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Kymar Nominees Pty Ltd v Sinclair

Kymar Nominees Pty Ltd v Sinclair

Case [2006] VSC 488 18 December 2006

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4158 of 2006

KYMAR NOMINEES PTY LTD	Appellant
v
SUSANNE LINDSEY SINCLAIR (VICTORIAN WORKCOVER AUTHORITY INSPECTOR)	Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2006
DATE OF JUDGMENT:	18 December 2006
CASE MAY BE CITED AS:	Kymar Nominees Pty Ltd v Sinclair
MEDIUM NEUTRAL CITATION:	[2006] VSC 488

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COSTS – Summary criminal proceeding – Defendant remains silent during investigation – Charges laid – Defendant does not cross-examine and leads no evidence – Charges found proved on the basis of defendant’s state of knowledge – Proceeding re-opened at defendant’s instigation – Further evidence led about defendant’s state of knowledge – Charges dismissed - Statutory discretion to award costs – Refusal by Magistrate to make an order for costs in favour of the defendant – Appeal on questions of law – Whether discretion of Magistrate miscarried – Whether principles in Latoudis v Casey misunderstood or misapplied - Appeal dismissed - Magistrates’ Court Act 1989 ss 92, 131.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Lindeman	Sparke Helmore
For the Respondent	Dr J Beard	Victorian Workcover Authority

HIS HONOUR:

Overview

The appellant (“Kymar”) appeals under s 92 of the Magistrates’ Court Act 1989 (a provision limited to questions of law) from a decision of a Magistrate refusing to award Kymar costs after the dismissal of a prosecution against it for alleged breaches of the Occupational Health and Safety Act 1985. At the relevant time Kymar conducted a McDonald’s restaurant in Warragul. The respondent, Ms Sinclair, is the inspector of the Victorian WorkCover Authority (VWA) who, as informant, brought the prosecution against Kymar.

In essence, Kymar was charged with failing to provide and maintain a safe system of work for employees engaged in cleaning exhaust ducts on the roof of the restaurant and failing to provide necessary supervision. The prosecution was triggered by an accident in which a man (later held to be an employee of Kymar for relevant purposes), who had been assisting with the steam-cleaning of the exhaust ducts at night, fell from an unprotected part of the roof of the restaurant and was badly injured. At first the Magistrate found the charges proved, basing himself in part on certain evidence on which Kymar had not cross-examined and which indicated, in the Magistrate’s view, that the managing director (and sole controller) of Kymar was aware that the injured man was in the habit of leaving the protected part of the roof for purposes connected with cleaning the ducts. On a later date, but before convictions had been formally entered, Kymar caused further evidence to be adduced which counteracted the evidence on which the Magistrate had relied to find awareness. This led the Magistrate to dismiss the charges. However, he refused to order the informant to pay any part of the defendant’s costs. He based the refusal, at least in part, on omissions by Kymar, at various earlier stages, to indicate…

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 Kymar Nominees Pty Ltd v Sinclair

Details

AGLC: Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488
Case: [2006] VSC 488
Decision Date: 18 December 2006

CaseChat Overview and Summary

Kymar Nominees Pty Ltd, a company, brought an action against Sinclair in the Magistrates’ Court of Victoria, seeking costs incurred during a summary criminal proceeding. The dispute centred on whether Sinclair was entitled to reimbursement for costs after charges against him were dismissed following a re-opened proceeding. Initially, Sinclair faced charges that were subsequently found proved based on his state of knowledge. Sinclair did not cross-examine any witnesses or present any evidence during the original hearing. After the charges were found proved, Sinclair instigated a re-opening of the proceeding, during which additional evidence was presented that pertained to his state of knowledge. The charges were ultimately dismissed. Sinclair applied for an order that Kymar Nominees Pty Ltd pay his costs, an application which the magistrate refused.

The legal issues before the court involved the statutory discretion granted to the magistrate to award costs under the Magistrates’ Court Act 1989 and whether the magistrate had miscarried in their discretion. The court was also required to determine if the magistrate had misunderstood or misapplied the principles set out in Latoudis v Casey. The crux of the argument hinged on whether the dismissal of charges, following a re-opening of the proceeding, warranted a costs order in Sinclair’s favour. The appeal raised questions about the correctness of the magistrate’s decision not to award costs.

The court found that the magistrate’s discretion had not miscarried and that the principles from Latoudis v Casey had been correctly understood and applied. The court held that the statutory discretion to award costs was not mandatory, and in this instance, the magistrate had exercised their discretion appropriately in declining to make an order for costs in Sinclair’s favour. The appeal was dismissed, affirming the magistrate’s decision. The court emphasised that the decision to award costs was within the magistrate’s discretion and did not need to be exercised unless there were exceptional circumstances.

Orders