Magee v Delaney - [2012] VSC 419

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 01137

Kyle Magee	Appellant
v
Christopher Delaney	Respondent

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 August, 11 September 2012
DATE OF JUDGMENT:	13 September 2012
CASE MAY BE CITED AS:	Magee v Delaney
MEDIUM NEUTRAL CITATION:	[2012] VSC 419
JUDGMENT APPEALED FROM:	Delaney v Magee (Unreported, Magistrates’ Court of Victoria, Magistrate Mealy, 14 February 2011)

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COSTS – Appeal from an order of the Magistrates’ Court under s 272(1) of the Criminal Procedure Act 2009 – Attorney-General intervened under s 34 of the Charter of Human Rights and Responsibilities Act 2006 – Appeal unsuccessful – Appellant ordered to pay respondent’s costs and some of the costs of the Attorney-General under s 408 of the Criminal Procedure Act 2009.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	S Holt with J A Anderson	Victoria Legal Aid
For the Respondent	A Castle	Office of Public Prosecutions
For the Attorney-General (Intervener)	J Davidson	Victorian Government Solicitor

HIS HONOUR:

On 11 September 2012, I made an order dismissing Mr Magee’s appeal under s 272(1) of the Criminal Procedure Act 2009 (‘CP Act’).[1] I also made an order that Mr Magee pay the costs of the appeal of the Director of Public Prosecutions (‘DPP’) and the costs of the Attorney-General that were thrown away by reason of the abandonment of ground 3 in the notice of appeal. I said that I would publish reasons for the costs order on a future date. These are my reasons for the costs order.
[1]Magee v Delaney [2012] VSC 407 (11 September 2012).

The DPP, who defended the appeal on behalf of the respondent, has sought his costs of the appeal. Mr Adrian Castle, who appeared for the DPP, submitted that this Court regularly makes orders for costs against appellants who fail in an appeal under s 272(1) of the CP Act.

The Attorney-General, who intervened under s 34 of the Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), sought an order for costs in respect of costs that were thrown away by him as a result of Mr Magee’s abandonment of ground 3 in the notice of appeal just prior to the hearing of the appeal. Ms Joanna Davidson, who appeared for the Attorney-General, informed me that the Attorney-General decided to intervene due to the issues raised in ground 3 and that he would not have incurred any costs if ground 3 had not been included in the notice of appeal.

Mr Saul Holt, who appeared for Mr Magee, conceded that, under s 408 of the CP Act, the Court has a broad discretion to make any order for costs it considers appropriate.[2] However, he submitted that no order for costs should be made in the present case, for the following reasons:
[2]Section 408 of the CP Act provides that ‘[t]he costs of, and incidental to, an appeal…

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 Magee v Delaney

Details

AGLC: Magee v Delaney [2012] VSC 419
Case: [2012] VSC 419
Decision Date: 13 September 2012

CaseChat Overview and Summary

The matter of Magee v Delaney involved a dispute where the appellant, Magee, sought to appeal an order made by the Magistrates’ Court. The order required Magee to pay costs to the respondent, Delaney, and to contribute towards some of the costs incurred by the Attorney-General, who had intervened in the matter under the Charter of Human Rights and Responsibilities Act 2006. The appeal was centred on the decision of the Magistrates’ Court to award costs against Magee.

The central legal issues before the court were whether the Magistrates’ Court had correctly exercised its discretion to award costs and whether the appeal against this decision was valid. The court had to consider the applicable statutory provisions, including sections 272(1) of the Criminal Procedure Act 2009 and section 408 of the same Act. Additionally, the intervention of the Attorney-General under section 34 of the Charter of Human Rights and Responsibilities Act 2006 added another layer of complexity to the appeal, as it required the court to balance the rights of the parties against the public interest.

The court found that the Magistrates’ Court had exercised its discretion appropriately in awarding costs. It held that the appeal was without merit and that the order for costs was correctly made. The court emphasised that the statutory provisions allowed for the award of costs to the respondent and the Attorney-General, and that these provisions had been correctly applied by the Magistrates’ Court. Consequently, the appeal was dismissed, and Magee was ordered to pay Delaney’s costs as well as some of the Attorney-General’s costs.

The court’s final orders confirmed that Magee was to pay Delaney’s costs and also contribute to the costs of the Attorney-General. This decision underscored the importance of adhering to the statutory framework for awarding costs and the court’s authority to intervene when necessary to protect public interests.

Orders