In the matter of an application by Aiden Davis (a pseudonym) (No 2) [2025] VSC 450 (4 August 2025)

1. On 1 July 2025, an application for a stay of this proceeding and a related proceeding was heard and determined. It was dismissed.[1]
2. That application had been made by Aiden Davis (a pseudonym) ("the Applicant"). He contended he was entitled to a stay on the basis that junior counsel who had been previously briefed to act for, and appeared on behalf of, the Chief Commissioner of Victoria Police ("the Commissioner") in this proceeding and an earlier related proceeding respectively, had previously been retained to act for the Applicant.
3. This retainer to act for the Applicant related to charges that had been laid against the Applicant. To put the matter neutrally, it had been formerly suspected the facts relating to those charges may have had some connection with the subject matter of the proceeding in which junior counsel previously appeared for the Commissioner.[2] That earlier proceeding concerned an application by the Commissioner for a coercive powers order under the Major Crime (Investigative Powers) Act 2004 (Vic).[3] Upon the issue of junior counsel's potential conflict of interest being raised in this proceeding, junior counsel immediately ceased to act.
4. Further details underlying the basis upon which the stay application was made were touched upon in the ruling refusing the stay.[4] It is unnecessary to go much beyond the limited reasons provided on this point on the previous occasion.[5]
5. Suffice to say, the Applicant originally made an application to have the court revoke a coercive power order it had previously made ("the Revocation Application").[6] That application was also returnable on 1 July 2025. Upon the stay application being dismissed, the Applicant chose to make a short statement and then "respectfully remove [him]self from the hearing" by leaving the courtroom. It was pointed out to the Applicant before he left the bar table that the Revocation Application was still before the court. Despite this, the Applicant did not move the court with respect to the Revocation Application.
6. Thus, on 1 July 2025, an order was also made dismissing the Revocation Application, expressly on the basis that there had been no adjudication on the merits.[7]
7. A timetable was ordered for the filing of submissions on the question of costs. Both the Commissioner and the Applicant filed submissions. They were informed that the matter would be dealt with on the papers. No exception was taken to this course.

1. Section 24 of the Supreme Court Act 1986 (Vic) provides:

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, costs of and incidental to all matters in this Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full powers to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.[8]

1. The power regarding costs must be exercised judicially.[9] The broad discretion must be exercised by reference only to relevant considerations and based upon facts connected with or leading up to the litigation.
2. Generally, in proceedings that are not criminal proceedings, the rule is that costs should follow the event. Unless disqualifying conduct exists, a successful party should recover its costs even where it has not succeeded on all heads of claim.[10] That said, the flexibility of the discretionary power permits the court to examine the realities of the case and do substantial justice between the parties on the question of costs.[11]
3. The broad statutory power to award costs pursuant to section 24 applies to criminal proceedings.[12] However, how that power is to be exercised is informed by section 24(2). Plainly, the legislature intended a manifestly different approach in relation to criminal proceedings, reflected by the well-established general practice in criminal proceedings that the Crown neither gives or receives costs.[13] In addition to the absence of any power at common law to award costs to or against any public or private prosecutor, the underlying policy behind this practice is that an accused is entitled to put the prosecution to proof without risking her or his assets (beyond personally incurring any legal costs in defending the allegations); and that position is reciprocated.[14]
4. Although section 24(2) is confined to the practice in criminal proceedings, the existence of that practice may also inform the court as to how its discretion should be exercised in quasi-criminal proceedings,[15] or proceedings that are related to criminal proceedings or quasi-criminal proceedings.[16] Naturally, each case must be considered according to its own particular facts and circumstances.

C. The costs application, further evidence and submissions

1. The Commissioner does not seek any costs order concerning the stay application. This was an appropriate position to adopt. The involvement of junior counsel previously briefed by the Commissioner gave rise to real issues concerning his ability to act on a proper basis.[17] Also appropriately, the costs referrable to this junior counsel in this proceeding are not sought.
2. In an affidavit filed on behalf the Commissioner, the court was informed that it was considered appropriate to brief senior and junior counsel to act on behalf of the Commissioner concerning the Revocation Application. The view was formed that the Revocation Application had the potential to impact police investigations or potential prosecutions, as well as raise novel legal issues (including what considerations a court should take into account when determining whether a coercive powers order should be made or revoked).
3. Further, as a consequence of the Revocation Application, the Chief Examiner refrained from considering the issue of further witness summonses and conducting examinations until the matter was resolved.
4. In response to the Applicant's evidence that he is unemployed[18] and has no significant financial obligations or debts, the Commissioner acknowledged he was unaware of the Applicant's full financial circumstances. However, evidence was adduced of police seizing $167,300 in cash and receipts for ingots from a safety deposit box held by the Applicant's bank. These were returned to the Applicant in August 2023 upon certain charges being withdrawn. Based on this evidence, the Commissioner submitted the Applicant would be unlikely to be destitute or without funds if a costs order were made.
5. The Commissioner relied upon the proceeding by which the coercive powers orders were obtained being administrative rather than judicial;[19] and thus upon them not being "ordinary criminal proceedings".[20] While it was correctly accepted that this point was not decisive, the Commissioner referred to an earlier costs ruling by which both the Commissioner and the Chief Examiner were awarded costs upon a revocation application under section 12 of the Major Crime (Investigative Powers) Act being dismissed.[21] In so doing, the trial judge in that case simply noted that he was not satisfied there was any basis for departing from the normal rule of costs following the event.[22]
6. The Commissioner submitted that the Revocation Application was weak and without merit. Although there has been no adjudication by the court, it was submitted the lack of merit was relevant in considering whether to award costs. Further, the Applicant's decision not to prosecute the Revocation Application was relied upon in submitting that his conduct had resulted in a waste of public resources and the court's time. It was submitted the court should discourage such behaviour, which provided an additional reason for costs to be awarded against the Applicant.
7. Quite properly, the Commissioner referred to decisions that indicate that, in determining whether or not a proceeding is criminal or civil, the substance of the matter must be considered.[23] It has been held that a statutory procedure which is part of the weaponry available to members of the police force to investigate crime was "criminal in nature".[24] Further, it was acknowledged that an application under section 12 of the Major Crime (Investigative Powers) Act was subject to order 13 - Major Crime (Investigative Powers) Rules - of the Supreme Court (Criminal Procedure) Rules 2017 (Vic) ("the Criminal Procedure Rules").
8. Again properly, it was accepted that the matters raised by the Applicant's stay application were issues that were appropriate to bring to the court's and the Commissioner's attention.
9. In summary, the Commissioner submitted the court should exercise its general discretion to award costs pursuant to section 24(1) of the Supreme Court Act and follow authority of this court[25] in applying the normal rule that costs should follow the event in respect of a proceeding instituted to seek revocation under section 12 of the Major Crime (Investigative Powers) Act.
10. In resisting costs being awarded against him, the Applicant noted that in the Commissioner's submissions filed 25 June 2025, costs were not sought.[26] It was submitted that a crucial aspect of fairness in litigation, especially with self-represented litigants, was that parties were adequately informed about the potential for adverse costs orders. In an affidavit filed in opposition to the costs application, the Applicant deposed that, if he had been properly informed about the potential liability for costs, it would have significantly impacted his assessment of the risks associated with pursuing the Revocation Application.
11. The Applicant referred to his medical condition, stating it was serious, ongoing and permanent. The medical reports relied upon referred to Davis suffering from persistent depressive disorder with anxious distress, a diagnosis of DSM-5 of somatic symptom disorder, and lumbar disc damage causing chronic back pain.
12. The Applicant submitted serious professional misconduct and a conflict of interest had been exposed as a result of this proceeding. It was contended that seeking costs was only done in response to the Applicant raising the conflict of interest, and noted issues previously raised by him in his primary submissions about malicious or spiteful prosecution. It was submitted the application for costs was not motivated by the proper administration of justice.
13. Further, the Applicant submitted only a small amount of information had been filed in support of the Revocation Application, and that the hearing on 1 July 2025 was conducted efficiently.
14. Furthermore, the Applicant submitted it was unclear how the Commissioner was seeking costs that did not include the stay application in circumstances where costs were only sought after the conflict of interest had been raised. In that regard, it was submitted it was reasonable to conclude that the issue of conflict triggered the costs application "and contention between the remaining Counsels (sic) and the ... Commissioner". In circumstances where the Commissioner had accepted that it was appropriate to raise the issue of conflict with the court and the Commissioner, it was contended any costs should not be visited on the Applicant but rather ought to be borne by "conflicted former Counsel".
15. Moreover, it was noted that in criminal proceedings the general rule is that costs are not awarded to either party. It was contended that the Applicant had an inherent right to access to justice and to challenge the legality or appropriateness of the coercive powers order, specifically by questioning its ancillary nature. The Applicant referred to the secretive nature of the Major Crime (Investigative Powers) Act and the confidential hearings conducted by, and undisclosed information filed with, the court. In light of this, it was submitted that the Applicant was not in a position to be able to understand or ascertain the nature, necessity or volume of material the Commissioner is claiming to have filed or in relation to which costs are sought.
16. In addition, it was submitted that the fact that a hearing was held on 1 July 2025 indicated the court had made an initial determination that the matter had sufficient merit to warrant consideration and therefore it was not vexatious, frivolous or an abuse of process.

1. It is convenient to deal with the Applicant's last point first. Before the hearing was held on 1 July 2025, the court had made no assessment of whether or not the Revocation Application was vexatious, frivolous or an abuse of process. In short, the procedural steps prescribed by the Major Crime (Investigative Powers) Act were adopted without any consideration of the merits of the Revocation Application.[27]
2. Further, nothing turns on the fact that the Commissioner did not expressly refer to costs when the written submissions were filed on 25 June 2025. Plainly, the Applicant was ultimately on notice before the hearing was conducted that costs would be sought and he has had the ability to make costs submissions in response. Accordingly, the application will be dealt with on the merits.
3. Furthermore, there is no basis to conclude that costs have been sought by the Commissioner maliciously or for some improper purpose. Although the Applicant correctly submitted that the initial submissions filed on behalf of the Commissioner did not refer to costs, that position changed before the hearing was conducted. If it be that the Commissioner did in fact alter his position,[28] generally speaking a party to a proceeding is entitled to do so without the court imputing any improper purpose unless there is some proper basis for doing so. There is simply no evidence of an inappropriate agenda on the Commissioner's part concerning costs, or any plausible basis to draw an inference to that effect.
4. However, the Commissioner's submission that there is some broader purpose to be served by awarding costs in his favour on this occasion is of limited relevance. Notwithstanding the fact that the Major Crime (Investigative Powers) Act has been in operation for approximately 2 decades, the Commissioner was only able to refer to a single decision of this court where costs were sought and awarded upon the dismissal of an application for revocation of a coercive powers order. In short, there does not appear to be a history of a series (or even a small number) of unmeritorious applications for revocation being made such that there is an unsatisfactory practice or course of conduct that needs to be discouraged in determining this costs application. Specifically with respect to the Applicant, the Revocation Application is the only revocation application he has made.
5. In addition, the delay in investigations and any proposed examinations could only be described as incidental. Without descending to the detail, the events which gave rise to the coercive powers order being made allegedly occurred a number of years ago. The period of time between the witness summons being served on the Applicant and the Revocation Application being dismissed was 7 weeks and 4 days. Beyond the fact of the short delay itself, no prejudice was identified by the Commissioner.
6. Finally, to the extent it might be said to be relevant, no meaningful assessment could be made about the extent to which the Applicant might experience financial hardship if a costs order were made. It is accepted that the Applicant is currently unemployed and has been for some time, and that he has various ongoing medical issues. However, it has not been established that he would not be able to pay the amount of any costs awarded against him. That said, the fact that the Applicant had $167,300 returned to him in August 2023 does not give rise to any presumption that if an award of costs were made in the Commissioner's favour that that would not cause hardship to the Applicant.

1. Turning to the merits of the application, the Commissioner correctly submitted that proceedings under the Major Crime (Investigative Powers) Act for an application for a coercive powers order is administrative in nature. However, determining the true nature of the proceeding giving rise to the Revocation Application is not the end of the enquiry.[29] In circumstances where the court has not had the benefit of submissions on this issue from opposing counsel, there is a reticence to make a finding on the precise nature of this proceeding unless absolutely necessary.
2. For the reasons referred to below, it is not necessary to definitively determine the true nature of this proceeding. However, some relevant observations must be made.
3. The Supreme Court (General Civil Procedure) Rules 2015 (Vic) ("the Civil Procedure Rules") contain specific provision for the award of costs under section 24 of the Supreme Court Act in relation to proceedings before the court.[30] Rule 63.02 provides that the power and discretion as to costs under section 24 "shall be exercised subject to and in accordance with this Order" (emphasis added).[31]
4. In relation to the relevant procedural rules for this proceeding,[32] the object of the Criminal Procedure Rules is to provide procedures for matters in this court under the Crimes Act 1958 (Vic) and the Criminal Procedure Act 2009 (Vic) "and under other legislation relating to matters of a criminal, quasi-criminal or related nature" (emphasis added).[33] Applications under Part 2 of the Major Crime (Investigative Powers) Act are required to be made to a judge sitting in the criminal division.[34] The applications under the Act are to be filed in accordance with forms prescribed by the Criminal Procedure Rules; and are filed in the criminal registry of the Supreme Court.
5. Although not a criminal proceeding, there could be no controversy that the nature of this proceeding could be properly referred to as being, at the very least, of a "related nature" (and hence that is why the procedures governing this proceeding fall within the ambit of the Criminal Procedure Rules). There is no provision in the Criminal Procedure Rules which provides for the exercise of power or discretion relating to costs.
6. Although the power to make a costs order in a criminal or quasi-criminal proceeding (or a related proceeding) plainly exists,[35] there must be a further question as to whether the normal rule of costs ordinarily following the event applies, and, if applicable with the same starting point,[36] if it should be applied as readily as in a case governed by the Civil Procedure Rules or other regimes where the normal rule applies.
7. In BCD v Chief Examiner,[37] Kyrou J appeared to have little hesitation in applying the normal rule that the costs follow the event after dismissing a revocation application under section 12. His Honour's reasons simply stated that he was not satisfied there was any basis for departing from the normal rule. However, the circumstances of the case were quite different to those at hand. That application was the subject of full argument, and was dismissed on the basis that the court did not have any jurisdiction to entertain the application. The applicant persisted with the application despite the facts demonstrating that the lack of jurisdiction was readily apparent long before the hearing. Further, costs were only resisted on the basis that it was submitted the issues raised were difficult and had not been previously considered by the court.[38] It would appear that no submissions were directed towards the true nature of the proceeding in question.
8. In contrast, the Revocation Application was not the subject of any substantive argument. Although the Commissioner has invited the court to consider the merits in determining the question of costs, I do not consider I am in a position to properly do so. Plainly, some matters put by the Applicant were without substance and could be readily discarded. However, in circumstances where there are a number of undetermined facts that have been legitimately raised, it is not possible to say with any certainty how the Revocation Application may have ultimately been determined insofar as the Applicant sought to obtain a revocation order so that the coercive powers order did not operate to affect him.
9. Further, the Revocation Application was not pressed by the Applicant in circumstances where a real issue of conflict of interest had been raised by him. Having discovered that position, the Applicant chose another course; namely, to seek a stay.[39] There could be no suggestion that the Applicant could have foreseen what was revealed on 25 June 2025 when the Commissioner's written submissions were filed and served, and the involvement of junior counsel was first disclosed. Thus, it could not be said that the Applicant should have adopted a different course before this time or at any time up until junior counsel's affidavit was served on the Applicant on the morning of the hearing on 1 July 2025.[40]
10. Furthermore, the making of the Revocation Application had the consequence that junior counsel was required to return the brief in relation to this proceeding. Undoubtedly, it will also mean that this barrister will have no further involvement in any examinations or related proceedings that may unfold as a result of the coercive powers order having been made. Based on the affidavit filed by junior counsel, it is highly likely that the issues raised by the Applicant would have gone unchecked (in light of the fact that the barrister has deposed as to his lack of recollection of the relevant matters until they were raised by the Applicant).
11. Accordingly, the making of the Revocation Application and its prosecution right up until the day before the hearing has resulted in matters being able to be regularised concerning any proceedings or related matters connected with the coercive powers order made last year. It is trite that the court has a duty to maintain the due administration of justice and protect the integrity of the judicial process,[41] including by preventing a barrister appearing for a party if that is appropriate to ensure that justice may not only be done but be seen to be done.[42] This duty is always at the forefront of the court's concerns, including in relation to hearings of applications for coercive powers orders which are heard ex parte in a closed court.[43]
12. Thus, the interests of justice have been served as a result of the making of the Revocation Application.
13. Finally, the hearing on 1 July 2025 was taken up almost entirely with matters relating to the stay application and junior counsel's conflict of interest. Once that had been heard and determined, the remaining matters were dealt with briefly. Although costs were undoubtedly incurred before this time referable only to the Revocation Application, for the reasons stated in the preceding paragraphs, the steps involved were a necessary part of the Applicant, the Commissioner and the court all being alerted to the issue with junior counsel. Contrary to the Commissioner's submissions, it was not a waste of public resources or the court's time for these matters to have been ventilated.
14. It follows that, taking the matters raised into account, including the preliminary matters referred to above, in the highly unusual circumstances of this case it is appropriate that there be no order as to costs. This determination has been made on the assumption (without deciding) that the normal rule that costs should ordinarily follow the event is applicable.

E. A further issue - certification under section 295 of the Criminal Procedure Act

1. By email sent on 21 July 2025, the Applicant invited me (as the judge who ruled on the stay application) to certify that he may seek leave to appeal the dismissal of the stay.
2. On 22 July 2025, the Applicant was told by reply email from my chambers that he was not entitled to receive any certification.
3. Certification was declined because section 295 of the Criminal Procedure Act only applies to, relevantly, a proceeding in the trial division of this court for the prosecution of an indictable offence.[44] Self-evidently, this process of certification has no applicability to an application made pursuant to section 12 of the Major Crime (Investigative Powers) Act.

(1) There will be no order as to costs with respect to the Revocation Application.

(2) There will be no certification under section 295 of the Criminal Procedure Act.

[1] In the matter of an application by Aiden Davis (a pseudonym) [2025] VSC 403.

[2] In recounting this, no factual finding is made about whether in fact any connection existed.

[4] [2025] VSC 403, [3]-[6].

[5] Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; (2008) 20 VR 481, 484 [12] (Maxwell P and Kellam JA).

[6] See Major Crime (Investigative Powers) Act, s 12.

[7] Further orders were made that are not relevant to the question of costs.

[8] Criminal proceeding is not defined in the Supreme Court Act.

[9] That is, in a just and fair manner, with judicial detachment: Love v Attorney-General (NSW) (1990) 169 CLR 307, 322.7 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

[10] Chen v Chan (No 2) [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA) and the cases there cited.

[12] Commonwealth Director of Public Prosecutions v Brady [2019] VSC 397, [38]-[39] (Hollingworth J), following R v Garth [2008] VSCA 252; (2008) 21 VR 203, 209 [27] (Nettle JA, with whom Maxwell P and Weinberg JA agreed).

[13] Ibid, [46]; Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 266 [40] (Phillips JA, with whom Charles JA agreed).

[14] Ibid, [47]-[49], and the cases there cited.

[15] As to the meaning of "quasi-criminal", albeit in a different contexts, see Gentner v Police Registration and Services Board & Anor [2024] VSC 507, [1] (McDonald J); Western Truck Towing Pty Ltd v Magistrates' Court (Vic) [2014] VSC 88, [17], [32]-[34] (Ginnane J); Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294, [53]-[55] (Goldberg J).

[16] See, for example, Commissioner of Australian Federal Police v Opal Storm Pty Ltd [2018] VSCA 301, [72]-[73] (Priest, Ashley and Weinberg JJA). See further fn 24 below.

[17] In making this observation, no finding is made concerning whether or not junior counsel had acted improperly before becoming aware of the issues as raised by the Applicant on 30 June 2025.

[18] The Applicant deposed that this was due to a serious ongoing medical condition suffered in 2015 as a result of a work-related injury, though he has been able to secure some employment from time to time since then.

[19] See McLeod-Dryden v Supreme Court of Victoria [2017] VSCA 60, [17] (Priest, Santamaria and McLeish JJA), referring with approval to Director of Public Prosecutions v Debono [2012] VSC 350, [42]-[78] (Kyrou J).

[20] It was also noted that criminal proceedings are to be commenced in one of 3 specific ways, none of which involve filing an application pursuant to s 12 of the Major Crime (Investigative Powers) Act: see Criminal Procedure Act 2009 (Vic), s 5.

[21] BCD v Chief Examiner [2012] VSC 193.

[23] See, for example, Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, 156.6 (Viscount Simon LC); Watt; Ex parte Slade [1912] ArgusLawRp 17; [1912] VLR 225, 241.7-242.4 (Cussen J).

[24] Kirsch v Dolman [2001] VSC 234; (2001) 123 A Crim R 331, 334 [30] (Gillard J). This case was concerned with an application under the Appeal Costs Act 1998 (Vic), rather than the question of a costs award between the parties. A certificate was refused on the basis that judicial review of a compulsory sampling procedure order was not a civil proceeding within the meaning of s 4(1) of that Act.

[25] See fn 22 above.

[26] In written submissions filed on 30 June 2025 settled by counsel including the new junior counsel, it was stated for the first time that the application should be dismissed "with costs".

[28] This is not clear as it may have been intended to seek costs all along despite this not being referred to in the first set of written submissions.

[29] See, for example, fnn 23-24 above.

[30] See order 63. The definition of "proceeding" in the Civil Procedure Rules is broad, namely "any matter in the Court commenced by writ or originating motion or as otherwise provided by or under any Act or these Rules": r 1.13(1).

[31] The Civil Procedure Rules (being Chapter I of the Rules of the Supreme Court) are concerned with general rules of procedure in civil proceedings: rr 1.01(2), 1.05(1); and do not apply to a civil proceeding to which any other Chapter of the Rules of the Supreme Court applies, except as that other Chapter provides. Civil proceeding is not defined in the Civil Procedure Rules (or the Supreme Court Act or the Interpretation of Legislation Act 1984 (Vic)). However, it is defined in s 3 of the Civil Procedure Act 2010 (Vic) as meaning "any proceeding in a court other than a criminal proceeding or a quasi-criminal proceeding.

[32] That is, in addition to the procedures prescribed in the Major Crime (Investigative Powers) Act.

[35] See par 11 above.

[36] See, for example, Commissioner of Australian Federal Police v Opal Storm Pty Ltd [2018] VSCA 301, [72]-[73] (Priest, Ashley and Weinberg JJA)

[37] [2012] VSC 193, [28].

[39] The Applicant indicated to the court that he intended to appeal the dismissal of the stay application.

[40] Junior counsel's affidavit was not filed until after the hearing and was only available to the Applicant a matter of minutes before the hearing commenced.

[41] This includes judges performing administrative roles as part of their duties as judges.

[42] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452.3 (Mandie J) and the cases there cited.

[43] Major Crime (Investigative Powers) Act, s 5(8). See also s 7.