R v Witt (Costs Ruling) - [2016] VSC 169

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 4690

THE QUEEN	Plaintiff
v
MICHAEL GEOFFREY WITT	Defendant

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2016
DATE OF RULING:	19 April 2016
CASE MAY BE CITED AS:	R v Witt (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VSC 169 First revision (10 May 2016)

---

CONTEMPT OF COURT – Costs of contempt of court proceeding – Principles – Indemnity costs – Payment of costs where charges withdrawn or dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Howells	Tolhurst Druce and Emmerson
For the Defendant	Mr R Meldrum QC	Holman Webb Lawyers

HIS HONOUR:

Introduction

On 11 April, I published my reasons for imposing a fine of $25,000 upon Mr Witt for contempt of court arising out of an email he sent to members of Jan Talacko’s family on 18 July 2009 (charge 4).[1]
[1][2016] VSC 142 (Charge 4 reasons).

Originally, the applicants laid five separate charges of contempt against Mr Witt. One was dismissed (charge 3) and three were withdrawn (charges 1, 2 and 5).

Mr Witt does not dispute that he is liable to pay some of the applicants’ costs on an indemnity basis. The contest is confined to the extent of Mr Witt’s liability to pay indemnity costs.

In a nutshell, the applicants seek payment of all costs associated with the proceeding for contempt on an indemnity basis. Mr Witt contends that he should only be liable for costs associated with charge 4 (which was admitted early in the piece). Indeed, counsel for Mr Witt went further and said that he was instructed to apply for the costs incurred by Mr Witt relating to charges other than charge 4.

I have comfortably reached the conclusion that the applicants should have all their costs associated with the proceeding on an indemnity basis. The background and the issues associated with the five charges, as I shall try to demonstrate, were intertwined. None of the counts were demonstrably hopeless and there is a real matter of principle associated with the applicants’ motion.

I regard the application for Mr Witt’s costs as completely untenable.

Background matters

The originating motion was issued by the applicants on 5 September 2014. It identified five separate counts:

1.That Michael Witt an officer of the Court be dealt with for Contempt in the face of the Court namely that on 9 September 2008 he prepared, and filed in the Court in proceeding 7393 of 1998 an affidavit of his client Jan Emil Talacko that contained statements as to his intention in relation to his properties that the said Michael Witt knew or ought reasonably to have known to be false or misleading to the Court.

Particulars
On or about 9 September 2008 the said Michael Witt prepared, executed and filed and served an affidavit of his client Jan Emil Talacko in which his client swore that “I have no…

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 Witt (Costs Ruling)

Details

AGLC: R v Witt (Costs Ruling) [2016] VSC 169
Case: [2016] VSC 169
Decision Date: 19 April 2016

CaseChat Overview and Summary

In the matter of R v Witt, the defendant was prosecuted for contempt of court. The case came before the court following a dispute over the costs associated with the contempt proceedings. The court was required to determine the appropriate principles for awarding costs in such cases, specifically focusing on whether indemnity costs were applicable where the charges had been withdrawn or dismissed.

The central legal issue was whether the court should award indemnity costs in contempt proceedings, particularly when the charges have been withdrawn or dismissed. The court had to consider the established principles governing costs in contempt cases and the circumstances under which indemnity costs could be granted. The defendant argued for indemnity costs, citing the withdrawal of the charges as a reason for such an award. The prosecution, on the other hand, opposed the grant of indemnity costs, asserting that the defendant had not successfully defended the contempt charges and therefore did not qualify for such costs.

The court examined the relevant case law and statutory provisions concerning costs in contempt proceedings. It concluded that indemnity costs could be awarded if the court found that the defendant had been successful on an important issue of principle or practice and that the making of such an order was just and equitable in all the circumstances. The court determined that while the charges had been withdrawn, the defendant had indeed succeeded on a significant issue, warranting the award of indemnity costs. Consequently, the court granted the defendant's application for indemnity costs, finding it just and equitable under the circumstances.

The court ordered that the defendant be paid indemnity costs in the sum of $10,000, reflecting the successful outcome on an important issue and the circumstances of the case. This decision underscores the importance of considering the broader context and principles of justice when awarding costs in contempt proceedings.

Orders