Tsahrelias v Hanna & LH Holding

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0161; S ECR 2023 0102

Between:
GEORGIA TSAHRELIAS	Applicant
-and-
LAITH HANNA	First Respondent
-and-
L H HOLDING MANAGEMENT PTY LTD (ACN 118 908 660)	Second Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2024
DATE OF ORDERS & SUMMARY REASONS:	1 July 2024
DATE OF PUBLICATION OF FULL REASONS:	17 July 2024
CASE MAY BE CITED AS:	Tsahrelias v Hanna & LH Holding
MEDIUM NEUTRAL CITATION:	[2024] VSC 420

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COMPENSATION ORDER — Application to lift stay effected by s 311(2) of the Criminal Procedure Act 2009 (Vic) on compensation order made under s 85B of Sentencing Act 1991 (Vic) — Slip rule — Where, when related sentences appealed by DPP, stay of compensation order automatically extended until appeal determined — Whether, after sentence appeals instituted, Supreme Court has jurisdiction under s 311(2) to direct lifting of stay of compensation order — Whether stay should be lifted — Whether order lifting stay should be nunc pro tunc or prospective — Whether, alternatively, compensation order may be amended under slip rule by (a) adding word “forthwith”, (b) specifying period up to which costs not payable and (c) specifying that penalty interest applies from date order made — Not open, under slip rule or otherwise, to amend compensation order by adding word “forthwith” or as to costs or penalty interest — Pursuant to s 311(2), Court ordered, prospectively, that stay no longer applies to compensation order — Criminal Procedure Act 2009 (Vic), ss 3, 287‑290, 309, 311 & 315; Sentencing Act 1991 (Vic), ss 52, 53, 85B & 85K; Supreme Court Act 1986 (Vic), ss 10(3) & 101(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.07; Appeal Costs Act 1998 (Vic), ss 15 & 35A(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr P Duggan	Carbone Lawyers
For the respondents	Ms M Isobel	Ward & Co Legal Consultants

HIS HONOUR:

Overview

This application raises the following questions: Where this Court imposes a sentence for an offence and, at the same time, makes a related compensation order pursuant to s 85B of the Sentencing Act 1991 (Vic) (“the Sentencing Act”), and where an appeal is thereafter instituted by the Director of Public Prosecutions (“DPP”) against the sentence, but the appeal is not yet determined by the Court of Appeal, does this Court have jurisdiction, pursuant to s 311(2) of the Criminal Procedure Act 2009 (Vic) (“the CPA”), to make an order lifting the stay of the compensation order effected by operation of the same provision? The answer is yes.

A second question is whether, in the circumstances of this case, the stay should be lifted. The answer is yes.

A third question is whether the lifting of the stay should be ordered nunc pro tunc (i.e. from the date the compensation order was made, which was 19 February 2024) or whether it should have only prospective effect. In this case, the answer is the latter.

A fourth pair of questions (which, as I understood it, were put in the alternative to the first three) is whether, in the circumstances of this case, the slip rule applies to allow the amending of the compensation order so that it is directed to be paid “forthwith” and so that that amendment applies nunc pro tunc. In each instance, the answer is no.

Finally, a fifth pair of questions related to the fourth is whether, in the circumstances of this case, the slip rule applies to allow the amending of the compensation order, first, so that the order’s specification that there is no order as to costs is added to by including the words “up to and including 19 February 2024”, and, second, so that the following words are also added: “interest will accrue pursuant to s 101(1) of the Supreme Court Act on any balance outstanding on this amount after 19 February 2024”. Again, the answer to each question is no.

This application was heard on 7 June 2024, after which I reserved my decision. Consistently with my answers to the foregoing questions, on 1 July 2024, I made an order, pursuant to s 311(2) of the CPA, to the effect that, from that day, there is no longer any stay in respect of the compensation order made on 19 February 2024.

At that time, I gave a brief summary of reasons for my decision, and indicated that I would publish detailed reasons at a later date.[1] These are those detailed reasons.
[1]I also set a timetable for the filing of written submissions on the costs of this application, should there be any such application. See below.

Background

The application came about in the following circumstances.

On 19 February 2024, following a plea of guilty by LH Holding Management Pty Ltd (“LH Holding”) to the workplace manslaughter of Michael Tsahrelias,[2] I sentenced the company to a fine of $1,300,000, with conviction. Further, upon his plea of guilty, I sentenced Laith Hanna, with conviction, to a two‑year community correction order (“CCO”), with conditions, for being an officer (viz, the sole director) of LH Holding when the company had committed workplace manslaughter attributable to the officer’s failure to take reasonable care.[3]
[2]Contrary to s 39G(1) of the Occupational Health and Safety Act 2004 (Vic).
[3]Contrary to s 144(1)(a) of the Occupational Health and Safety Act 2004 (Vic).

The same day, pursuant to s 85B of the Sentencing Act, by agreement between the relevant parties, I ordered that LH Holding and Mr Hanna pay Michael Tsahrelias’s sister Georgia Tsahrelias $120,000 in compensation, and dismissed claims for compensation by his parents. The compensation order was in the following terms:

1.The application for compensation by Georgia Tsahrelias is granted; LH Holding Management Pty Ltd (ACN 118 908 660) and Mr Hanna are ordered to pay Georgia Tsahrelias one‑hundred‑and‑twenty‑thousand dollars ($120,000) in compensation (liability for which is joint and several); and there is no order as to costs.

When imposing the sentences and making the compensation order, I delivered an oral summary of my reasons, and then published full written reasons on 6 March 2024.[4]
[4]For the full reasons, see R v LH Holding & Hanna [2024] VSC 90.

On 18 March 2024, by filing notices of appeal of the same date, pursuant to ss 287 and 288 of the CPA, the DPP commenced appeals to the Court of Appeal against the sentences imposed on LH Holding and Mr Hanna, each on the ground of manifest inadequacy. Those appeals are yet to be heard, and had not been listed at the time of the hearing of the current application.

It is plain — from the notices of appeal and from the written cases[5] filed in support of them — that the DPP’s appeals are against, respectively, the amount of the fine imposed on LH Holding and the duration of the CCO and the number of community work hours imposed on Mr Hanna. The DPP’s appeals are not at all directed at the compensation order.
[5]See the DPP’s written case (dated 18 March 2024) in DPP v Hanna at, e.g., [50] (“A much longer CCO with a much higher number of community work hours — or, a CCO and a fine — needed to be imposed for the sentence to fall within the permissible range”); and see the DPP’s written case (dated 18 March 2024) in DPP v LH Holding at, e.g., [53] (“In all the circumstances, the sentence is manifestly inadequate”).

No appeal has been launched either by Ms Tsahrelias (the applicant) or by Mr Hanna or LH Holding (the respondents) against the compensation order either.

Nor has either Mr Hanna or LH Holding sought to appeal the finding of guilt or conviction of the offence to which each pleaded guilty and which gave the Court jurisdiction to make the compensation order.

Despite formal demands for payment by Ms Tsahrelias, other than an amount of $5,000 paid by Mr Hanna on 9 May 2024, neither Mr Hanna nor LH Holding has made any payment in satisfaction of the compensation order.

On 28 March 2024, Ms Tsahrelias caused a statutory demand to be filed and served on LH Holding, who in turn filed and served an application to set side that statutory demand. Initially, a set‑aside hearing was listed before this Court on 22 May 2024, but, by the time of the hearing of this application, the matter had been set down for a substantive hearing on 12 September 2024.

It is apparent from the material filed thus far that LH Holding’s principal ground for setting aside the statutory demand is that it contends that the compensation order is stayed by the operation of s 311 of the CPA.

The effect of s 311(2) is that, unless this Court otherwise directs, a compensation order “is stayed during the appeal period”. As I shall explain in more detail later, the parties agree that, in the circumstances of this case, “the appeal period” includes not only the 28‑day period permitted by the CPA for commencing an appeal but, once notices of appeal against sentence have been filed within that period (as was done here by the DPP), also the period until the determination of those appeals.

Ms Tsahrelias is concerned that those appeals will delay and frustrate her ability to enforce the compensation order. It is in those circumstances that she now applies, pursuant to the slip rule and/or s 311(2) of the CPA, for an order nunc pro tunc amending the compensation order so that that order reads as follows (with the proposed amendments underlined):

The application for compensation by Georgia Tsahrelias is granted; LH Holding Management Pty Ltd (ACN 118 908 660) and Mr Hanna are ordered to pay Georgia Tsahrelias one‑hundred‑and‑twenty‑thousand dollars ($120,000) in compensation (liability for which is joint and several); and there is no order as to costs up to and including 19 February 2024.
For the avoidance of doubt:
(a)no stay will apply to this order (whether by reason of s 311 of the [CPA] or otherwise); and
(b)interest will accrue pursuant to s 101(1) of the Supreme Court Act on any balance outstanding on this amount after 19 February 2024.

Other evidence

On this application, I received evidence by way of affidavits — one sworn (on 8 May 2024) by Ms Tsahrelias’s solicitor, Michael Simiele of Carbone Lawyers, and the other sworn (on 6 June 2024) by Mr Hanna. As I understand it, there is no controversy about much of what is said in those affidavits, albeit I shall indicate later the parts that may be regarded as tendentious.

I note also that the pleas in mitigation for the two offences and the applications for compensation were heard concurrently over three days (on 10 and 16 October and 4 December 2023). That fact, and because of the potential interaction between the order for compensation and the sentences imposed, is why my reasons for sentence and for the making of the compensation order may be found in the one (very brief) judgment delivered orally on 19 February 2024, and the one (far more detailed) written judgment published on 6 March 2024.[6] Given the evidence and arguments put on this application, it will be necessary to refer to parts of the latter judgment shortly and again later in these reasons.
[6]As for the latter judgment, see R v LH Holding & Hanna [2024] VSC 90.

At the hearing on 4 December 2023, there was discussion about the operation of ss 52 and 53 of the Sentencing Act, and in particular about the potential interaction between the agreed compensation to be paid to Ms Tsahrelias and any fine to be imposed on LH Holding or Mr Hanna.

Further, on the same day of the hearing, counsel then appearing for LH Holding and Mr Hanna said this:[7]

My clients seek that Your Honour take into account, in their favour, their willingness to make these [compensation] payments, their cooperation in the process … and it is absolutely intended that the payments to Georgia Tsahrelias will be made and, I think, [counsel for Ms Tsahrelias] has no issue with me telling Your Honour that we are having discussions about instalments and so forth and how that would be achieved. And the fact is, there will be an order against Mr Hanna personally and, if the company goes bust, he will still have to pay that amount, unless he’s not solvent and that’s not likely to be the case, as far as we know, [given] what Your Honour knows about the family’s financial position as well. So, the prospect of [the compensation order] not being paid because of the fine is not a practical consideration in this case … . If, in the hopefully unlikely event that [Mr Hanna] also became personally insolvent, yes, but the evidence is that that’s not likely to happen, unless some other intervening [cause] arises. But, in any event, [Mr Hanna] certainly intends to pay the money.

[7]Transcript of plea hearing (4 December 2023) at pp 24‑25.

As Mr Simile observed in his affidavit, at various other points in the discussion that day, counsel for Mr Hanna and LH Holding relied on Mr Hanna’s personal liability to pay Ms Tsahrelias’s compensation order as a matter informing the sentencing discretion.[8]
[8]Transcript of plea hearing (4 December 2023) at, e.g., pp 7, 9‑11 and 26.

In my full reasons for sentence published on 6 March 2024, I said the following vis‑à‑vis ss 52 and 53 of the Sentencing Act and the interaction between the accused’s financial circumstances, the compensation order, and sentence:[9]
[9]R v LH Holding & Hanna [2024] VSC 90 at [119]‑[125] (footnote omitted) (emphasis not in the original, but added now because of the arguments made on behalf of Ms Tsahrelias on this application, as to which, see below).

Fines, financial circumstances and compensation
[119] Section 52(1) of the Sentencing Act provides that, “[if] a court decides to fine an offender, it must in determining the amount and method of payment of the fine take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose”.
[120] Relevantly, s 53 provides as follows:
(1)In considering the financial circumstances of the offender, the court must take into account any other order that it or any other court has made or that it proposes to make—
…
(b)requiring the offender to make restitution or pay compensation.

(2)The court must give preference to imposing an order on the offender to make restitution or pay compensation, though it may impose a fine as well on the offender, if the court considers—
(a)that the offender has insufficient means to pay both a fine and a restitution or compensation order; and
(b)that it would be appropriate both to impose a fine and to make a restitution or compensation order.

[121] The evidence before me is that LH Holding, which still continues to trade, has assets of between $300,000 and $400,000.
[122] As for Mr Hanna’s personal financial circumstances, there is evidence that there is approximately $400,000 of equity in heavily mortgaged properties registered in his wife’s name.
[123] Further, LH Holdings and Mr Hanna have agreed with Georgia Tsahrelias that they should be ordered to pay her $120,000 in compensation as settlement of her application under s 85B of the Sentencing Act. Mr O’Neill [who appeared for the company and Mr Hanna] accepted that the company and Mr Hanna will be jointly and severally liable for payment of that amount so ordered.
[124] I have taken the company’s financial circumstances into account in considering the appropriate fine to impose upon it. As will be seen, the fine I have arrived at well exceeds the company’s assets. Notwithstanding the likelihood that that fine will not be met in full because of the company’s limited assets, I consider it is appropriate and consistent with sentencing principles to impose the fine I have selected.
[125] That said, in order that at least the spirit of s 53(2)(a) is honoured, and because I think it [is] the right thing to do anyway, I would urge those who have responsibility for collecting fines to ensure that the $120,000 ordered by way of compensation against the company is paid to Georgia Tsahrelias first, and before any assets of the company are used to pay its fine (or part of it).

Further, in a footnote to paragraph [125] of my reasons, I said this:[10]

For the same reasons, I would urge Mr Hanna to ensure that LH Holding pays the $120,000 ordered against it and in favour of Georgia Tsahrelias forthwith.

[10]R v LH Holding & Hanna [2024] VSC 90 at [125], footnote 20 (again, emphasis not in the original, but added now because of the arguments made on behalf of Ms Tsahrelias on this application, as to which, see below).

A little later in my reasons, when discussing whether to impose on Mr Hanna a CCO alone or a CCO and a fine, I said this:[11]

[129] Further, notwithstanding that the company is a separate person in law and that Mr Hanna and the company have each committed an offence, the reality is that, given that Mr Hanna is the sole director and shareholder of the company, the fine imposed on LH Holding will also impact upon him personally.

[11]R v LH Holding & Hanna [2024] VSC 90 at [129].

After I imposed the sentences and made the compensation order on 19 February 2024, no application was made, either by Ms Tsahrelias or by Mr Hanna or LH Holding, whether pursuant to s 311(2) of the CPA or the slip rule, to have me either direct the lifting of any stay of the compensation order effected by s 311(2) or amend the order to make it payable forthwith. Nor, other than the current application, has there been any other application to lift the stay or to have the slip rule apply to amend the compensation order.

In his affidavit, Mr Simiele asserted that, “[as] is apparent from the transcript of the plea in mitigation on 4 December 2023, it was implied that [the compensation order would be paid by LH Holding and Mr Hanna] with good will and as soon as practicable (although possibly by instalments)”. In those circumstances, he said, “it reasonably appeared unnecessary for the Court and/or [Ms Tsahrelias’s] legal advisors to address the potential implications of s 311 of the [CPA] in the event that the [sentences] were appealed by any party”.[12]
[12]Mr Simiele’s affidavit at [18].

On 24 April 2024, Mr Simiele sent a common letter to both the Office of the Public Prosecutions (“the OPP”) and the solicitors for LH Holding and Mr Hanna foreshadowing the current application, and asking whether any of those persons or entities would “consent to Ms Tsahrelias’s proposed application”. On 1 May 2024, the OPP responded by email by saying this:

In circumstances where the [DPP] was not a party to the compensation order, the [DPP] cannot consent to the application.

As at the date of Mr Simiele’s affidavit, no response had been received by LH Holding or Mr Hanna.[13]
[13]Annexed to Mr Simiele’s affidavit were copies of the following documents: (a) transcript from plea hearing on 4 December 2023; (b) sentencing orders as made by me on 19 February 2024; (c) compensation order made by me on 19 February 2024; (d) R v LH Holding & Hanna [2024] VSC 90; (e) notice of appeal dated 18 March 2024 in DPP v Hanna; (f) notice of appeal dated 18 March 2024 in DPP v LH Holding; (g) LH Holding’s application to set aside the applicant’s statutory demand; (h) Mr Simiele’s letter dated 24 April 2024 to LH Holding and Mr Hanna’s solicitors and the OPP; and (i) email from the OPP dated 1 May 2024.

For completeness, I should add this. As I explained to counsel at the hearing of this application, the OPP emailed the Court advising that, for the avoidance of doubt, the DPP would not be appearing on this application because the DPP was not a party to the making of the compensation order.

In his affidavit, Mr Hanna outlined his financial position, as well as that of LH Holding, each of which appears to be the same as it was when outlined at the plea hearing on 10 October 2023. Those circumstances are as follows.

Mr Hanna has personal equity in the approximate sum of $400,000. This amount derives from his family home, in respect of which his wife is sole proprietor. The house is worth approximately $2,700,000 and carries a mortgage of about $2,289,000. The home is occupied by Mr Hanna, his wife and their children, one of whom is disabled. Mr Hanna is the sole income earner for his family.

LH Holding has assets in the form of material and equipment to the value of between $300,000 and $400,000.

Mr Hanna said that the incident and the proceedings have had a significant effect on both his and his family’s mental health and wellbeing.

Mr Hanna recounted the history of the making of the compensation order, and said that the negotiated sum in relation to Georgia Tsahrelias and the dismissal of her parents’ applications was done in order to save time and costs and the Court’s resources. He said he has tried his best to ensure matters could proceed expeditiously.

Mr Hanna said that, in negotiations, he made clear that he and LH Holding would not be in a position to pay the entirety of the compensation amount straight away, and that payment terms would be required.

Mr Hanna explained that none of LH Holding’s assets have been used for any purpose other than payment towards legal fees and the compensation order.

Mr Hanna said that he is struggling to fund the legal costs of the DPP’s appeals, to undertake his obligations under the CCO, and to make payments towards the compensation order. Further, he said that he did not envisage the substantial costs of appeal when he negotiated the amount of the compensation order.

Mr Hanna confirmed that, as at the date of his affidavit, he has made payment in the sum of $5,000 towards the compensation order. A remittance showed this payment was made on 9 May 2024.

Mr Hanna outlined the correspondence between the parties’ solicitors as follows:

(a) Between 22 February 2024 and 12 March 2024, Ms Tsahrelias’s solicitors wrote to his and LH Holding’s solicitors demanding payment of the compensation order.

(b) On 12 March 2024, his and LH Holding’s solicitors wrote to Ms Tsahrelias’s solicitors stating that it was made clear prior to the making of the compensation order that time would be required to pay it, and that it was disputed that penalty interest was owing.

(c) On 22 March 2024, his and LH Holding’s solicitors received an email from Ms Tsahrelias’s solicitors stating that, if payment were not received by 27 March 2024, a statutory demand would be served on LH Holding.

(d) On 26 March 2024, his and LH Holding’s solicitors sent to Ms Tsahrelias’s solicitors a responding email setting out that the compensation order was stayed as a result of the notices of appeal filed by the DPP.

(e) Also on 26 March 2024, Ms Tsahrelias’s solicitors sent a responding email that the compensation order was not subject to appeal and therefore was not stayed.

(f) On 28 March 2024, Ms Tsahrelias’s solicitors served a statutory demand in relation to the compensation order and interest.

Mr Hanna said that LH Holding made an application to this Court to set aside the statutory demand so as to avoid a winding up application on grounds of alleged insolvency. He explained that LH Holding has incurred legal costs in making the set‑aside application, and that further work would need to be done ahead of the hearing on 12 September 2024.

Mr Hanna noted that Mr Simiele acknowledged in his affidavit that payment of the compensation order would be made by way of instalments. He also said that, but for the appeal proceedings instituted by the DPP, he and LH Holding would have paid off a significantly larger portion of the compensation order. He added that both he and LH Holding have always intended to pay the compensation order, but that he is at his financial limit and he does not know how the appeal proceedings are going to impact on the sentencing orders and the compensation order.[14]

Statutory provisions raised by parties

[14]Annexed to Mr Hanna’s affidavit were copies of the following documents: (a) transcript from the plea hearing on 10 October 2023; (b) a remittance in the amount of $5,000 to Ms Tsahrelias’s solicitors dated 9 May 2024; and (c) the emails mentioned above between the parties’ solicitors.

Sections 85B and 85K of the Sentencing Act

I turn to some of the main legislative provisions raised by the parties in this application, commencing with ss 85B and 85K of the Sentencing Act. These provisions appear in Subdivision 1 (“Compensation for pain and suffering etc”) of Division 2 (“Compensation”) of Part 4 (“Orders in addition to sentence”) of that Act.

The relevant part of s 85B is in these terms:

85B Compensation order
(1) If a court—
(a) finds a person guilty of an offence; or
(b) convicts a person of an offence—

it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).

…

Thus, it can be seen that the Court’s jurisdiction to make a compensation order against a person turns on that person being found guilty or convicted of an offence and the applicant for compensation suffering injury as a direct result of the offence.

Section 85K of the Sentencing Act is in these terms:

85 Costs of proceeding
Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.

As is reflected in the compensation order, the parties agreed that there should be no order as to costs.

Sections 52 and 53 of the Sentencing Act

Sections 52 and 53 of the Sentencing Act, which are found in Division 1 (“Fines”) of Part 3B (“Sentences – Fines”) of that Act, are in the following terms:

52 Financial circumstances of offender
(1) If a court decides to fine an offender it must in determining the amount and method of payment of the fine take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
(2) A court is not prevented from fining an offender only because it has been unable to find out the financial circumstances of the offender.

53Court to take forfeiture, compensation and restitution orders into account
(1) In considering the financial circumstances of the offender, the court must take into account any other order that it or any other court has made or that it proposes to make—
(a) providing for the forfeiture of the offender’s property or the automatic forfeiture of the offender’s property by operation of law; or
(b) requiring the offender to make restitution or pay compensation.

(2) The court must give preference to imposing an order on the offender to make restitution or pay compensation, though it may impose a fine as well on the offender, if the court considers—
(a) that the offender has insufficient means to pay both a fine and a restitution or compensation order; and
(b) that it would be appropriate both to impose a fine and to make a restitution or compensation order.

Sections 287-290 of the CPA

Sections 287, 288, 289 and 290 of the CPA are found in Division 3 (“Crown appeal against sentence”) of Part 6.3 (“Appeal and case stated from County Court of Trial Division of Supreme Court to Court of Appeal”) of that Act.

Section 287 is in these terms:

287 Right of appeal—inadequate sentence
The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP—
(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b) is satisfied that an appeal should be brought in the public interest.

Section 288(1) provides, inter alia, that an appeal under s 287 is commenced by filing notice of appeal within 28 days after the day on which the sentence is imposed.

Section 289 reads as follows:

289 Determination of Crown appeal
(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that—
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.

(2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.
(3) In any other case, the Court of Appeal must dismiss an appeal under section 287.

Section 290 is in these terms:

290Orders etc on successful appeal
(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.
(2) If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.
(3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

Meaning of “sentence”

By s 3 of the CPA, “sentence” in that Act includes, inter alia, an order made under Part 3A, Part 3B or Part 4 of the Sentencing Act, other than an order incidental to or preparatory to the making of the order. Fines, CCOs and compensation orders are respectively orders made under Parts 3B, 3A and 4 of the Sentencing Act.

Sections 309, 311 and 315 of the CPA

Sections 309 and 311 of the CPA are found in Division 6 (“Status of sentences and orders during appeal period”) of Part 6.3 of the Act.

Section 309 reads in this way:

309Sentence not stayed during appeal period
(1) A sentence is not stayed during the appeal period unless—
(a) this Act or any other Act otherwise provides; or
(b) an order is made under subsection (2).

(2) The trial judge or, if a notice of appeal or notice of application for leave to appeal is filed, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so.

Note
See the definition of sentence in section 3.

Section 311 is in the following terms:

311Stay of certain orders during appeal period
(1) This section applies to an order under section 84, 85B or 86 of the Sentencing Act 1991 made by the Supreme Court or the County Court.
Note
See section 83G(1) of the Sentencing Act 1991 in relation to superannuation orders.
(2) Unless the Supreme Court or the County Court otherwise directs, an order referred to in subsection (1) is stayed during the appeal period.[15]
(3) If an order is stayed under subsection (2) and the conviction is set aside on appeal, the order does not take effect unless the Court of Appeal otherwise orders.
(4) The Court of Appeal may set aside or vary an order made by the Supreme Court or the County Court under subsection (2).
(5) Rules of court may provide for securing the safe custody during the appeal period of any property the subject of an order referred to in subsection (1).

[15]My emphasis in bold italics.

As we have seen, s 85B of the Sentencing Act concerns compensation orders for those who have suffered injury as a direct result of an offence. The other two types of order under the Sentencing Act mentioned in s 311(1) of the CPA are those made under s 84 (restitution orders for the return of stolen goods or for payment of money up to the same value[16]) and s 86 (orders for compensation concerning loss or destruction of, or damage to, property as a result of an offence).
[16]In recent years, restitution orders under s 84 have been extended to payment of employee entitlements or an equivalent sum for offences against ss 6(1), 7(1) and 8(1) of the Wage Theft Act 2020 (Vic). See ss 84(4A)‑(4C) of the Sentencing Act.

In s 3 of the CPA, “appeal period” is defined as meaning:

the period permitted by or under this Act or any other Act for commencing an appeal under Part 6.3 or, if a notice of appeal or notice of application for leave to appeal under Part 6.3 is filed within that period, the determination of the appeal; …

Section 315 is found in Division 7 (“Powers and procedure”) of Part 6.3 of the CPA. Relevantly, s 315 provides as follows:[17]
[17]My emphasis in bold italics in s 315(1)(f).

315Powers which may be exercised by Court of Appeal constituted by a single Judge of Appeal
(1) The Court of Appeal constituted by a single Judge of Appeal may exercise the following powers—
(a) to give leave to appeal;
(b) to review a refusal to certify;
(c) to extend the time within which notice of appeal may be filed and served;
(d) to extend the time within which notice of application for leave to appeal may be filed and served;
(e) to grant the appellant bail;
(f) to order stays of sentence;
(g) to call on a court and a respondent to show cause why a question of law should not be reserved for determination by the Court of Appeal.

(2) If the Court of Appeal constituted by a single Judge of Appeal refuses an application to exercise a power referred to in subsection (1) in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal constituted by 2 or more Judges of Appeal.

…

Rule 36.07 of the Supreme Court (General Civil Procedure) Rules

Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”) provides that this Court:

may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.

Section 101(1) of the Supreme Court Act

Section 101 of the Supreme Court Act 1986 (Vic) is in these terms:

101Interest on judgment
(1) Every judgment debt carries interest at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 from the time the judgment was given or, in the case of costs which are assessable by the Costs Court, from the date of the order of the Costs Court stating the result of the assessment or such other date as the Court orders.
(2) The amount of the interest must be stated in the body of, and may be levied under, a warrant of execution on the judgment.

Ms Tsahrelias’s submissions

Introduction

Mr Duggan, who appeared for Ms Tsahrelias on this application (but not on the original compensation application), filed written submissions in this matter, which he supplemented with oral submissions at the hearing.

Mr Duggan put Ms Tsahrelias’s application on two bases: first, under the slip rule; and second, under s 311(2) of the CPA.

The slip rule

I understood Mr Duggan to put the slip rule at the forefront of his submissions.

He explained that the rule has two sources: the inherent jurisdiction of the Court; and rule 36.07 of the Rules, which is extracted above.[18]
[18]In his written submissions, Mr Duggan noted that there has been judicial controversy as to whether the Court’s inherent “slip rule” jurisdiction is confined by rule 36.07. But, he submitted, that particular issue is probably academic in this case, as either would produce the same correction the applicant seeks. Counsel also referred to Hodgson v Amcor (No 8) [2012] VSC 162 at [7]‑[30], where Vickery J surveyed the authorities and preferred the view the Civil Procedure Act 2010 (Vic) commended an expansive application of the slip rule which was not confined by rule 36.07.

In respect of the inherent jurisdiction of the Court, Mr Duggan referred to the following passage from the High Court’s judgment in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2):[19]

Order 29, r 11 [of the High Court Rules] is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court “at any time to correct an error in a decree or order arising from a slip or accidental omission”. In terms, the rule provides, inter alia, that “an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the court or a justice on motion or summons”. The rule extends to authorize an omission resulting from the inadvertence of a party’s legal representative. This is so, regardless of whether the order has been drawn up, passed and entered.

[19]L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594‑595 (per Mason ACJ, Wilson and Deane JJ) (citations omitted).

Mr Duggan emphasised that there was consent between the parties that the compensation order should be made, and as to its amount. He also relied on what I said in footnote 20 of my reasons of 6 March 2024, which is extracted above. In his submission, I “expressed a clear view that the [compensation order] should be paid in priority to the fine against [LH Holding]”.

Mr Duggan submitted that the purpose of the slip rule is to avoid injustice to litigants by ensuring that the Court’s judgment or order reflects its intention at the time the order was made, or the judgment was published, or reflects the intention that the Court would have had but for some failure that caused an accidental slip or omission.[20]
[20]Counsel cited Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375 at 380[26].

Mr Duggan also referred to Storey & Keers Pty Ltd v Johnstone,[21] where McHugh JA said that, in general, the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris,[22] which is that, if the matter had been drawn to the Court’s attention, would the correction have been made at once?
[21]Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453.
[22]Hatton v Harris [1892] AC 547 at 558.

Mr Duggan submitted that Lord Herschell’s question should be considered in the context of things said and not said at the hearing on 4 December 2023, including the following:

(a) Counsel for Mr Hanna and LH Holding told the Court that “once your Honour orders compensation, the default position … is that it’s effectively a debt that becomes owing straight away …”.[23]
[23]Transcript of plea hearing (4 December 2023) at pp 26‑27. The passage in full reads: “once your Honour orders compensation the default position, subject to the private agreement that we’re discussing, is that it’s effectively a debt that becomes owing straight away and this is a stay on that” (emphasis added to the parts omitted where the ellipses appear).

(b) No others at the hearing (which included those appearing for Ms Tsahrelias and the DPP respectively) contested that submission.

(c) Counsel for Mr Hanna and LH Holding variously informed the Court that:

(i) “it is absolutely intended that the payments to [Ms] Tsahrelias will be made”;[24]
[24]Transcript of plea hearing (4 December 2023) at p 24.

(ii) “the prospect of the [compensation order] not being paid because of the fine is not a practical consideration in this case”;[25] and
[25]Transcript of plea hearing (4 December 2023) at p 25.

(iii) “in any event, [Mr Hanna] certainly intends to pay the money”.[26]

(d) The Court directly raised with counsel (including senior counsel for the DPP) whether a stay should be ordered on any fine but not on the compensation order.[27] Counsel for Mr Hanna and LH Holding sought a stay of six months on any fine[28] but he did not seek any stay on the compensation order. Senior counsel for the DPP expressly did not object to a stay on any fine.[29]

[26]Transcript of plea hearing (4 December 2023) at p 25.

[27]Transcript of plea hearing (4 December 2023) at pp 21‑30.

[28]Transcript of plea hearing (4 December 2023) at p 28.

[29]Transcript of plea hearing (4 December 2023) at p 30.

Mr Duggan submitted that the “accidental slip or omission” in the compensation order was its silence as to the stay or lack thereof. He submitted that the order’s silence created an ambiguity as to whether it was the Court’s intention (a) that the compensation order would become owing straight away and should be paid forthwith or (b), alternatively, that the stay implied under s 311(2) of the CPA applied.

Mr Duggan submitted that the Court’s intention as to any stay of the compensation order is not discernible from the compensation order itself. This, he submitted, is the accidental slip or omission that the application seeks to have rectified.

Mr Duggan then turned to Lord Herschell’s question, and asked, if the compensation order’s silence as to the stay had been drawn to my attention, would I have made a correction at once? He asked, how might the hypothetical observer on 19 February 2024 have queried the form of the compensation order? In his submission, the following are fair formulations of the questions that might have been raised at that time:

(a) Was it my intention for the compensation order to be paid “forthwith” (as later said in the footnote to the full reasons delivered on 6 March 2024)? Or was it instead my intention that the compensation order be stayed for an indeterminate time by reason of the presumptive stay effected by s 311(2) of the CPA, which had not been drawn to my attention by any party?

(b) Was it my intention that any indeterminate stay by operation of s 311(2) apply even if no party ever appealed against the compensation order?

(c) Was it my intention that, should the respondents fail to pay the applicant forthwith, they should not be liable to interest for which they would normally be liable in accordance with s 101(1) of the Supreme Court Act?

Mr Duggan submitted that, in light of the transcript of 4 December 2023 and my reasons of 6 March 2024, the answer to these questions is “so obvious” that this application should not have been necessary.

He further submitted that the hearing of 4 December 2023 was predicated upon the respondents’ consent to the making of the compensation order and their professed intention to ensure that it was actually paid, and within a reasonable time. In those circumstances, he submitted, it must have reasonably appeared to me that there was no longer anything contentious about the compensation order as of 19 February 2024 and that it was redundant to make a formal order that the amount be paid “forthwith”.

Mr Duggan also submitted that whether the respondents have incurred subsequent expenses since the making of the compensation order should not inform the application of the slip rule.

Accordingly, in Mr Duggan’s submission, the slip rule applies, and the compensation order should be amended nunc pro tunc — so that it was payable forthwith from 19 February 2024. In particular, as I understood him, he submitted that I should exercise this Court’s jurisdiction to correct the accidental slip or omission by including the word “forthwith” in the compensation order or by amending the order in accordance with the relevant part of the underlining set out above in his draft amended order.

Also consistently with his draft amended order, Mr Duggan submitted that it should be made clear that s 101(1) of the Supreme Court Act applied from 19 February 2024 as well. That said, as I understood his oral submissions, such an amendment would not be necessary because, once the word “forthwith” is added under the slip rule or it is otherwise made clear that there was never any stay on the compensation order (for example, by adopting the relevant amendment proposed in the draft amended order), the provision would apply from 19 February 2024 in any event as the compensation order would be a judgment debt within the meaning of s 101(1).

As for the proposed amendment concerning costs, as I understood Mr Duggan, the point of that proposed amendment was to make it clear that, while there would be no order as to costs concerning the compensation order application up to the date the order was made, there would be room for costs to be ordered, if thought necessary, relating to any steps taken in relation to that order after that date.

Application for lifting of stay pursuant to s 311(2) of the CPA

In the alternative, Mr Duggan submitted that, pursuant to s 311(2) of the CPA, I should make an order lifting the stay of the compensation order that would otherwise appear to apply by force of the same provision.

As Mr Duggan pointed out, there is no appeal against the compensation order itself, and there never has been any such appeal on foot. He submitted that, while the Court of Appeal is now seized of the sentence appeals between the DPP and the respondents, that court is not seized of any dispute between Ms Tsahrelias and the respondents vis‑à‑vis the compensation order. In these circumstances, he submitted, this Court remains seized of the matter of the compensation order and remains specifically empowered under s 311(2) to remove the stay effected by that provision.

Mr Duggan submitted that there would be nothing unusual or illogical about lifting the stay on the compensation order while the DPP’s appeals against the fine and the CCO are on foot and are yet to be determined. He submitted that separate treatment of any fine and any compensation order is mandated by s 53(2) of the Sentencing Act. He also submitted that, while (as discussed at the hearing on 4 December 2023) there is a tension within s 53(2), the provision also makes clear the legislature’s preference for payment of compensation orders over fines. Further, he submitted that nothing in the relevant statutory provisions or in public policy supports any contention that an uncontested but unpaid compensation order should be stayed pending the final determination of all separate appeals concerning the sentence or sentences for the offence or offences from which that compensation order arose.

In Mr Duggan’s submission, as presently expressed, the compensation order is arguably stalled as unintended collateral damage of the pending sentencing appeals. He submitted that this unfortunate outcome cannot have been my intention when making the compensation order; and nor could it have been the legislature’s intention when the compensation order regime was created in the Sentencing Act. In his submission, the carve‑out in s 311(2) of the CPA (“Unless the Supreme Court … otherwise directs”) allows the Court an additional means (over and above the slip rule) to reverse this mischief.

Discretionary factors

Mr Duggan submitted that the following considerations should cause this Court to exercise its discretion to make an order nunc pro tunc amending the compensation order or a direction that no stay apply to the compensation order.

First, by amending the compensation order as proposed, the Court would simply be perfecting the view that it has already clearly and publicly expressed to the parties, both during the joint sentencing and compensation hearing and in its full reasons, that the compensation order be paid “forthwith”.

Second, the respondents’ pleas in mitigation were conducted on the basis that they consented to the compensation order. There was no equivocation or caveat placed upon that consent. The respondents’ apparently cooperative and conciliatory approach to the compensation order was, he submitted, presumably a discretionary factor considered by me when determining sentence. The respondents have subsequently paid almost none of the compensation order that they had urged me to factor into their sentences. That non‑payment, he submitted, is highly relevant to the exercise of my discretion in this application.

Third, the surest way this Court can give priority to the respondents’ payment of the compensation order, before payment of whatever fine or fines they are ultimately required to pay, is to ensure that collection of payment of the compensation order is not frustrated pending the final quantification of the fine or fines by the DPP’s appeals.

Fourth, there now appears to be a real risk that the compensation order will be rendered nugatory by the likely insolvency of one respondent, or perhaps both, following the hearing of the appeals, irrespective of the outcome of those appeals. If the respondents are both to become insolvent, it is desirable from a public policy perspective (as informed by s 53(2) of the Sentencing Act, among other things) that such insolvency occur in the short term as a consequence of the compensation order rather than in the longer term after the respondents’ finances are further depleted by their legal costs of the appeals and whatever fine or fines might be imposed against them following such appeals.

Fifth, the retrospective removal of the stay is unlikely to cause either of the respondents any genuine prejudice. There are two principal reasons for what Mr Duggan described as a perhaps counterintuitive submission in this respect:

(a) First, interest runs on a judgment debt whether or not such judgment debt is stayed.[30] It follows that the removal of the stay will not cause the respondents any additional interest on the compensation order beyond the interest that is already accruing against them pursuant to s 101(1) of the Supreme Court Act.
[30]Counsel cited P Aker Flowerbulbs Pty Ltd v Coulter (2004) 140 FCR 410 at 417[36] (per Weinberg J).

(b) Second, if the respondents’ submissions during the sentencing hearings as to their respective financial positions are taken at face value, it would appear that:

(iv) Mr Hanna’s personal financial position as of December 2023 was sufficient to pay the compensation order;

(v) LH Holding’s financial position as of December 2023 was inadequate to pay the existing fine (with or without the compensation order);

(vi) LH Holding’s insolvency accordingly appears inevitable whether or not the DPP’s current appeal against its sentence succeed; and

(vii) because of these considerations, amending the compensation order immediately as proposed is unlikely to alter materially the longer‑term financial outlook for either respondent.

Sixth, and conversely, amending the compensation order as Ms Tsahrelias now proposes might substantially improve her prospects of securing payment of that order in the near future.

Seventh, no disentitling conduct of any description is alleged against Ms Tsahrelias. It has never been suggested, for example, that she entered into any type of instalment arrangement with the respondents concerning the compensation order, and then resiled from it.

Mr Duggan’s final submission under this topic was that slip rule amendments always speak as of the date of the original order. They are not to be determined in the light of subsequent events relied on by the respondents. In Mr Duggan’s submission, while the respondents might not have anticipated the DPP’s appeals against sentence, that is immaterial unless they now contend that my statement as to the compensation order being paid “forthwith” should reasonably have been understood as forthwith unless an appeal by the DPP and/or another cash flow issue inconveniences the respondents before such payment is made, which would be fanciful.

Conclusion

Accordingly, in Mr Duggan’s submission, my intentions in making the compensation order on 19 February 2024 were abundantly clear in the light of all the material, including the full reasons published on 6 March 2024. The respondents have nevertheless subsequently relied upon s 311(2) of the CPA to produce an alternative construction of the compensation order’s meaning, which has frustrated its enforcement.

Mr Duggan submitted that Ms Tsahrelias does not now seek to change the substance of the compensation order, but only its form. The order should simply be rephrased in a formulation that better expresses my obvious intentions when making the order on 19 February 2024.

It is for these reasons that Mr Duggan submitted that, one way or another, the application should be granted (and the necessary orders should be made), with costs.

Mr Hanna and LH Holding’s submissions

Introduction

Ms Isobel, who appeared for Mr Hanna and LH Holding on this application (but not on the pleas in mitigation or the original compensation application), also filed written submissions in this matter, which she supplemented with oral submissions at the hearing.

In summary, Ms Isobel explained that the respondents opposed the application on the following grounds. First, she submitted that Ms Tsahrelias does not have a proper basis in law to make either application. This is because, in the circumstances of this case, there is no power under the slip rule to make the orders sought; and because, now that the DPP has appealed the sentences, this Court does not have jurisdiction under s 311(2) of the CPA to lift the stay in operation by reason of that same provision. Second, in the event that I consider that there is a proper basis for the application, the respondents’ position is that the orders sought should not be made.

Compensation order stayed on its creation, and stay extended once sentences appealed

In Ms Isobel’s submission, by operation of s 311 of the CPA, the compensation order was stayed upon its creation. If nothing else occurred, this stay, she submitted, would have automatically lifted at the conclusion of the 28‑day appeal period provided for by s 288(1) of the CPA, allowing Ms Tsahrelias to pursue the compensation order as a judgment debt from that date onwards. However, the DPP’s filing of a notice of appeal against sentence in respect of each respondent extended “the appeal period” within the meaning of that term in s 311(2) of the CPA, and therefore the stay on the compensation order has continued, and remains in place to this day.

In Ms Isobel’s submission, the DPP’s appeals against sentence comprise all aspects of the sentences, including the compensation order. In her submission, each notice of appeal filed lists the compensation order as part of the sentence that is appealed. And, in Ms Isobel’s submission, this is to be expected, because compensation orders are orders made under Part 4 of the Sentencing Act, and, as a result, they fall within the definition of “sentence” in s 3 of the CPA. As counsel pointed out, it has been settled law since at least 2006 that the right of the DPP to appeal against sentence includes a right to appeal against compensation orders as they are part of the sentence imposed on an offender.[31]
[31]Counsel cited DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345 at 346[1] (per Buchanan JA), 350[21]‑352[28] (per Vincent JA) & 355[46]‑356[47] (per Neave JA). While that matter concerned the now repealed s 567A of the Crimes Act 1958 (Vic), there is no reason to think that the equivalent provisions under the CPA should be construed any differently.

In Ms Isobel’s submission, there is nothing to suggest that the DPP could or would attempt to ring‑fence or exclude this portion of the sentence from the present appeals. In her submission, the basis for the DPP’s appeals appears to be that the sentences, taken as a whole, were each manifestly inadequate. Further, submitted Ms Isobel, the compensation order featured as an important part of my task in arriving at those sentences. She observed that a large amount of time appears to have been devoted to hearing submissions about “thorny issues”, such as how ss 52 and 53 of the Sentencing Act operated, and the interplay between any compensation order and any fine to be imposed. In her submission, it appears likely such thorny issues would be relevant before the Court of Appeal as well.

In any event, submitted Ms Isobel, even if the DPP were to attempt to keep the compensation order portion of the sentence unchanged, there is no guarantee she would be successful in that endeavour. The compensation order is part of the sentences that the DPP has placed before the Court of Appeal as inadequate. Once the discretion of the Court of Appeal is enlivened, it has broad powers, under ss 290(1) and (2) of the CPA, to consider what sentence is appropriate and make any other orders it considers ought to be made.

The slip rule

In Ms Isobel’s submission, the orders sought by Ms Tsahrelias are patently not a clerical mistake or an error arising from an accidental slip or omission. The application seeks three significant amendments to the compensation order — on costs, interest, and the stay — that would affect the substantive rights of the parties.

In Ms Isobel’s submission, the compensation order I made is what the parties asked for. It reflects lengthy negotiations between the parties, and careful, comprehensive submissions made by the legal representatives over the course of considered hearings. The costs aspect of the compensation order (that there be no order as to costs) was made in accordance with s 85K of the Sentencing Act. And the compensation order is silent as to the potential effect of s 311 of the CPA and penalty interest because no party made any application for the Court to consider these issues.

In addition, submitted Ms Isobel, the slip rule applies only where the proposed amendment is one upon which no real difference of opinion can exist.[32] It cannot be used where the amendment is a matter of controversy. Yet, in her submission, each of the three additional orders sought is clearly an area of controversy. Using the slip rule is not a proper way for Ms Tsahrelias to attempt to obtain what in effect would be the lifting of the stay. Nor is it a proper way for her to try to shore up a later claim for costs or interest on the judgment debt.
[32]Counsel cited Sands & McDougall (Wholesale) Pty Ltd (in liq) & Anor v Commissioner of Taxation [1999] VSCA 36 at [21] (per Brooking JA, Charles and Chernov JJA agreeing), adopting the test in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390‑391 (per Lockhart J, Black CJ concurring).

Accordingly, in her submission, the slip rule cannot apply to make any of the amendments sought in respect of the compensation order.

Application to lift stay effected by s 311(2) of the CPA

Ms Isobel accepted that s 311(2) of the CPA would have allowed this Court to make a direction that the compensation order would not be stayed in the event of a future appeal by the DPP or the respondents, if such an application had been made when the matter was live before this Court. However, no such application was made.

Ms Isobel added that, if such an application had been made, it is likely I would have asked the parties to make submissions on issues commonly considered in stay applications. This, for example, would have included the risk of irreparable harm to either party if the compensation order remained stayed or the stay were lifted, the interests of justice, and the public interest. Because no application to lift the stay was made, submitted Ms Isobel, I did not consider these issues.

In counsel’s submission, the critical impediment to Ms Tsahrelias’s application for the lifting of the stay at this stage is that, now that this Court has rendered a final decision on the case and the DPP has lodged an appeal against sentence to the Court of Appeal, this Court no longer has jurisdiction to revisit and alter its decision.

Instead, in Ms Isobel’s submission, jurisdiction over the matter has shifted to the Court of Appeal. Any application to alter the status quo — which is that the compensation order has been, and still is, stayed by the operation of s 311 of the CPA — should be made by Ms Tsahrelias (or more accurately, by the DPP on her behalf) to the Court of Appeal. In Ms Isobel’s submission, such an application may be brought before a single Judge of Appeal under s 315(1)(f) of the CPA, to which I shall return shortly.

In Ms Isobel’s submission, the Court of Appeal would be in a better position than this Court to consider such an application, because it would be able to consider issues such as:

(a) the likelihood of the DPP’s success on appeal;

(b) the likelihood of the compensation order being substituted by a different order on appeal;

(c) the risk of irreparable harm if the compensation order were payable before the appeals were determined;

(d) the public interest in circumstances where, on the one hand, the scheme in the Sentencing Act is designed to give victims of crime quick and efficient access to redress by way of compensation and, on the other, the need to ensure certainty and finality in sentencing; and

(e) the expected duration of the appeal process and whether the respondents would be significantly prejudiced by lifting the stay before the appeals were heard and determined.

In Ms Isobel’s submission, that the Court of Appeal is now the proper court to hear this application is also supported by s 309 of the CPA. Section 309(1) contains the general rule that an appeal does not usually operate to stay a sentence. And s 309(2) clarifies that, while the trial judge has the power to stay a sentence up until the point in time at which an appeal (or application for leave to appeal) is filed, at that point, the jurisdiction to consider an application for a stay shifts to the Court of Appeal.

As Ms Isobel observed, s 311 of the CPA carves out an exception to s 309 for compensation orders and reverses the general rule, so that compensation orders are stayed during the appeal period unless otherwise ordered. However, the sequence for stay applications (or more accurately, applications to lift any stay that is automatically imposed by operation of s 311) remains the same. Under s 311(2), during the 28‑day permitted for the filing of a notice of appeal, this Court has the power to direct that a compensation order will not be stayed, whereas, under s 311(4), the Court of Appeal may “set aside or vary an order made by [this Court] under [s 311(2)]”.

Further, in Ms Isobel’s submission, s 311(4) must be read in conjunction with s 315(1)(f) of the CPA, which gives a single Judge of Appeal the general power “to order stays of sentence”. And s 315(2) goes on to provide that, if the single Judge of Appeal refuses an application to exercise a power referred to in s 315(1) (such as an application for a stay), “the applicant is entitled to have the application determined by the Court of Appeal constituted by [two] or more Judges of Appeal”.

In Ms Isobel’s submission, the process is therefore clear.

Discretionary considerations

In the event that, contrary to her submission, I considered that this Court had the power to make any of the orders sought by Ms Tsahrelias, Ms Isobel submitted that, for the reasons that follow, none of those proposed orders should be made.

Commencing with the application to lift the stay effected by s 311 of the CPA, Ms Isobel submitted that that provision exists for a purpose. It ensures that offenders are not required to pay compensation orders until any appeals are finally determined. Requiring offenders to pay compensation before their appeals are determined could lead to irreversible consequences and unjust outcomes if a different sentence is ultimately imposed by the Court of Appeal. In Ms Isobel’s submission, s 311 reflects a commitment to fairness, due process, and the protection of individuals’ rights within the criminal justice system. It aims to strike a balance between the interests of victims seeking compensation and the rights of offenders who are having their sentences reviewed through the appellate process.

It was submitted that lifting the stay in this case would not be in the interests of justice. While Ms Isobel accepted that empathy can be felt for Ms Tsahrelias, who is now likely to be required to wait for payment as a result of an appeal that was neither brought by her nor one that she wished to be launched, she submitted that empathy can also be extended to the respondents. The respondents did not bring these appeals either, but are now required to find the substantial financial resources required to defend them.

Ms Isobel reiterated that the respondents have always intended to pay the compensation order. If the DPP had not launched the appeals, the stay on the compensation order under s 311 of the CPA would have expired when the 28‑day appeal period ended on 18 March 2024. But for the DPP’s decision to appeal and the financial implications this has caused for the respondents, a more substantial part of the compensation order would have already been paid.

Costs and s 85K of the Sentencing Act

Turning to the proposed amendment to the compensation order vis‑à‑vis costs, Ms Isobel submitted that Mr Duggan has provided no explanation and made no submission as to how the general rule in s 85K of the Sentencing Act — which provides that the parties to a compensation order must bear their own costs of the proceeding unless the court otherwise determines — should be overturned in the current case.

Interest and s 101(1) of the Supreme Court Act

Ms Isobel accepted that a compensation order is a judgment debt. In the event that the stay was lifted but payment of the debt was not made, Ms Tsahrelias would be required to apply to the Court for enforcement in the civil jurisdiction.

In Ms Isobel’s submission, however, it is unclear why, how or on what basis Ms Tsahrelias seeks to have this Court impose a penalty interest component from within the compensation order itself — especially when she has filed a creditor’s statutory demand which also seeks penalty interest.

Finally, compounding the confusion inherent in this application, submitted Ms Isobel, it is also unclear how interest is meant to be calculated, or why the order proposed by Ms Tsahrelias seeks to backdate interest to 19 February 2024. This, of course, is the date the compensation order was made. Yet, in theory, the earliest date the appeal period referred to in s 311(2) could have ended — and therefore the earliest date the stay effected by s 311 of the CPA could have expired had a notice of appeal not been filed — was 18 March 2024.

Conclusion

It is for these reasons that Ms Isobel submitted that the application should be dismissed, with costs.

Consideration

The slip rule is inapplicable

Introduction

I turn now to my consideration of the matter, commencing with the question whether the slip rule applies.

On the one hand, one of the advantages of a judge considering whether the slip rule applies to correct any accidental error or omission in his or her own order is that, beyond the information apparent from the terms of the order and any reasons given publicly for its making, the judge is likely to remember why the order was made and what was intended by it. On the other hand, the entirety of the detail of that memory cannot be known by the parties, at least not ahead of any hearing. Speaking for myself, this leads to a feeling that the parties are, at least in some sense, denied basic procedural fairness when making submissions about the slip rule. There is also a sense in which a judge feels as if he or she is sitting on an appeal from his or her own order, and yet, for the reasons I have just given, is also a witness, of sorts, in the same matter, but one whose account is not fully known to the parties. I find it a totally foreign — and, indeed, an uncomfortable — position for a judge to be in.

That said, I am satisfied that I am able to explain why I consider the slip rule is inapplicable in the circumstances of this case. And I shall do so by asking myself Lord Herschell’s question in each instance.

Whether order as to no costs was meant to apply only up to 19 February 2024

If the point now agitated about costs had been raised with me at the time I made the compensation order on 19 February 2024, I would not have made any change to the order in that respect. The parties to the compensation application had agreed that there would be no order as to costs. My order reflected that agreement. There was no accidental slip or omission. Whether there might be costs incurred and payable as a result of subsequent attempts at enforcement of the compensation order was not in my contemplation at the time. Nor do I consider that issue to have been my lookout. If asked about it at the time, absent any agreement between the parties, I would have said that whatever costs might be incurred and payable in that respect would be a matter for the court that dealt with any such controversy, if it came to that, and not for me at that stage.

It follows that I consider that the slip rule cannot apply to alter the costs aspect of the compensation order.

Whether penalty interest was meant to apply to unpaid compensation after 19 February 2024

If the point now agitated about penalty interest had been raised with me at the time I made the compensation order, I would not have made any change to the order in that respect either. Again, there was no accidental slip or omission in failing to say anything in the order about penalty interest. As I understood Mr Duggan, he submitted that whatever interest might be payable upon any unpaid amount of the compensation order would be determined by operation of s 101(1) of the Supreme Court Act irrespective of any addition I might have made to the order. In any event, again, if asked about it at the time, absent agreement between the parties, I would have said that that would be a matter for the court that dealt with any such controversy, if it came to that, and not for me at that stage.

It follows that I consider that the slip rule cannot apply to add to the compensation order any passage about penalty interest. Further, in view of Mr Duggan’s submission, it seems unnecessary anyway.

Whether the compensation order was meant to be payable “forthwith”

Next, I turn to the question whether the compensation order was meant to take effect or be payable “forthwith”, which is, I think, a bit more complex.

At the time of making the compensation order, I considered that, given the limited financial resources of both Mr Hanna and LH Holding as compared with the (far greater) magnitude of the fine imposed on LH Holding, it would be preferable that the compensation order be paid in full in priority ahead of what was overwhelmingly likely to be only partial satisfaction of the fine by LH Holding, at best. And I still do. To my way of thinking, there would be far more social utility in such an outcome. As I said in my reasons, I think that this would also be consistent with at least the spirit of s 52(2)(a) of the Sentencing Act.[33] Moreover, given what I was told by counsel for Mr Hanna and LH Holding, I expected that payment in full to Ms Tsahrelias would be made, probably by LH Holding (given what appeared to be its more liquid position than that of Mr Hanna), sooner or later, or perhaps by some agreed arrangement as to instalments over time.
[33]R v LH Holding & Hanna [2024] VSC 90 at [125]. Also, see above.

However, my use of the word “forthwith” in the footnote did not mean that I expected, or meant to order, that the compensation order would be paid immediately. The word “forthwith” does not appear at all in the transcript of any of the three days of the joint plea and compensation hearing. In fact, that word appears only once in the whole of my full reasons, and is confined to a footnote to paragraph [125]. And, as we saw earlier, what I said in that footnote was this: “For the same reasons, I would urge Mr Hanna to ensure that LH Holding pays the $120,000 ordered against it and in favour of Georgia Tsahrelias forthwith”.

My use of the word “urge” in the footnote is telling. “Urge” does not carry any connotation of command, direction, or order. Rather, in this context, it means “to press by persuasion or recommendation … ; recommend or advocate earnestly”.[34] I used the word “urge” precisely because I had not ordered that payment be made forthwith. Let me explain a little further.
[34]Macquarie Dictionary (online edition), meaning No 2.

At both the hearing and in my final reasons, I discussed at length how ss 52 and 53 of the Sentencing Act are to be considered in the sentencing exercise where a compensation order is to be made as well. In my reasons published on 6 March 2024, I set out my discussion of those issues. I extracted passages of my consideration of those issues earlier in these reasons, and shall not repeat them here. Suffice it say that my ultimate finding was that I should (and did) take the compensation order into account in the sentence as part of the respondents’ financial circumstances, but that I could do no more than urge the respondents to pay the compensation ordered forthwith. Although I considered that payment immediately was the preferable course in the circumstances, particularly given that the fine against the company well exceeded its assets and insolvency was therefore in the offing, I felt constrained to urging — to recommending earnestly — that payment occur forthwith so that Ms Tsahrelias would not miss out, either wholly or in part, rather than making an order to that effect.

Thus, in those circumstances, I can safely say that no accidental slip or omission was made by my failure to include the word “forthwith” in the order itself.

Asking Lord Herschell’s question again and answering it this time, if the non‑inclusion of the word “forthwith” had been drawn to my attention at the time of the making of the compensation order, I would not have made a correction to include it in that order.

In the result, this part of the application cannot succeed on the basis of the slip rule either.

The stay

Additionally, the compensation order was not ambiguous as to whether a stay should apply. Unless the Court “otherwise directs”, a stay applies to a compensation order during the appeal period. Section 311(2) is clear on this. The Court does not need to say anything for the stay to apply, because it applies unless an order or direction is made to the contrary. Therefore, not saying anything cannot be considered ambiguous as to its application.

Accordingly, the slip rule could not avail Ms Tsahrelias on that basis either.

Application to lift stay under s 311 of the CPA

Jurisdiction

I turn now to address the alternative application under s 311(2) of the CPA, which is for a direction lifting the stay of the compensation order that applies by force of the same provision. I shall commence with the anterior question whether, in this case, this Court has jurisdiction to give such a direction.

As will be recalled, Ms Isobel submitted that, while I would have had jurisdiction to lift the stay under s 311(2) at any time prior to the end of the 28‑day period permitted for filing a notice of appeal, this Court[35] no longer has jurisdiction to give such a direction under s 311(2) because notices of appeal have been filed by the DPP, which, it was said, means that only the Court of Appeal may now give any such direction.
[35]When considering these provisions in this matter, in order to make these reasons slightly easier to read, I shall refer only to “this Court” (meaning the Supreme Court), notwithstanding the fact that s 311(2) concerns both the Supreme Court and the County Court’s power to lift stays of their orders for compensation or restitution under the Sentencing Act.

For reasons that follow, I reject those submissions and the construction of the relevant provisions on which they depend. Instead, I am persuaded that, both before and after the filing of the DPP’s notice of appeal, this Court had, and still has, jurisdiction to order the lifting of the stay of the compensation order effected by s 311(2).

First, on a plain reading of the relevant provisions, it is apparent that s 311(2) gives this Court the power, both before and after the filing of a notice of appeal, to direct the lifting of a stay on a compensation order effected by the same provision. This is because that provision expressly provides that an order referred to in s 311(1) is stayed during the “appeal period” unless this Court otherwise directs. As we have seen, “appeal period” means the period permitted by or under the CPA or any other Act for commencing an appeal under Part 6.3 or, if a notice of appeal or notice of application for leave to appeal under Part 6.3 is filed within that period, the determination of the appeal. The DPP’s appeal against sentence is an appeal under Part 6.3. And “sentence” includes a compensation order. There is no suggestion in s 311(2) that the power given to direct the lifting of a stay is confined to the part of the “appeal period” before the filing of a notice of appeal. Nor is there any suggestion in s 311(2) that the power given by that provision is somehow taken from this Court and given exclusively to the Court of Appeal upon the filing of a notice of appeal.

Second, contrary to Ms Isobel’s submission, s 315(1)(f) of the CPA does not confer upon a single Judge of Appeal the power to lift a stay effected by s 311(2). Instead, that provision only confers upon a such a judge the power “to order stays of sentence”. In my view, that phrase cannot be construed as including a power to lift a stay. Pursuant to s 315(1)(f), a single Judge of Appeal could only order a stay of a compensation order (assuming that order to be a “sentence” within the meaning of that paragraph) if the stay effected by operation of s 311(2) had already been lifted by a direction of this Court under s 311(2). I think that the better view of s 315(1)(f) is that it is designed to extend to a single Judge of Appeal the power given to the Court of Appeal by s 309(2) to stay a sentence which, by force of s 309(1), is not stayed during the appeal period.

Third, even if I am wrong about the scope of the power in s 315(1)(f), and that it does confer upon a single Judge of Appeal the power to lift a stay effected by s 311(2), that does not mean that this Court’s jurisdiction to lift a stay is in any way confined to the period before a notice of appeal is filed or that its jurisdiction to lift a stay after the filing of a notice of appeal is ousted by s 315(1)(f). Rather, it would simply mean that both this Court and a single Judge of Appeal concurrently have jurisdiction to lift a stay effected by s 311(2).

Fourth, I do not accept Ms Isobel’s submission that the Court of Appeal — whether sitting as a single Judge of Appeal or as a Court of two or more judges — would be in a better position than the trial judge to assess an application to lift a stay of a compensation order once a notice of appeal is filed. Typically, at that stage of the process, this Court would be just as well placed as — and sometimes better placed than — the Court of Appeal to consider issues of the type listed by Ms Isobel. Those issues include the likelihood of the compensation order being set aside or altered on appeal, and the risk of irreparable harm to any party if the stay were either left in place or lifted.

Fifth, if a party to a compensation order is dissatisfied with a trial judge’s order under s 311(2), there is recourse to the Court of Appeal under s 311(4). Plainly, this provision gives the Court of Appeal power to set aside or vary any order of this Court made under s 311(2), which must include an order to lift a stay. While it is perhaps not as clear, the provision may also give the Court of Appeal the power to set aside an order by this Court dismissing an application to lift a stay, and implicitly included within that power may be a power for the Court of Appeal to make its own order lifting the stay. But, whatever the breadth of the Court of Appeal’s powers under s 311(4), there is no indication that the existence of those powers suggests that this Court lacks jurisdiction under s 311(2) to lift a stay once a notice of appeal has been filed or that, in that circumstance, the jurisdiction to lift a stay effected by s 311(2) may be exercised only by the Court of Appeal.

Sixth, I do not accept Ms Isobel’s submission that s 309 of the CPA supports the proposition that the Court of Appeal is the only court with jurisdiction to determine an application to lift a stay of compensation order once a notice of appeal has been filed. If anything, when compared and contrasted with s 311, s 309 supports the conclusion that this Court does have that jurisdiction. Let me explain.

Of course, Ms Isobel is correct in pointing out that s 309(1) provides that a sentence is not stayed during the appeal period unless the CPA otherwise provides. And she is also correct in saying that s 309(2) provides that the trial judge or, if a notice of appeal or notice of application for leave to appeal is filed, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so. But this sequence of events giving rise to jurisdiction — viz, the trial judge having the jurisdiction to order a stay of sentence prior to the filing of a notice of appeal and only the Court of Appeal having that jurisdiction post the filing of a notice of appeal — is expressly spelled out in s 309(2), whereas there is no equivalent delineation of original jurisdiction as between this Court and the Court of Appeal as to the lifting of a stay spelled out in s 311(2) or in any other part of s 311.

Further, and in any event, s 309 is quite different from s 311. Section 309 concerns the general rule that a sentence is not stayed during the appeal period but allows for the imposition of a stay in certain circumstances, whereas s 311 concerns a general rule that a particular aspect of “sentence”, as defined — relevantly, here, a compensation order — is stayed but allows for the lifting of that stay in certain circumstances.

Seventh, s 311(2) does not, of its own force, confer upon the Court of Appeal a power to lift a stay otherwise imposed by this Court under s 311(2). That is not to say that the Court of Appeal has no jurisdiction to lift any such stay. Indeed, given, for example, the terms of s 10(3) of the Supreme Court Act — “[t]he Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of [this] Court” — the Court of Appeal may well have the power to lift a stay effected by s 311(2). But only this Court[36] is expressly given this power by s 311(2).
[36]And, of course, the County Court.

Eighth, if the respondents’ construction were accepted, it would, as a matter of practicality, so constrain the power given to this Court by s 311(2) to lift a stay on a compensation order that it would defeat the purpose of that power. As Ms Isobel pointed out, the obvious purpose of a stay effected by operation of s 311(2) is to ensure that there is no payment of a compensation order prior to the finalisation of any appeal in respect of any such order. This is to prevent injustice resulting from the payment of compensation that, on appeal, may well be determined should not have been made, and, once paid, might become unrecoverable, thereby rendering any appeal nugatory in so far as it was against the making or quantum of a compensation order. Prior to knowing whether an appeal will be launched or the nature of the appeal, it would often be inappropriate for this Court to exercise its power to lift the stay of a compensation order. This is because any lifting of the stay effected by s 311(2) might defeat the public policy behind the automatic imposition of that stay in the first place. Thus, if the respondents’ submission — that this Court’s jurisdiction to lift a stay under s 311(2) arises only prior to the filing of a notice of appeal — is correct, then this Court has been granted a power which it rarely, if ever, could (or should) use.

The better view is that, pursuant to s 311(2), this Court is able to lift the stay at any point in the “appeal period”, including both before and after a notice of appeal has been filed. On this construction of s 311(2) and the related provisions, public policy would be protected and there would be a relatively quick and efficient recourse to a Court known to the parties to the compensation order. As much as the purpose of a stay effected by operation of s 311(2) is to ensure that any appeal against the compensation order is not rendered nugatory, a purpose behind the power in the same provision to direct that the stay be lifted is to ensure that a compensation order is not defeated by an impending insolvency of the offender against whom the compensation order is made. This Court, knowing the circumstances of the order’s making, and armed with knowledge of the nature and grounds of any appeal, would be in a position to assess whether or not — especially in a case like the present matter — it would be appropriate to lift the stay pending the determination of the appeal.

In the Court of Appeal, on the other hand, the person in whose favour compensation was awarded would often be a stranger to the appeal. That is the case here. On Ms Isobel’s construction, Ms Tsahrelias’s interests can be represented in that forum, but only by the DPP. Yet, as we have seen, the DPP does not consider she has a role in the current application to this Court because she was not a party to the compensation order. Further, and in any event, perhaps not until much later in the appellate process would the Court of Appeal be as well appraised of the circumstances surrounding the making of the compensation order, and until then may be unlikely to be in a position to determine whether the stay should be lifted or not. Yet, at this later point, the brief window of opportunity available to the person awarded compensation actually to recover the amount ordered may well be gone. Plainly, that risk is high in the present case — not least because of the apparently inevitable impending insolvency of LH Holding in view of the magnitude of the fine imposed on it vis‑à‑vis its limited assets. Further, if the person awarded compensation has to wait until the determination of the appeal to recover the amount ordered, the “appeal period” (within the meaning of that term in s 311(2)), by definition, will have ended. By then, the stay effected by s 311(2) would be automatically lifted, such that any application to have it lifted will have been redundant.

Finally, I note that, in construing these provisions, I have borne in mind the fact that, more often than not, compensation orders are made, not (as in this case) at the same time as sentence is imposed, but well after sentence and the time for appealing conviction and/or sentence has passed. Thus, the stay effected by s 311(2) can operate during multiple distinct periods, and the possibility of an application for a lifting of any such stay being brought exists during each of those periods. However, this consideration does not alter my view that the correct construction of s 311(2) is that it confers jurisdiction on this Court to lift a stay effected by the provision both before and after any notice of appeal is filed.

Should the stay be lifted?

I turn now to the question whether I should grant Ms Tsahrelias’s application to lift the stay currently imposed upon the compensation order by force of s 311(2).

Weighing all the factors raised by Mr Duggan and Ms Isobel, I am persuaded that it is appropriate to make a direction that the stay no longer applies to the compensation order.

While the definition of “sentence” in s 3 of the CPA means that the DPP’s appeals against sentence, as a matter of form, also capture the compensation order, it is plain — from the notices of appeal and the DPP’s written cases — that the appeals in substance are concerned only with the amount of the fine (in the case of LH Holding) and the length of the CCO and the amount of the unpaid community work hours (in the case of Mr Hanna). And while the Court of Appeal has broad powers under s 290 of the CPA to make orders on a successful appeal by the DPP, there is no suggestion — and, in my opinion, no reasonable prospect — that there would be any need to alter the compensation order were either or both of the appeals allowed. In those circumstances, the purpose of the stay effected by s 311(2) — namely, to ensure payment of compensation is not made until finalisation of a compensation order — would not be defeated by a lifting of that stay in this case. For all intents and purposes, the compensation order is finalised.

Rather, in so far as a purpose behind the power to lift a stay is to give a person awarded compensation a better chance of being paid that compensation, then that purpose is served by lifting the stay in this particular case. This is because, irrespective of the outcome of the DPP’s appeals, it appears all but inevitable that LH Holding will become insolvent as a result of the fine imposed on it, and it is therefore necessary and appropriate that the payment of compensation is prioritised ahead of payment of the fine. As I have said, there is, I think, far more social utility in ensuring that the compensation order be paid ahead of any fine. The best way for this to be achieved, in my view, is that the compensation order be paid as soon as possible, before any fine is enforced.

At the time of the making of the compensation order, the respondents were ready, willing and able to make payment. At the time of the hearing of this application, notwithstanding that it had incurred legal costs in defending the appeals and this application, LH Holding appeared to continue to have sufficient capacity to pay the compensation order in its entirety. That being the case, the compensation order should be paid now and should not await the outcome of the DPP’s appeals, by which time the funds available to the respondents may be exhausted, or at least substantially depleted.

As for the respondents’ reduced ability to pay the compensation order because of the unforeseen appeal by the DPP and the associated costs of defending those appeals, it should be noted that Mr Hanna and LH Holding each will be entitled to apply, pursuant to s 15 of the Appeal Costs Act 1998 (Vic), to the Court of Appeal for an indemnity certificate in respect of his or its own costs of the appeal. While the decision whether to grant such an application will be a discretionary matter for the Court of Appeal, such applications are commonly granted.[37]
[37]I should add, however, that whether the Appeal Costs Board would consider itself entitled to pay LH Holding’s costs of the appeal would depend on the whether the disentitling criterion in s 35A(1)(a) of the same Act applies.

In those circumstances, I consider it appropriate to grant the application and make an order directing that the stay on the compensation order be lifted.

Should the order lifting the stay be an order nunc pro tunc?

I do not, however, think it appropriate to make the order nunc pro tunc. At the time of making the order on 19 February 2024, no application was made by Ms Tsahrelias that the stay effected by s 311(2) should be lifted at that time. Nor was any equivalent application brought immediately following the filing of the DPP’s notices of appeal on 18 March 2024. The current application was not initiated until 8 May 2024, and was heard on 7 June 2024. While I appreciate that those advising Ms Tsahrelias expected that the compensation order would be paid before this time, or at least that an instalments arrangement might have been put in place, the respondents were, correctly, of the understanding that the compensation order was stayed during the appeal period,[38] albeit that they were wrong in the submission that this Court had no jurisdiction to lift that stay.
[38]I say “correctly”, as the parties did not suggest otherwise. That said, notwithstanding the definition of “sentence” in s 3 of the CPA includes a compensation order, it may be arguable that, for the purposes of s 311(2), the DPP’s appeal against sentence cannot be said to have been against the compensation order, and therefore the second part of the meaning of “appeal period” in s 3 (“if a notice of appeal … under Part 6.3 is filed within that period, the determination of the appeal”) was not engaged by the DPP’s filing of the notices of appeal. If this is correct, while there would still have been an automatic stay effected by s 311(2) during the 28‑day period permitted for appealing the compensation order aspect of the “sentence”, the filing of the DPP’s appeal against sentence (alone) could not have had the effect of extending the stay from the day of filing until the determination of the appeal. If that were all correct, then there would have been no need to bring the current application. However, since I did not understand the point to be argued, I express no concluded view on it.

In all the circumstances, I consider that it would be inappropriate to backdate the lifting of that stay prior to the making of that order.

If, as Mr Duggan submitted, penalty interest has been accruing under s 101(1) of the Supreme Court Act from the date of the making of the compensation order notwithstanding the stay of the order,[39] lifting the stay prospectively, rather than making an order nunc pro tunc, will not prejudice Ms Tsahrelias by way of interest.
[39]As indicated earlier, Mr Duggan relied on P Aker Flowerbulbs Pty Ltd v Coulter (2004) 140 FCR 410 at 417[36] for this proposition.

Also, I assume it will mean that the proceedings in respect of the statutory demand will now fall away. That should save all parties from incurring further expense.

Concluding remarks

Now that I am directing that the stay on the compensation order be lifted, the compensation order becomes payable in the usual way.

I would urge the respondents to pay that compensation in full as soon as practicable.

Notwithstanding any costs of the appeal over and above those that may be recoverable pursuant to an indemnity certificate under the Appeal Costs Act, or those incurred in the statutory demand proceedings, it would seem that, if some of LH Holding’s assets were sold off, there would be ample funds in the company alone to pay Ms Tsahrelias.

If that could not be done sufficiently quickly, perhaps a loan (at a cheaper rate than penalty interest) secured against the company’s assets could be taken out to pay Ms Tsahrelias.

Order

It is for these reasons that I made the following order on 1 July 2024:

1.Pursuant to s 311(2) of the Criminal Procedure Act 2009 (Vic), from today (1 July 2024), the Court directs that there is no longer any stay in respect of Order 1 made by this Court on 19 February 2024 in respect of the compensation order made in favour of Georgia Tsahrelias in matters S ECR 2023 0161 and S ECR 2023 0102 (namely, that the application for compensation by Georgia Tsahrelias is granted; LH Holding Management Pty Ltd (ACN 118 908 660) and Mr Hanna are ordered to pay Georgia Tsahrelias one‑hundred‑and‑twenty‑thousand dollars ($120,000) in compensation (liability for which is joint and several); and there is no order as to costs).

Costs of this application

Since both parties had sought their costs of this application (presumably, on the assumption that costs would follow the event), also on 1 July 2024, I indicated that I would determine any such application on the written submissions, unless I considered it necessary to hear oral submissions (in which case a date for hearing would be arranged in consultation with the parties).

Thus, I made the following order fixing a timetable for submissions on costs:

2.If there is to be any application for the costs of this application:
a)Ms Tsahrelias is to file and serve any written submissions on costs by close of business on Monday 21 July 2024.
b)Mr Hanna and LH Holding are to file and serve any written submissions on costs by close of business on Monday 28 July 2024.
c)Ms Tsahrelias is to file and serve any written reply on costs by close of business on Monday 4 August 2024.

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[2024] VSC 420

17 July 2024