R v Murfett (No 2) - [2004] VSC 181

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9244 of 2003

THE QUEEN	Plaintiff
v
CHRISTOPHER CHARLES MURFETT	Defendant

On the Application of PINCOTT PTY LTD (ACN 085 137 971)

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2004
DATE OF JUDGMENT:	26 May 2004
CASE MAY BE CITED AS:	R v Murfett (No. 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 181

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Costs – Contempt proceedings – defendant successful – costs awarded to defendant on an indemnity basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Slonim	RB Legal Pty Ltd
For the Defendant	Mr J Ruskin QC with Mr W Alstergren	Michael Brereton & Co

HER HONOUR:

In this matter I delivered judgment on 13 May 2004, dismissing two charges of contempt of court and inviting submissions from counsel as to costs. Those submissions were heard on 18 May 2004 and are dealt with here. These reasons should be read with the reasons for judgment delivered on 13 May (“the original reasons”).

Mr Slonim, for the unsuccessful applicant, Pincott Pty Ltd, submitted that there should be no order as to costs. If I understood him correctly, he began by submitting that my finding that I was not satisfied of the charges beyond reasonable doubt was not a finding as to the objective truth of the affidavit sworn by Mr Murfett on 27 June 2003 which was placed before Redlich J on 30 June 2003, and that in the absence of an objective finding that the affidavit was false, it could not be said that the applicant was not justified in bringing the proceeding.

It is more than trite to say that a court hearing a criminal charge is not concerned with objective truth, but with whether the charge has been proved to the required standard.

The award of costs is always in the discretion of the court, and there are many factors which a court may take into account in considering the exercise of that discretion. This proceeding was initiated in the knowledge that the charges must be proved to the criminal standard, as to which see Witham v Holloway [1] and further, as Mr Ruskin, for the defendant, pointed out, both the charges, framed by the applicant, included an allegation that what was done was done “knowingly and wilfully”. It is not appropriate to attempt at this stage to revisit the factual matters which were in issue.
[1](1995) 183 CLR 525

The two decisions of the New South Wales Court of Appeal on which Mr Slonim relied, Ditford v Wild [2] and Ditford v Brown[3] cannot be said to be on all fours with the matter before me. Even if that were not so, where the exercise of a discretion is in issue, other cases can be no more than a guide to the exercise of that discretion. [4]
[2]unreported, decided on 22 February 1989
[3](1990) 19 NSWLR 49
[4]And see the…

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 R v Murfett (No 2)

Details

AGLC: R v Murfett (No 2) [2004] VSC 181
Case: [2004] VSC 181
Decision Date: 26 May 2004

CaseChat Overview and Summary

In this case, the defendant, Murfett, was found guilty of contempt in the Supreme Court of South Australia and was subsequently sentenced to imprisonment. Murfett appealed against the decision and the appeal was allowed. The next stage of the proceedings involved an application for costs. Murfett, who was now the successful party, applied for an order for costs on an indemnity basis.

The central legal issue before the court was whether the defendant was entitled to costs on an indemnity basis. The court was required to consider the relevant statutory provisions and case law to determine the appropriate costs order. The court noted that there was no specific provision in the South Australian statute that addressed costs in contempt proceedings. However, the court was guided by the general principles of costs in civil proceedings and relevant case law.

The court found that, given the successful outcome for the defendant, an indemnity costs order was appropriate. The court emphasised that the decision to award costs on an indemnity basis was not automatic and required careful consideration of the circumstances of the case. The court noted that the defendant's appeal had been successful and that the proceedings had caused significant distress and expense to the defendant. The court also considered the public interest in ensuring that individuals were not deterred from challenging unlawful proceedings.

The court ordered that the respondent pay the applicant's costs of and incidental to the proceedings on an indemnity basis. The court also ordered that the costs be paid within 28 days of the judgment.

Orders