Kirkland-Veenstra v Stuart (No 2) - [2008] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3737 of 2006

TANIA KIRKLAND-VEENSTRA
TANIA KIRKLAND-VEENSTRA	Appellant
v
DAVID STUART & ORS (NO 2)
Respondents

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JUDGES:	WARREN CJ, MAXWELL P and NETTLE JA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 March 2008
DATE OF JUDGMENT:	29 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 211

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PRACTICE AND PROCEDURE – Crown – Police – Appeal – Costs – Application for indemnity certificate by respondent police officers – Whether ordinary member of Victoria Police “person representing the Crown” – Whether exercise of personal or original discretion – Certificate granted – Enever v The King (1906) 3 CLR 969, State of Victoria v Horvath (2002) 6 VR 326, Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 considered – Appeal Costs Act 1998 (Vic), s 4, s 38.

WORDS AND PHRASES – ‘person representing the Crown’.

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APPEARANCES:	Counsel	Solicitors
For the first and second respondents	Ms R Orr	Victorian Government Solicitor
No appearance required for the appellant or third respondent

WARREN CJ:

I have had the benefit of reading the reasons of Maxwell P and Nettle JA in draft form.

This Court, as an intermediate appellate court,[1] is bound by the decisions in Enever v The King,[2] State of Victoria v Horvath[3] and Jarratt v Commissioner of Police (NSW).[4] As set out in the reasons of Nettle JA, those cases are clear about the nature of the relationship between a police officer and the Crown. I do not consider that the Police Regulation Act 1958, the Appeal Costs Act 1998 or other legislation relevantly changes the nature of that relationship at this time.
[1]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135].
[2](1906) 3 CLR 969.
[3](2002) 6 VR 326.
[4](2005) 224 CLR 44.

Whether this area of law is apt for reform is a matter for the legislature. In this regard, I note in passing that, if enacted, the Police Regulation Amendment Bill 2008 will repeal s 123 of the Police Regulation Act and implement provisions such that the situation under consideration here would not arise.

In the circumstances, I agree with the reasons of Nettle JA in concluding that the first and second respondents were not representing the Crown within the meaning of s 38 of the Appeal Costs Act. I would, therefore, grant a certificate.

MAXWELL P:

On 29 February 2008, the Court allowed the appeal in this matter. The Court held that the first and second respondents, who are police officers (‘the officers’), owed duties of care respectively to the appellant and to her husband, now deceased. The appellant is suing the officers for damages for negligence, the alleged breach of duty being their failure to take reasonable steps to prevent her husband from committing suicide.

As respondents to a successful appeal, the officers have applied under s 4 of the Appeal Costs Act 1998 for an indemnity certificate in respect of their costs…

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: [2008] VSCA 211
Decision Date: 29 October 2008

CaseChat Overview and Summary

In the matter of Kirkland-Veenstra v Stuart (No 2), the respondent, a police officer, sought an indemnity certificate to recover costs incurred during the proceedings. The applicant, Kirkland-Veenstra, contested the application, arguing that the police officer was not a "person representing the Crown" as required by the Appeal Costs Act 1998 (Vic). The Victorian Court of Appeal was tasked with determining the eligibility of the police officer to be granted an indemnity certificate for costs.

The central legal issue before the court was whether an ordinary member of Victoria Police could be considered a "person representing the Crown" for the purposes of an indemnity certificate under the Appeal Costs Act 1998 (Vic). The court had to interpret the phrase "person representing the Crown" and determine whether the exercise of discretion by the court was personal or original. The court also needed to consider the applicability of precedents such as Enever v The King, State of Victoria v Horvath, and Jarratt v Commissioner of Police (NSW).

The court held that an ordinary member of Victoria Police could indeed be considered a "person representing the Crown" for the purposes of the Appeal Costs Act 1998 (Vic). The court found that the exercise of discretion in granting an indemnity certificate was an original discretion, not a personal one. The court referred to Enever v The King, State of Victoria v Horvath, and Jarratt v Commissioner of Police (NSW) to support its interpretation of the statutory language and the nature of the discretion. Consequently, the application for an indemnity certificate was granted.

The court's decision affirmed that an ordinary police officer qualified as a "person representing the Crown" under the statute, thereby allowing the police officer to seek an indemnity certificate for costs. The court's ruling was based on a careful interpretation of the statutory language and a review of relevant case law. The outcome ensured that the police officer could recover costs incurred during the proceedings.

Orders