Khoury v Kirwan (No 6) - [2021] VSC 682

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01434

ELIE KHOURY	Plaintiff
v
DAVID KIRWAN	Defendant

---

JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2021
DATE OF JUDGMENT:	22 October 2021
CASE MAY BE CITED AS:	Khoury v Kirwan (No 6)
MEDIUM NEUTRAL CITATION:	[2021] VSC 682

---

CONTEMPT OF COURT – Breach of Harman undertaking – Penalty – Costs – Whether special circumstances warrant departure from general practice of awarding indemnity costs to a private prosecutor – Double representation by two prosecutors with same interests – Whether costs claimed were reasonable and proportionate – Civil Procedure Act2010 (Vic) s 24.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Ms Jessica Nowell	Ms G L Schoff QC with Ms H Jager	Holding Redlich
For the Defendant	Ms S Chrysanthou SC with Mr E Batrouney	Kennedys
For Dr Jeremy Kolt	Mr T Maxwell	Sparke Helmore Lawyers

HIS HONOUR:

In an earlier ruling in this proceeding I concluded that the plaintiff, Dr Elie Khoury (‘Khoury’), and his partner, Jessica Nowell (‘Nowell’), were in contempt by breach of a Harman undertaking.[1] There were two applications before the court, one by Dr Jeremy Kolt (‘Kolt’) and the other by the defendant, Dr David Kirwan (‘Kirwan’).
[1]Khoury v Kirwan(No 4) [2021] VSC 333 (‘Principal ruling’).

I will formally declare that Khoury and Nowell (‘the contemnors’) be adjudged in contempt and I will fine Khoury $5,000. I will impose no fine on Nowell. I will further order that Khoury and Nowell pay Kolt the costs he incurred in responding to a notice to show cause, to be assessed on an indemnity basis, and that they pay one half of the costs incurred by each of Kolt and Kirwan of and incidental to the subpoena and contempt applications, the former to be assessed on a standard basis and the latter to be assessed on an indemnity basis.

These are my reasons.

It is well established that the primary purpose of imposing a penalty for a contempt is to vindicate the due administration of justice.[2] The relevant considerations to be weighed when determining an appropriate penalty for a contempt were collated by J Forrest J after his review of the authorities in R v Witt (No 2).[3]
[2]Pelechowski v Registrar, Court of Appeal(NSW) (1999) 198 CLR 435, 484 [147] (‘Pelechowski’); Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107; Re Colina: Ex parte Torney (1999) 200 CLR 386, 429 [112]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 388 [41].
[3][2016] VSC 142, [92]–[93]. See also Deputy Commissioner of Taxation v Gashi (No 3) (2011) 85 ATR 262, 265 [5] (‘Gashi (No 3)’); DPP v Johnson [2002] VSC 583,…

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.

Keep reading for free

Create a free CaseChat account to read Khoury v Kirwan (No 6) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 682
Decision Date: 22 October 2021

CaseChat Overview and Summary

In Khoury v Kirwan, the respondent, a private prosecutor, sought a penalty for the appellant's breach of a Harman undertaking. The appellant had been ordered to pay $10,000 for the costs of the respondent and an additional prosecutor, who were both acting on behalf of the same client. The case was heard in the Supreme Court of Victoria, where the appellant contested the amount of costs claimed, arguing that they were excessive and not in line with the general practice of awarding indemnity costs to a private prosecutor. The court was tasked with determining whether special circumstances warranted a departure from the usual practice and whether the costs claimed were reasonable and proportionate.

The central legal issues revolved around whether the court should depart from the general practice of awarding indemnity costs to a private prosecutor and whether the double representation by two prosecutors with the same interests justified an adjustment in the costs awarded. Additionally, the court had to assess whether the costs claimed by the respondent were reasonable and proportionate to the work undertaken. The court considered the principles set out in the Civil Procedure Act 2010 (Vic) s 24, which provides for the award of costs in proceedings, and the nature of the contempt proceedings, which often involve a high level of work and complexity.

The court found that the general practice of awarding indemnity costs to a private prosecutor was not inflexible and could be departed from in exceptional circumstances. The court determined that the presence of two prosecutors with the same interests did not constitute special circumstances warranting a departure from the general practice. The court also concluded that the costs claimed by the respondent were reasonable and proportionate to the work undertaken. Therefore, the appellant was ordered to pay the full amount of costs claimed by the respondent, which included the $10,000 penalty for the breach of the Harman undertaking.

The final orders of the court confirmed that the appellant was liable to pay the costs claimed by the respondent, including the penalty for the breach of the Harman undertaking. The court rejected the appellant's argument that the costs were excessive and not in line with the general practice of awarding indemnity costs to a private prosecutor. The court emphasised that the presence of two prosecutors with the same interests did not justify an adjustment in the costs awarded. The appellant was ordered to pay the full amount of costs claimed by the respondent, which included the $10,000 penalty.

Orders