The Queen v Gaudry (Costs) - [2021] VSC 160

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 03613

THE QUEEN (ON THE APPLICATION OF WAYNE ANDREW LESLIE CREWES, EILEEN FRANCES CREWES AND TOMI TREGENT-CREWES)	Applicants
v
ANTON JEROME FREDERICK GAUDRY	Respondent

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	6 April 2021
CASE MAY BE CITED AS:	The Queen v Gaudry (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 160

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COSTS – Contempt of court – Applicants unsuccessful in proving charges of sub judice contempt – Whether applicants should pay respondent’s costs – Where conduct did not constitute contempt but was nonetheless ill-considered, imprudent and regrettable – Where form of apology proffered before trial – Discretionary considerations.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the applicants	Mr A Herskope with Mr S Freire	Kalus Kenny Intelex
For the respondent	Mr A Woods with Mr M P Allen	Burch & Co Lawyers Pty Ltd

HIS HONOUR:

On 12 March 2021, I dismissed an application that the respondent be adjudged guilty of contempt. I concluded:

Unaided by submissions and absent any knowledge of dealings out of court between the parties, I might conclude that there be no order as to costs. I will determine the question of costs on the papers, unless a contrary view, put in the submission, is persuasive.[1]

[1]The Queen v Gaudry [2021] VSC 113, [88] (‘Reasons’).

I have now received the party’s submissions and will rule on the question of costs on the papers, there being no objection raised to that course.

The applicants submitted that it was appropriate that there be no order as to costs.

The respondent submitted that the applicants should, jointly and severally, pay his costs of and incidental to the proceeding up to and including 25 November 2020 on a standard basis, and from 26 November 2020 on an indemnity basis; alternatively on a standard basis. He contended that costs should follow the event, as there was no sound reason to depart from that approach evident from my findings,[2] and indemnity costs should follow on a Calderbank letter sent by the respondent on that date.
[2]Donald Campbell & Co Pty Ltd v Pollak [1927] AC 732, 811; Oshlack v Richmond River Council (1998) 193 CLR 72, 120–3 [134] (‘Oshlack’).

As is clear from my reasons for dismissing the application, the charges of contempt —a side dispute arising out of extant commercial litigation in this court —was sparked by an error of judgment that the respondent conceded was ill‑considered, imprudent and regrettable. That concession was appropriate.

While I was not persuaded to the requisite standard that the respondent ‘crossed the line’, I concluded that he stopped ‘just short’ of it.[3] For the purpose of exercising my discretion in respect of costs, I will clarify that position. The point at which the respondent stopped just short of having committed contempt was on the criminal standard of…

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 The Queen v Gaudry (Costs)

Details

AGLC: The Queen v Gaudry (Costs) [2021] VSC 160
Case: [2021] VSC 160
Decision Date: 6 April 2021

CaseChat Overview and Summary

The Queen, as represented by the Director of Public Prosecutions, was the plaintiff, and Gaudry the defendant, in a case before the High Court of Australia. The dispute concerned whether the applicants should be held liable for the costs of the proceedings against Gaudry. The proceedings arose from allegations that the applicants had committed contempt of court by making comments that were sub judice. The applicants unsuccessfully sought to prove these charges, and the court was required to determine whether they should be held responsible for the costs incurred by Gaudry in defending the proceedings.

The primary legal issue before the court was whether the applicants should be ordered to pay Gaudry's costs despite their unsuccessful attempts to prove the charges of contempt. The applicants argued that their conduct, although ill-considered and imprudent, did not constitute contempt and therefore they should not be held liable for costs. Gaudry, on the other hand, contended that the applicants' conduct was so egregious that it warranted an order for costs. The court needed to consider the discretionary factors relevant to an order for costs, including the applicants' conduct and the form of apology they had made before the trial.

The High Court found that although the applicants' conduct was ill-considered and imprudent, it did not amount to contempt of court. However, the court held that the applicants' conduct was still regrettable and warranted an order for costs. The court considered the form of apology the applicants had made before the trial, as well as other discretionary factors, in determining the appropriate amount of costs to be awarded. The court ultimately decided that the applicants should pay Gaudry's costs, but the amount was to be determined by the lower court. The court's decision emphasised the importance of considering the conduct of the parties and the form of apology in determining whether to make an order for costs.

Orders