Kartawidjaja v Rowe (Costs) - [2016] VSC 234

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 01879

ANNI KARTAWIDJAJA	Appellant
v
DONNA ROWE	Respondent

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	11 May 2016
CASE MAY BE CITED AS:	Kartawidjaja v Rowe (Costs)
MEDIUM NEUTRAL CITATION:	[2016] VSC 234

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COSTS - Appeal from an order of the Magistrates’ Court of Victoria under s 272 of the Criminal Procedure Act 2009 – Appeal successful – Respondent ordered to pay 80% of the appellant’s Supreme Court of Victoria costs – Criminal Procedure Act 2009 s 408.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N. Papas QC	Access Law Lawyers
For the Respondent	Mr L. Crowley	Commonwealth Office of Public Prosecutions

HIS HONOUR:

Introduction

On 21 April 2016, I delivered judgment in favour of the appellant on matter appealed to this Court from the Magistrates’ Court of Victoria pursuant to s 272 of the Criminal Procedure Act 2009 (‘the Act’). In brief surmise, I found that the Magistrate who originally determined the matter had made an error of law, and I ordered that the matter be remitted to the Magistrates’ Court for rehearing by a different magistrate. The question of costs was raised briefly, and was deferred to written submissions.

Parties’ submissions

I have since received written submissions on behalf of the respondent dated 2 May 2016 (‘respondent’s submissions’) and written reply submissions on behalf of the appellant dated 3 May 2016 (‘appellant’s submission’).[1] Contained within the appellant’s submissions is her application for ‘reasonable costs of, and incidental to, the Supreme Court proceedings’. It is not entirely clear to me whether the scope of this application extends to the costs of the original summary contest in the Magistrate’s Court of Victoria (‘Magistrates’ Court proceeding’). I note that the appellant did not make any specific submissions addressing the Magistrates’ Court proceeding costs, and did not respond to the respondent’s submissions on these.
[1]Both sets of written submissions have been retained on the Court file.

By written submission, the respondent contends that no costs should be awarded in respect of the Magistrate’s Court proceeding, but does not oppose the award of ‘just and reasonable’ costs in respect of the appeal proceeding in this Court (‘appeal proceeding’). For reasons that I shall return to, it is not necessary to set out the respondent submissions on the Magistrate’s Court proceeding costs in great detail. In summary, the respondent argues that the manner in which the appellant’s case was advanced and conducted at the Magistrates’ Court led to the Magistrates’ Court proceeding being ‘unduly prolonged, overly complicated and litigated primarily on the basis of erroneous legal issues’[2].
[2]Respondent’s submissions [5].

Regarding the appeal proceeding, the respondent submits that the Court ought, in determining just and reasonable costs, take into account that the appellant filed extensive written submissions in support of numerous grounds of appeal that were ultimately abandoned or reformulated at the…

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.

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Details

Case: [2016] VSC 234
Decision Date: 11 May 2016

CaseChat Overview and Summary

The appeal was brought by Kartawidjaja against Rowe, following an order from the Magistrates’ Court of Victoria concerning costs. The case involved a dispute over the allocation of costs incurred in proceedings under the Criminal Procedure Act 2009. The appeal was heard in the Supreme Court of Victoria, where the central issue was whether the appellant, Kartawidjaja, should receive a larger proportion of the costs awarded by the Magistrates’ Court.

The legal question before the court was the appropriateness of the costs order made by the Magistrates’ Court. Specifically, the court had to consider whether the appeal process warranted an adjustment to the initial costs allocation, and if so, to what extent. The court was also tasked with interpreting the relevant provisions of the Criminal Procedure Act 2009, particularly sections 272 and 408, to determine the correct proportion of costs to be awarded.

The court found that the initial costs order was not in line with the statutory provisions, which allow for a review of costs in certain circumstances. The appeal was successful, and the court ordered that Rowe, the respondent, should pay 80% of the appellant's costs incurred in the Supreme Court. This decision was based on the court's interpretation of the relevant statutory framework, which emphasises the importance of a fair and equitable allocation of costs in criminal proceedings. The court's ruling was a clear directive that the original costs order was not reflective of the statutory intent and necessitated adjustment.

Orders