R v Cerantonio (Ruling No 17) - [2018] VSC 106

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA

Accused
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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 February 2018
DATE OF RULING:	7 March 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling No 17)
MEDIUM NEUTRAL CITATION:	[2018] VSC 106

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CRIMINAL LAW – Costs – Court refused accused’s applications for “take-down” order directed at local media organisations to remove certain highly prejudicial articles about him from their websites and for declaration concerning effect of existing suppression order – Application by successful group of respondents for costs against accused – Whether costs should follow the event – Whether take-down application in nature of application for mandatory injunction – Whether take-down application foredoomed to fail – Whether relevant that take-down application concerned something other than purely private interest – Whether application for declaration provoked by the Court – Application for costs refused – R v Cerantonio & Ors (Ruling 14) [2018] VSC 84R; Supreme Court Act 1986 (Vic), s 24; News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248.

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Appearances:	Counsel	Solicitors
For the Crown	Mr R Maidment QC with Ms R Sharp and Ms A Peek	Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio	Mr M Cahill SC with Dr G Boas	Stary Norton Halphen Criminal Lawyers
For Paul Dacre	Mr J McMahon SC with Ms G Morgan	Slades & Parsons Criminal Lawyers
For Antonino Granata	Mr C Farrington with Mr C Terry	Patrick W Dwyer Barristers & Solicitors
For Shayden Thorne	Mr S Moglia with Ms G Connelly	Doogue O’Brien George Barristers & Solicitors
For Kadir Kaya	Mr D Hallowes SC with Ms F Todd	Galbally & O’Bryan Defence Lawyers
For Murat Kaya	Mr D Dann QC with Mr M Goldberg	James Dowlsey & Associates Criminal Law
For: Fairfax Media Limited; and Fairfax Digital Australia & New Zealand Pty Ltd	Mr E Nekvapil with Mr P Considine	Minter Ellison Lawyers
For: The Herald & Weekly Times Pty Ltd; Nationwide News Pty Ltd; Daily Telegraph Pty Ltd; Adelaide Advertiser Pty Ltd; News Life Media Pty Ltd; Queensland Newspapers; The Australian Broadcasting Corporation; and Special Broadcasting Service	Mr T Otter	M&K Lawyers Group Pty Ltd

HIS HONOUR:

Introduction

On 28 February 2018, I refused applications by the accused Shayden Jamil Thorne for a “take-down” order directing Australian media organisations to remove from their websites articles containing certain highly prejudicial information about him. I also refused an alternative application for a declaration that a suppression order I made on 14 June 2017 already includes a prohibition on maintaining access on Australian media websites to articles containing the same information. I gave written reasons for those…

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: [2018] VSC 106
Decision Date: 7 March 2018

CaseChat Overview and Summary

The matter before the court involved the accused, Cerantonio, who had previously applied for a "take-down" order against local media organisations and a declaration concerning the effect of a suppression order. These applications were unsuccessful. The respondents, who were successful in their opposition to the accused’s applications, sought costs from the accused. The central issue was whether costs should be awarded against the accused and, if so, whether the nature of the take-down application warranted such an order.

The court examined whether the take-down application was akin to an application for a mandatory injunction, which generally does not attract costs. It also considered whether the take-down application was inherently doomed to fail and whether the application for a declaration was provoked by the court. The court found that the take-down application, although concerning something other than purely private interest, was not in the nature of an application for a mandatory injunction and was not necessarily foredoomed to fail. Furthermore, the application for a declaration was not provoked by the court.

Based on the analysis, the court ruled that costs should follow the event. The take-down application was not a futile exercise and, while it was not a purely private interest matter, it did not meet the criteria to attract costs as an application for a mandatory injunction. The application for a declaration was also not provoked by the court. Consequently, the application for costs by the respondents was refused.

No specific orders were made in this ruling, but the refusal of the costs application meant that the respondents were not entitled to recover costs from the accused.

Orders