time, was unreasonable and whether the Board failed to consider relevant considerations when making its decision. The appellant contended that the Board had discretion to accept the certificate if it was in the interests of justice to do so, and that this discretion was not exercised appropriately.

In addressing the issues, the court examined the provisions of the Appeal Costs Act 1998 and the relevant case law. The court found that the Appeal Costs Board's decision was not unreasonable and that the Board had considered all relevant matters. The court held that the Board's discretion to accept an indemnity certificate filed out of time was to be exercised judiciously, and that the Board had appropriately considered the circumstances of the case before declining to accept the certificate. The court further found that the Board had not failed to consider any relevant considerations in making its decision. Consequently, the application for judicial review was dismissed.

The court's final orders were that the appellant's application for judicial review was refused, and that the Appeal Costs Board's decision to refuse payment under the indemnity certificate was upheld. The court did not make any orders for costs.

Orders