Plaintiff v First Defendant

2 After publishing my reasons, I gave a preliminary indication to counsel that I proposed to make an order on the usual basis that the unsuccessful party, the second defendant, Domain Aged Care (Services) Pty Ltd ('Domain'), bear the plaintiff's costs of and incidental to the proceeding.[1]

3 Domain, by its counsel, then applied for an indemnity certificate in respect of costs pursuant to s 4(1) of the Appeal Costs Act 1998 (Vic) ('the Act').

4 Although Celsius did not oppose the granting of an indemnity certificate in respect of costs, its junior counsel properly drew to the Court's attention the fact that the entitlement to an indemnity certificate under s 4(1) of the Act is limited to decisions of a court in a civil proceeding. Celsius questioned whether the underlying proceeding in this case, which it characterised as the prosecution of an alleged breach of s 26 of the Occupational Health and Safety Act 2004 (Vic) ('OHS Act'), meant that the contest about the subpoena for production of documents ('the subpoena') issued by Celsius against Domain, and ruled on by the magistrate, was 'a decision of a court in a civil proceeding'.

5 Pursuant to leave, Celsius and Domain each filed written submissions on the issue. I have now had the opportunity to consider these written submissions.

(a) the present proceeding is a not a 'civil proceeding' for the purposes of s 4 of the Act;

(b) in order to determine the true nature of the proceeding, the authorities require the Court to 'determine the substance of the matter which is the underlying proceeding in respect of which judicial review is applied';[2]

(c) there is only one proceeding 'underlying' the present judicial review proceeding and that is the prosecution of Celsius for an offence under the OHS Act in the Magistrates' Court, proceeding No G12395591 ('Magistrates' Court Proceeding'), which is a criminal proceeding; and

(d) the subpoena was issued in that criminal proceeding and the application by summons to set aside the subpoena was filed in that criminal proceeding.

(a) the proceeding is a civil proceeding for the purposes of s 4 of the Act;

(b) the application to set aside the subpoena, which was brought by way of summons filed by the second defendant in the Magistrates' Court proceeding, was filed under r 46.04(1) of the Magistrates' Court (General Civil Procedure) Rules 2010 (Vic);

(c) the subject of the appeal concerned the magistrate's comments in the setting aside application and not the criminal prosecution in which Celsius is defendant;

(d) the summons in the setting aside application was served on Celsius and not on the informant (Victorian WorkCover Authority ('VWA')) as prosecutor in the criminal proceeding;

(e) Domain is not a party to the criminal prosecution between the Victorian WorkCover Authority and Celsius;

(f) the issue of the validity of the subpoena was limited to a dispute between two separate corporate entities;

(g) Domain is not in close proximity to the criminal prosecution between the VWA and the plaintiff (cf. Commissioner of Australian Federal Police v Magistrates' Court of Victoria & Ors ('Di Pietro'))[3] and did not undertake any investigative function giving rise to the criminal proceeding;

(h) the appeal was against a decision of a court in civil proceedings, not involving a decision in the criminal proceedings between the VWA and Domain;

(i) the documents sought by Celsius merely related to Domain's own operations; and

(j) the Court should make an order pursuant to s 4 of the Act granting Domain an indemnity certificate in respect of its costs.

Application by respondent for indemnity certificate in respect of appeal

(1) If an appeal against a decision of a court in a civil proceeding -

(a) to the Trial Division of the Supreme Court; or

(b) to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; or

(c) to the High Court of Australia from a decision of the Supreme Court -

succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.

9 Both Celsius and Domain submit that a proceeding seeking judicial review falls within the definition of 'appeal' under s 4 of the Act, which includes 'any proceeding in the nature of an appeal'. I accept these submissions. It appears to be settled law that a judicial review proceeding brought in the court's original jurisdiction is a 'proceeding in the nature of an appeal' for the purposes the Act.[4]

10 The main question for determination is whether the appeal is 'against a decision of a court in a civil proceeding'.[5]

11 In deciding whether the proceeding in this Court is civil or criminal in nature for the purposes of the Act, it is necessary to consider the substance of the matter which is the underlying proceeding in which the relevant claims were made.[6] The question of whether a proceeding is civil or criminal for this purpose has been considered in many cases. Several of these are mentioned below.

12 Kirsch was a proceeding for judicial review of an order made by a magistrate requiring the plaintiff to undergo a compulsory procedure, pursuant to s 464T of the Crimes Act 1958 (Vic), requiring a physical examination or the taking of a sample from a person suspected of a crime.[7]

13 An indemnity certificate was refused because the application and the order were part of procedures which could lead to criminal charges being laid, and it was thus held that the judicial review was in respect of a matter which was criminal in nature.

14 Siddique v Martin was a proceeding for judicial review of a magistrate's refusal to order the release of paintings seized by police from residential and business premises during the execution of two search warrants. The paintings were not specified in the warrants and were seized along with paintings that were.[8]

15 At first instance, it was held that the magistrate was correct to find his powers under s 78(6) of the Magistrates' Court Act 1989 (Vic) did not extend to directing that items not listed in the warrants, but which had been seized in the course of executing those warrants, should be returned to Mr Siddique. The Court of Appeal granted Mr Siddique leave to appeal and allowed his appeal against this decision, concluding that the magistrate's powers under s 78(6) of the Magistrates' Court Act (Vic) did extend to directing that such items should be returned to Mr Siddique.

16 The respondent in the appeal, Detective Senior Constable Martin, applied for an indemnity certificate in respect of costs pursuant to s 4(1) of the Act.

17 An indemnity certificate was granted by majority decision of Tate JA, with whom Ferguson JA (as her Honour then was) agreed (Cavanough AJA dissenting). The majority took the view that the underlying proceeding was an application by Mr Siddique for recovery of private property belonging to him; and that the proceeding was essentially of the same character as a proceeding in tort for recovery of private property for conversion or detinue, and was therefore properly characterised as a civil proceeding for the purposes of the Act.

18 In Siddique, the majority distinguished Kirsch because the judicial proceeding in that case (being the review of an order permitting the taking of a sample) formed part of procedures which could lead to criminal charges being laid and heard.[9] In contrast, in Siddique, there was no criminal charge brought with respect to the relevant paintings and no indictable offence alleged to found a criminal proceeding was based upon the relevant paintings; the only indictable offence with which Mr Siddique was charged and convicted related to property that was named or described in the warrant. The majority of the Court of Appeal took the view that the connection with any criminal charge was too remote to deprive the proceeding of civil character for the purposes of s 4(1) of the Act.[10]

19 Di Pietro was a proceeding which involved the second defendant, Mr Di Pietro, being charged with a criminal offence. As part of its investigation, the AFP had obtained warrants to intercept Mr Di Pietro's telephone transmissions. Mr Di Pietro caused a witness summons to be issued seeking production of documents from the Commissioner, including affidavits sworn in support of the application for the intercept warrants. The Commissioner objected to the production of the affidavits. The magistrate dismissed the objection. The Commissioner sought judicial review and the magistrate's orders were quashed. Mr Di Pietro applied for an indemnity certificate under s 4(1) of the Act. The Court held that Mr Di Pietro was not entitled to a certificate as he was not the respondent to an appeal in a civil proceeding; that the witness summons directed towards the Commissioner at Mr Di Pietro's instance was patently part of the underlying criminal matter, whose purpose, at least in relation to the affidavits, was to endeavour to determine the legality or otherwise of the telephone intercepts upon which the Crown case relied. It was held that the proceeding was criminal in nature and therefore did not answer the description of 'civil proceeding' for the purposes of the Act.[11]

20 As each case turns on its own facts, discussion of other cases is not necessarily of great utility. That said, this case is unlike Siddique, where the relevant seized paintings were extrinsic to the prosecution of Mr Siddique. As the prosecution related only to paintings described in the relevant search warrants, they could have had no effect upon it.

21 In Di Pietro, the subpoena was intrinsic to the prosecution in the sense that its purpose was to determine the legality or otherwise of telephone intercepts upon which the Crown case relied; furthermore, the informant was the respondent to the subpoena.

22 It is true, as Domain submits, that unlike the facts in Di Pietro, Domain is not in close proximity to the criminal prosecution of Celsius, is not party to the prosecution, and did not undertake any investigative function giving rise to the criminal proceeding.

23 There is nevertheless a direct connection with the subpoena and the prosecution of Celsius for a criminal offence. Celsius sought production of documents by causing the subpoena to be issued and served in the proceeding for the ultimate purpose of facilitating its defence to the charge.[12]

24 Without expressing any view on the merits of the setting aside application, it is arguable that the subpoena has the potential to reveal documents which may affect the outcome of the prosecution. In this regard, I note that the duty to ensure that the workplace is safe and without risk to health under s 26(1) of the OHS Act applies only in relation to matters over which the person has management or control. To the extent that the documents shed light on whether there are 'matters over which (Celsius) has management or control', they will likely have relevance to the prosecution case or its defence. Alternatively, if the charge is found proven, the documents may provide material relevant to a plea in mitigation of penalty.

25 In the Magistrates' Court Proceeding, Celsius, as the sole defendant, is charged with one count of breaching s 26(1) of the OHS Act_._ Section 26(2) provides for a penalty of 9000 penalty units for a body corporate. Section 26(3) provides that an offence against s 26(1) is an indictable offence. A note to the section indicates that the offence may be heard and determined summarily pursuant to s 28 of the Criminal Procedure Act 2009 (Vic).[13]

26 Domain seeks to rely on the fact that it made an application by summons seeking to set aside the subpoena using the procedures prescribed by r 46.04 of the Magistrates' Court General Civil Procedure Rules 2010 (Vic) as definitive of the nature of the proceeding as 'civil' for present purposes. However, the fact that the application initiated within the proceeding (by summons seeking to set aside a subpoena) adopted procedures used in civil proceedings, or the fact that the Court dealt with the application for judicial review within its common law division, does not alter the substance of the underlying proceeding.[14]

27 It does not matter that the informant was not party to the application to set aside the subpoena or that Domain is not also being prosecuted, as was the case in Di Pietro. Neither circumstance changes the governing consideration, which is characterisation of the nature of the underlying proceeding in which the application is made. In this case, the underlying proceeding in which the application is made is a prosecution for an indictable offence under the OHS Act, which is criminal in nature, not civil.

28 It follows that it is not open for me to grant an indemnity certificate in respect of costs pursuant to s 4(1) of the Act in this matter. This is regrettable because the error of law made below was not due to the fault of the unsuccessful respondent Domain. As indicated above I had initially intended to make the usual order for costs in favour of Celsius (the successful party on the appeal), but upon reflection I consider that it is not appropriate to make an order for costs either in favour of Celsius or against Domain; the appropriate exercise of discretion is to make no order as to costs.

[1] The first named defendant, the Magistrates' Court of Victoria, was joined as a necessary party. In accordance with normal practice, the Magistrates' Court informed this Court that it did not propose to participate in the judicial review and that it would abide the decision.

[2] Submissions of Celsius in respect of Appeal Costs Act dated 4 February 2020, [10]; cf Kirsch v Dolman [2001] VSC 234; (2001) 123 A Crim R 331, [38] ('Kirsch') ('The court must consider the substance of the matter which is the underlying proceeding in respect of which judicial review is applied') (emphasis added); Siddique v Martin (No 2) [2016] VSCA 310, [5] ('Siddique (No 2)') ('[I]t is necessary to consider the substance of the matter which is the underlying proceeding in which the relevant claims were made') (emphasis added).

[3] [2011] VSC 49.

[4] See R v Marshall; Ex parte Baronor Nominees Pty Ltd [1984] VicRp 17; [1984] VR 211, 227-8; Kirsch [2001] VSC 234; (2001) 123 A Crim R 331, [45]; Dawson v Bethonga Whole Foods Pty Ltd [2009] VSC 172, [20]-[27]; Gatto v Felstead [2012] VSCA 14, [32]; Siddique (No 2) [2016] VSCA 310, [26] (including the cases cited therein).

[5] Section 4(1) of the Act.

[6] Kirsch [2001] VSC 234; (2001) 123 A Crim R 331, [36]-[38]; Siddique (No 2) [2016] VSCA 310, [5] (Tate JA), [23] (Ferguson JA), [30] (Cavanough AJA, dissenting on the outcome, but not on the principle).

[8] Siddique v Martin [2015] VSC 423, [1].

[9] Siddique (No 2) [2016] VSCA 310, [13]; Kirsch [2001] VSC 234; (2001) 123 A Crim R 331, [30].

[10] Siddique (No 2) [2016] VSCA 310, [14].

[11] Commissioner of Australian Federal Police v Magistrates' Court of Victoria & Ors ('Di Pietro') [2011] VSC 49, [10], [23] (J Forrest J).

[12] Celsius' Written Outline of Submissions dated 29 March 2018, CB 41, 42.

[13] See Criminal Procedure Act 2009, sch 2, item 20.

[14] See also Siddique (No 2) [2016] VSCA 310, [30].