Police Member 1 (a pseudonym) & Anor (According To the Attached Schedule) v Antonios Sajih Mokbel & Anor (According To the Attached Schedule) and Nine Network Pty Ltd & Ors (According To the Attached Schedule)
[2025] VSCA 78
•15 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0153 |
| POLICE MEMBER 1 (A PSEUDONYM) & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Applicants |
| v | |
| ANTONIOS SAJIH MOKBEL & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
| AND | |
| NINE NETWORK PTY LTD & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Interveners |
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| JUDGES: | NIALL CJ, EMERTON P and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 15 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 78 |
| JUDGMENT APPEALED FROM: | Mokbel v DPP (Suppression) [2024] VSC 784 (Beach JA) |
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PRACTICE AND PROCEDURE – Appeal – Costs – Whether unsuccessful applicants for proceeding suppression order should pay media interests’ costs – Whether media interests parties to proceeding – Whether Court has power to order costs – Unnecessary to determine whether media interests parties to proceeding – Where media interests made minimal contributions – Where applicants’ submissions were not without merit – Application for costs refused.
Criminal Procedure Act 2009, s 409; Open Courts Act 2013, s 19(2).
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| Counsel | |||
| Applicants: | Ms RL Enbom KC with Mr C O’Beirne | ||
| First Respondent: | No written submissions | ||
| Second Respondent: | No written submissions | ||
| Interveners: | Mr MJ Hoyne | ||
Solicitors | |||
| Applicants: | Corrs Chambers Westgarth | ||
| First Respondent: | Sarah Tricarico Lawyers Pty Ltd | ||
| Second Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Interveners: | Thomson Geer | ||
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NIALL CJ
EMERTON P
J FORREST AJA:
On 13 March 2025, the Court dismissed an appeal from a decision of Beach JA in which his Honour refused an application by Police Member 1 and Police Member 2 (the ‘applicants’) for a suppression order to prevent their identification as the police officers the subject of adverse findings made by Fullerton J in the reference determination published on 25 November 2024 in respect of the second appeal of the first respondent, Antonios Mokbel (the ‘reference determination proceeding’).
News media organisations (the ‘media interests’) participated in the hearing before Beach JA and opposed the application for the suppression order. Those media interests were also heard on appeal, represented by counsel.
The media interests have filed submissions arguing that a costs order should now be made in their favour. They seek their costs of and incidental to the applicants’ appeal proceedings, including their ‘costs of seeking leave to intervene’. The applicants have filed submissions in reply opposing any costs order in favour of the media interests and submitting that no order as to costs should be made. The first respondent on appeal, who had the principal carriage of the argument opposing the grant of leave to appeal and the appeal, does not seek his costs.
The applicants submit that s 409 of the Criminal Procedure Act 2009 (‘CPA’) precludes an award of costs in these circumstances.
Section 409 relevantly provides that no costs are to be allowed to a party to an appeal under Parts 6.3 or 6.4 of the CPA or to a proceeding preliminary or incidental to an appeal of that kind. It is unclear whether the applicants’ application for a suppression order made in the reference determination proceeding was a proceeding within the meaning of s 409. We observe, however, that the provision in the Open Courts Act 2013 governing who may appear and be heard on an application for a proceeding suppression order distinguishes between a party to the proceeding concerned and a news media organisation.[1] This indicates that a news media organisation is not a party to the proceeding for the purposes of the Open Courts Act (2013).
[1]See s 19(2) of the Open Courts Act 2013.‘News media organisation’ and ‘party’ are defined, separately, in s 3 of the Act.
However, the applicants submit that, as the media interests themselves submitted to the Court, the media interests were parties to the suppression order proceeding. They chose to file an application for unconditional leave to intervene on all issues in the proceeding and were granted such leave, having been given all the privileges and liabilities of a party, including the right to appeal, tender evidence and participate fully in all aspects of the argument.
Like Beach JA below, we consider that it is unnecessary to decide whether s 409 applies in this case or whether the media interests are to be treated as parties to the suppression order proceeding. This is because we would not make an order that the applicants pay the costs of the media interests in any event.
The media interests made a minimal contribution to the application for leave to appeal and the appeal over and above the arguments advanced by the first respondent. They were permitted to make oral submissions only insofar as they wished to say something that had not already been said by the first respondent. The submissions made by the first respondent were comprehensive, persuasive and left very little more to be said. The same may be said about the written submissions filed by media interests vis-à-vis those relied upon by the first respondent.
Furthermore, we reject the submission that the arguments made by the applicants were ‘weak’ and involved only the protection of their reputational rights — not the administration of justice. Although the applicants were unsuccessful in obtaining a suppression order, their arguments were not without merit, they concerned the proper administration of justice as well as their reputational rights, and they were entitled to run them on appeal. Leave to do so was granted. Having regard to the context in which this occurred, and the fact that there is no general rule that costs follow the event on applications for suppression orders, we consider that costs should lie where they fall.
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SCHEDULE OF PARTIES
POLICE MEMBER 1 (a pseudonym) First Applicant POLICE MEMBER 2 (a pseudonym) Second Applicant and ANTONIOS SAJIH MOKBEL First Respondent DIRECTOR OF PUBLIC PROSECUTIONS Second Respondent and NINE NETWORK PTY LTD, SEVEN NETWORK (OPERATIONS) PTY LTD and HERALD AND WEEKLY TIMES PTY LTD Interveners
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