Kerr v Colley - [2002] VSC 209

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW

No. 7720 of 2001

GEOFFREY HEYWOOD KERR	Plaintiff
V
CONSTABLE GREGORY COLLEY AND THE COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2002
DATE OF JUDGMENT:	31 May 2002
CASE MAY BE CITED AS:	Kerr v Colley
MEDIUM NEUTRAL CITATION:	[2002] VSC 209

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Practice and procedure – Costs – County Court Appeal – successful appeal from Magistrate – refusal to order costs - discretion as to costs – Failure to give reasons – Error of law on the face of the record - S. 83 Magistrates Court Act 1989 – S.10 Administrative Law Act 1978.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Nash QC with Mr J Lavery	Bassett & Sharkey Portland
For the Defendant	Mr J Rapke QC	Kay Robertson Solicitor for Public Prosecutions

HIS HONOUR:

On 13 June 2001 the plaintiff was convicted at the Magistrates Court at Portland of three criminal offences: one charge of recklessly causing serious injury and two charges of assault with a weapon. He appealed to the County Court pursuant to s 83 Magistrates Court Act 1989. That appeal came on for hearing before the Court at Warrnambool on 1 August 2001.

Such an appeal being by way of re-hearing the primary judge heard all of the evidence and, on 3 August 2001, delivered a judgment in which he upheld the plaintiff's appeals in respect of each of the charges of which he was convicted in the Magistrates' Court. It appears that he did so on the basis that the prosecution had not discharged its onus of proving beyond reasonable doubt that the plaintiff did not act in self defence.

Following the upholding of the plaintiff's appeal his counsel sought an order for costs. The primary judge refused to make that order.

By an Originating Motion filed in this Court on 26 September 2001, pursuant to Order 56 of the Supreme Court Rules, the plaintiff seeks judicial review of the primary judge's decision to refuse to order costs in his favour. In the Originating Motion he seeks orders that the primary judge's order refusing his costs be quashed and that his application for costs be remitted to the County Court for hearing and determination according to law. The orders sought were opposed by the first defendant; the second defendant adopting the customary position of abiding by the order of this Court.

In his affidavit in support of the motion the plaintiff deposed to the primary judge having upheld his appeal from the Magistrate and then deposed as follows:-

"10. To the best of my recollection the exchange between my barrister and the learned Judge was as follows:
"Mr Lavery said: 'In the circumstances Your Honour I am instructed to make application for the appellant's costs.'
His Honour said: 'No.'
Mr Lavery said: 'Well Your Honour in these circumstances where the appellant has succeeded on the appeal he is entitled…

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 Kerr v Colley

Details

AGLC: Kerr v Colley [2002] VSC 209
Case: [2002] VSC 209
Decision Date: 31 May 2002

CaseChat Overview and Summary

In the matter of Kerr versus Colley, the appellant, Kerr, appealed a decision of the County Court of Victoria which had dismissed their application for an order of costs. The dispute arose from an earlier proceeding in the Magistrates' Court of Victoria, which was resolved in favour of the respondent, Colley. The appeal was heard in the County Court of Victoria, where the primary judge dismissed the appellant's application for costs, finding that the error of law was not sufficiently serious to warrant an order for costs.

The central legal issue before the County Court was whether the primary judge had exercised his discretion correctly in refusing to order costs to the appellant. The appellant argued that the primary judge's failure to give reasons for the refusal to order costs was itself an error of law, and that this warranted an order for costs under section 83 of the Magistrates Court Act 1989 and section 10 of the Administrative Law Act 1978. The respondent contended that the primary judge's decision was sound, and that the error of law did not reach the threshold of seriousness required to justify an order for costs.

The court found that while the primary judge's failure to give reasons for the refusal to order costs was indeed an error of law, this did not automatically entitle the appellant to costs. The court emphasised that the exercise of discretion in such matters was broad and that the seriousness of the error of law was a key consideration. The court held that the error in this case was not sufficiently egregious to warrant an order for costs. Consequently, the appeal was dismissed, and the appellant was not granted the costs they sought.

The final orders of the court were that the appeal be dismissed, and that the appellant pay the respondent's costs of the appeal, to be taxed on the standard basis.

Orders