Plaintiff v First Defendant

2 Among other things, it was ordered that Mr Grivas and Mr Filonis each pay the DPP's costs on a standard basis to be assessed by the Costs Court in default of agreement.[2]

3 Later that day, counsel for Mr Filonis emailed the Court to the effect that he had overlooked applying for an indemnity certificate under the Appeal Costs Act 1998 (Vic) (the 'Act'). A timetable came to be ordered for the exchange of written submissions with a view to such an application being determined on the papers.

4 I should note that it was confirmed on behalf of Mr Grivas that he did not make such an application.

5 In written submissions, Mr Filonis relied upon s 15B of the Act, which provides as follows -

15B Application for indemnity certificate by respondent if interlocutory appeal by prosecution

(1) If the prosecution appeals under section 295 of the Criminal Procedure Act 2009, the respondent to that appeal may apply to the Court of Appeal for, and the Court of Appeal may grant, an indemnity certificate in respect of -

(a) the respondent's own costs of the appeal; and

(b) if a new trial is ordered, any additional costs that the respondent will pay, or will be ordered to pay, as a consequence of the order for a new trial.

(2) A respondent granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the respondent in the approved form -

(a) an amount equal to the respondent's own costs of the appeal; and

(b) any additional costs that the respondent pays, or is ordered to pay, as a consequence of the order for a new trial -

that the Board considers to have been reasonably incurred.

6 In that regard, Mr Filonis accepted that the nature of the present 'appeal' is 'criminal due to the underlying County Court matter being a criminal proceeding', and submitted -

This leaves a situation where ... in all practical respects this is an interlocutory appeal (as the case is still to be determined) albeit the originating motion does not state the statutory basis for the appeal. As such the first defendant seeks a certificate pursuant [to] section 15B of the Appeal Costs Fund Act 1998 (sic), or at the general equitable discretion of the court in the circumstances.

7 It was also submitted that Mr Filonis was 'not at fault' and 'ought not be prejudiced by instructing counsel to oppose the Originating Motion'. However, the substance of that submission was taken into account when it was earlier determined that costs should follow the event.[3]

8 The DPP noted that that the proceedings in this Court comprised an application on summons under Order 56 for judicial review, and that both parties agree that it should be considered to be a 'criminal proceeding'. Otherwise, the DPP pointed to the provisions of the Act - particularly the terms of s 15B - and submitted that an indemnity certificate could not be granted.

9 In broad terms, the DPP's submissions must be accepted. It will be evident from the above extract that s 15B of the Act is directed to an 'appeal' to the 'Court of Appeal' under 's 295 of the Criminal Procedure Act 2009'.

10 Many decisions have considered the meaning of the defined term 'appeal' in both the Act and its predecessor, the Appeal Costs Fund Act 1964 (Vic). In both Acts, 'appeal' has been defined to include a proceeding 'in the nature of an appeal' and, in broad terms, that expression has been construed as being capable of encompassing an application for judicial review seeking prerogative relief.[4]

11 That said, the decisions to which I have referred are generally directed to applications made under either s 13(1) of the Appeal Costs Fund Act 1964 or s 4(1) of the Act.

12 In that regard, s 4(1) of the Act refers to 'an appeal against a decision of a court in a civil proceeding'.

13 I have noted that both Mr Filonis and the DPP accept - correctly - that the present proceeding must be criminal in character.[5] It follows that s 4(1) of the Act - which appears in Part 2 of the Act concerning 'civil matters' - cannot presently apply. Unsurprisingly, Mr Filonis has not made an application by reference to it.

14 In any event, I have noted that s 15B of the Act - which appears in Part 3 of the Act concerning 'criminal matters' - is specifically directed to an 'appeal under s 295 of the Criminal Procedure Act 2009'. That expression cannot be said to encompass the present proceeding.

15 Further, the right to an indemnity certificate in respect of 'criminal matters' has been identified as limited by the specific terms of the Act.[6]

16 In that regard, in DPP v Greelish,[7] Phillips JA with whom Buchanan JA and O'Bryan AJA agreed, considered an appeal to the Court of Appeal following an appeal to the Trial Division under s 92 of the Magistrates' Court Act 1989 (Vic). In that connection, his Honour stated -

Wanting any express provision to that effect, this is not a case in which the court can supply the lack by interpreting the words used, for the words of the statute are simply not sufficient to evince the relevant intention. In my opinion, neither Pt 2 nor Pt 3 of the [Appeal] Costs Act is worded to encompass, either expressly or by implication, an appeal to the Court of Appeal after an appeal under s 92 of the Magistrates' Court Act and the court is in no position to remedy that lacuna, if such it be. The only remedy is legislative amendment.[8]

17 In my view, the present situation is relevantly identical and it must follow that limited if any assistance can be obtained from considerations such as -

(a) any generally stated object or purpose of the Act;[9]

(b) the 'relatively generous approach' ordinarily adopted by courts in respect to applications made pursuant to s 4(1) of the Act;[10] and

(c) what Mr Filonis' submission describes as 'the general equitable discretion of the court'.

18 In the circumstances, Mr Filonis' application for an indemnity certificate must be refused.

19 As submitted by the DPP, the orders made on 18 May 2023 can stand undisturbed and it is unnecessary to make any further orders.

[1] [2023] VSC 260.

[2] Cf., Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, [20]-[21], R v Garth [2008] VSCA 252; (2008) 21 VR 203, [26]-[32], Commissioner of AFP v Magistrates' Court of Victoria & Ors (Costs ruling) [2011] VSC 49, [19] ('Commissioner of AFP') and Director of Public Prosecutions (Commonwealth) v Brady & Ors (Costs) [2019] VSC 397; (2019) 58 VR 628, [49].

[3] Cf., Commissioner of AFP (n 2), [17]-[18].

[4] See, among other cases, R v Marshall; ex parte Baronor Nominees Pty Ltd [1984] VicRp 17; [1984] VR 211, Musashi Pty Ltd v Foody [1999] VSC 82, Dawson v Bethonga [2009] VSC 172, Vinton v Sim [2014] VSC 568, McDonald v Irungu [2015] VSC 689, Zaitsev v Building Appeals Board & Anor (Costs) [2019] VSC 455, Radman v Open Plan [2020] VSC 318 ('Radman') and Shout Rock Cafes Pty Ltd v City of Port Phillip & Anor (Costs Ruling) [2023] VSC 23.

[5] Director of Public Prosecutions v Greelish (No 2) [2002] VSCA 68; (2002) 5 VR 349, [7] ('Greelish (No 2)'). See also, R v Watt; ex parte Slade [1912] ArgusLawRp 17; [1912] VLR 225, Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745 and Commissioner of AFP (n 2), [23].

[6] See, in particular, DPP v Sher (No 2) [2000] VSC 350; 116 A Crim R 458, [25]-[27], [49] and [54], Greelish (No 2) (n 5), [8]-[10] and Commissioner of AFP (n 2), [23].

[10] Eureka Funds Management Limited & Anor v Freehills Services Pty Ltd (No 2) [2008] VSCA 177, [7].