Taddis Gebrehiwot (Who Sues By His Litigation Guardian Gebree Mengesha) v State of Victoria [No 2]
[2020] VSCA 333
•21 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0102
| TADDIS GEBREHIWOT (WHO SUES BY HIS LITIGATION GUARDIAN GEBREE MENGESHA) | Appellant |
| v | |
| STATE OF VICTORIA [No 2] | Respondent |
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| JUDGES: | TATE, KAYE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 21 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 333 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1229 (Judge KL Bourke) |
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COSTS – Appeal allowed – Re-trial ordered – Whether costs should follow the event – Trial judge failed to include direction in jury charge on defence of lawful justification under s 462A Crimes Act 1958 – No exception taken to charge or request for direction made to trial judge – Whether appellant ought be awarded costs of appeal in full or in part – Costs of proceeding below.
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WRITTEN SUBMISSIONS: | Counsel | Solicitors |
| For the Appellant | Mr A Clements QC with Ms S Gold | Robinson Gill |
| For the Respondent | Mr J Ruskin QC with Mr M Hooper | Russell Kennedy |
TATE JA
KAYE JA
EMERTON JA:
On 8 December 2020 this Court delivered its principal judgment in this matter.[1] This judgment assumes a familiarity with the principal judgment.
[1]Gebrehiwot v Victoria [2020] VSCA 315 (‘Principal judgment’).
This Court granted leave to appeal, allowed the appeal, set aside the orders made by Judge KL Bourke on 21 August 2019, and, in paragraph 4 of this Court’s orders, remitted the matter to the County Court for a re-trial.
The appellant now seeks the following orders in relation to costs:
(1) The respondent pay the appellant’s costs of the application for leave to appeal and the appeal;
(2) The costs of the proceeding before her Honour Judge KL Bourke abide the result of the further hearing of the proceeding to be conducted pursuant to paragraph 4 of the orders made by the Court of Appeal on 8 December 2020.
With respect to the costs of the application for leave to appeal, and the appeal (collectively ‘appeal costs’), the appellant submits that, while an award of costs is in the discretion of the court,[2] the settled rule is that costs follow the event, including in respect of a successful appeal.[3] The appellant submits that the settled rule should apply here and the respondent ought be ordered to pay the appellant’s appeal costs.
[2]Supreme Court Act 1986 s 24; Supreme Court (General Civil Procedure) Rules 2015 r 64.38(1).
[3]Gann v Hosny [No 2] [2017] VSCA 318, [14].
The respondent submits that the Court should order that there be no order as to the appeal costs or, in the alternative, order that the respondent pay one third of the appellant’s appeal costs.
The respondent makes its submission on two bases.
The first basis is that the appellant has enjoyed only limited success on the appeal. Ground 2 was upheld, namely that the judge failed to adequately direct the jury in relation to the respondent’s defence of lawful justification, including by giving no direction in relation to the meaning of s 462A of the Crimes Act 1958. Ground 5 was also upheld, namely, that the jury verdict in accepting the respondent’s defence of lawful justification with respect to the ‘takedown’ should be set aside. The respondent submits that Ground 5 was upheld only as a consequence of Ground 2 being upheld and not independently, and not as Ground 5 had been originally framed. The respondent emphasises that although leave to appeal was granted in respect of Ground 1, the ground based on the Charter, this ground was ultimately rejected. Leave to appeal was refused with respect to Ground 3 (the alleged error based on Browne v Dunn[4]) and Ground 4 (the unreasonableness of the verdict of ‘No’ to the question of whether the respondent pushed the appellant without lawful justification). Accordingly, the respondent submits, ‘having cast the net wide, the appellant ultimately succeeded on only one of his arguments’.[5]
[4](1893) 6 R 67.
[5]The respondent’s written submissions on costs [9].
We reject the first basis upon which the respondent puts its submission.[6] We do not consider that it is accurate to describe the appellant as successful on only one of his arguments. As the oral argument developed in this Court, the inter-connection between Grounds 2 and 5 became apparent. The issue of whether the judge’s failure to give the jury a direction on s 462A had a material impact on the jury’s verdict in response to the question of whether the ‘takedown’ was lawfully justified, ultimately became central to the appellant’s submissions. This combined issue became the principal focus of the appeal and the respondent’s submissions were comprehensively rejected by this Court.
[6]We note that the respondent relies upon Mandie v Memart Nominees Pty Ltd [No 2] [2020] VSCA 320 but that was a very different case where this Court refused to award all of the declaratory relief sought on the appeal. The respondent also relies upon Paragreen v Lim Group Holdings Pty Ltd [No 2] [2020] VSCA 97 [5] but there the Court, while acknowledging that it may be appropriate for the successful party to be awarded only a proportion of its costs, on a pragmatic basis, where it has enjoyed mixed success on appeal, ultimately held that costs ought follow the event because the respondent’s submissions with respect to the principal focus of the appeal had been (as here) comprehensively rejected.
It must also be remembered that, in the course of examining Ground 1, this Court was persuaded by the appellant that the judge had erred in failing to appreciate the relevance of the Charter to any direction that ought to have been given on the meaning and scope of s 462A.[7] This was a substantive issue that involved considerable argument addressed in both the written and oral submissions in this Court and an examination of the Charter ruling. Moreover, in respect of Ground 3, this Court was persuaded by the appellant that the judge was in error in respect of the remarks she made to the jury.[8] Ultimately, however, the ‘sting’ of the remarks being rather minor, leave was refused.
[7]Principal judgment [142].
[8]Ibid [147].
The second basis upon which the respondent submits that the parties ought bear their own costs, or the appellant ought only be awarded one-third of his appeal costs, is that, in respect of Ground 2, the appellant’s case was founded on a criticism that was not levelled at trial. This basis is also relied upon as further reinforcing the first basis. The respondent submits that the appellant should not be awarded his appeal costs because of the failure of his counsel to seek a direction from the primary judge to the jury on the meaning and scope of s 462A when it became apparent that the judge had failed to do so. In upholding Ground 2, this Court said:
It is significant that counsel for Gebrehiwot, at trial, did not raise any exception to the judge’s charge in this respect. This is regrettable. Indeed, when senior counsel for the State raised the matter with the judge, this was the occasion on which counsel for Gebrehiwot might have been expected to seek an appropriate direction from the judge as to the effect of s 462A. It might be inferred that at that point, counsel refrained from making that exception for tactical forensic reasons. Nevertheless, in light of the centrality of s 462A, and, in particular, the issue relating to the proportionality of the force used by SC Miller in effecting the arrest, we do not consider that the failure of counsel for Gebrehiwot to have taken such exception to be fatal to the success of Ground 2. The critical issue is whether the failure of the judge to give the jury any appropriate direction on s 462A caused a substantial wrong or miscarriage of justice. The answer to that issue depends on an analysis of the strength of Gebrehiwot’s case at trial, considered in the light of the onus that fell on SC Miller to justify the force he used.[9]
[9]Ibid [122] (citations omitted).
The respondent submits that the failure of his trial counsel to seek an appropriate direction when the opportunity arose should deprive the appellant of the whole, or the bulk of, his appeal costs. The exchange between the primary judge and senior counsel for the respondent[10] did not relieve the appellant’s counsel of her duty to take an exception. It observes that there is much force in this Court’s observation that it might be inferred that counsel for the appellant refrained from making the exception for tactical reasons.
[10]Ibid [82].
It may be accepted that a successful party can be deprived of costs where an appeal succeeds on a point not taken below.[11] We agree with the respondent that the appellant’s trial counsel was not relieved of her obligation to take an exception and that the failure of the judge to give an appropriate direction to the jury was in no way the fault of the respondent.
[11]Armstrong v Boulton [1990] VR 215, 223.
However, in our view, it would be unfair to deny the appellant his costs of the successful appeal because of this particular failure by his trial counsel, which occurred in the course of a trial occupying 11 sitting days. We have already emphasised that the failure of counsel to take the exception was regrettable. We do not consider, however, that, in this instance, counsel’s conduct ought deny the appellant his appeal costs. Ultimately the error was made by the judge in not giving a direction on the central issue in the trial. The appellant was successful in demonstrating the judge’s error and, as mentioned, the respondent’s submissions were comprehensively rejected.
For these reasons, we do not consider that this is a case that ought attract an ‘issues-based’ costs order or an order that awards the appellant only a minor proportion of his appeal costs.
With respect to the costs of the trial before Judge KL Bourke, the ordinary rule, where a new trial is ordered, is that the costs of the first trial abide the result of the new trial.[12] The respondent accepts this course, as one of the available options it urges the Court to adopt, save for the costs of and incidental to the summons filed 24 July 2019 (‘the summons’) which it urges ought be paid by the appellant. As an alternative, it seeks that the costs of the proceeding before Judge KL Bourke be reserved to the County Court.
[12]Baulch v Lyndoch Warrambool Inc [No 2] [2010] VSCA 53, [6].
The summons filed 24 July 2019 by the respondent (as defendant) sought, amongst other things, the striking out of [12(c)] of the FASC. Paragraph 12(c) of the FASC claimed exemplary damages on the basis of a contravention of s 38 of the Charter. There was extensive oral argument before the primary judge in respect of the summons on 30 and 31 July 2019. In the Charter ruling, the judge rejected the proposition that a breach of the Charter could sound in damages and made the orders sought in the summons. This Court upheld the Charter ruling with respect to the question of damages.[13] However, it did not uphold the Charter ruling in so far as the judge concluded that all Charter issues were irrelevant to the question of liability for the batteries and false imprisonment.[14]
[13]Principal judgment [143].
[14]Ibid [142].
We consider, in the circumstances, that the fairest disposition is to order that all question of costs in the County Court to date be reserved for the judge hearing the re-trial.
We will make the following orders:
(1) The respondent pay the appellant’s costs of the application for leave to appeal and the appeal;
(2) The costs of the proceeding before Judge K L Bourke costs be reserved for the judge hearing the re-trial in the County Court.
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