Kostiuk v KH (a pseudonym) (No 2) - [2024] VSC 636

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 04448

FELIX KOSTIUK (a police officer)	Plaintiff
v
KH (a pseudonym)	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2024
DATE OF JUDGMENT:	18 October 2024
CASE MAY BE CITED AS:	Kostiuk v KH (a pseudonym) (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 636

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JUDICIAL REVIEW – Sex Offenders Register – Application for a SORA order struck out in the Magistrates’ Court – Magistrates’ Court order set aside and rehearing ordered – Appropriate costs order – Application for a certificate under the Appeal Costs Act 1998 – Whether SORA application a criminal proceeding – Application for indemnity certificate dismissed – Appeal Costs Act 1998 s 4 – Sex Offenders Registration Act 2004 ss 3, 6, 11 – Criminal Procedure Act 2009 s 3 – Civil Procedure Act 2010 ss 3, 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Millar	Victoria Police
For the First Defendant	Dr E Kelly	Stary Norton Halphen

HIS HONOUR:

On 23 September 2024, I delivered judgment in this proceeding deciding that the plaintiff (‘the informant’) had established various grounds of his amended originating motion. I set aside the Magistrates’ Court orders and ordered that the application be remitted to be reheard by another Magistrate.[1] In his application (‘the SORA application’), the informant had applied for an order that the first defendant, KH, comply with the reporting obligations under s 11 of the Sex Offenders Registration Act 2004 (‘the SORA’). KH had been found guilty of fourteen counts of entering a private place without lawful excuse in breach of s 9(1)(e) of the Summary Offences Act 1966 and one count of breaching a prescribed condition of parole in breach of s 78A of the Corrections Act 1986.
[1]Kostiuk v KH (a pseudonym) [2024] VSC 586.

I have now heard argument about costs and about KH’s application for a certificate under s 4 of the Appeal Costs Act 1998. I will first deal with the question of costs.

At the costs hearing, the informant submitted that the SORA application was a criminal proceeding whereas KH submitted it was a civil proceeding.

The informant submitted that KH did not need to participate in this proceeding and had added to the costs by doing so. Costs would not have built up, if KH had instead agreed to orders that the Magistrate had erred and that the matter be remitted. The informant’s position was that costs should follow the event and that KH should pay his costs.

KH advanced two submissions. His primary submission was that this application is a civil proceeding and that an indemnity certificate should be granted to him. I will consider that submission later. KH submitted that, if the proceeding was classified as civil, but a certificate nevertheless could not…

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: [2024] VSC 636
Decision Date: 18 October 2024

CaseChat Overview and Summary

Kostiuk, the applicant, sought judicial review of a decision made by the Magistrates’ Court to strike out his application for a Sex Offenders Register (SORA) order. The application was made by the respondent, identified as KH, a pseudonym. The nature of the dispute was whether the Magistrates’ Court had jurisdiction to hear the application for a SORA order, and if the costs awarded in the original proceedings were appropriate.

The legal issues before the court were whether the application for a SORA order was a criminal proceeding, as defined in the Appeal Costs Act 1998, and if the applicant was entitled to indemnity for the costs incurred in the judicial review proceedings. The court had to determine the applicability of the Civil Procedure Act 2010 and the Criminal Procedure Act 2009 in the context of the SORA application.

The court found that the application for a SORA order was not a criminal proceeding as defined in the Appeal Costs Act 1998. Therefore, the applicant was not entitled to a certificate under the Appeal Costs Act 1998. The court also found that the costs awarded in the original proceedings were appropriate, and therefore, the applicant was not entitled to indemnity for the costs incurred in the judicial review proceedings. The court set aside the Magistrates’ Court order and ordered a rehearing of the application for a SORA order. The court also made an appropriate costs order in the judicial review proceedings.

Orders