Maddocks Prosecution Report | July 2014

Please download the attached PDF to view this month's prosecution report.

Recent Supreme Court decision on costs

You will recall the decision in Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386, handed down in August 2010. There have been many instances when this case has been referred to in relation to the question of costs. However, we have found that the case has not altered the basic approach to costs.   On 27 June 2014, the Supreme Court delivered its decision in Agar v McCabe [2014] VSC 309. Maddocks acted for the respondent in that case. The decision refers to the Hobsons Bay case and held:

that matters that go to proportionality and consistency are relevant to the exercise of the discretion under s 131(1). In my view these are mandatory considerations such that a failure to consider them will constitute jurisdictional error.

The decision confirms that a Magistrate must take into account matters that go to proportionality and consistency when exercising the discretion to award costs under section 131(1) of the Magistrates' Court Act 1989. The Supreme Court determined that it was not satisfied the original Magistrate had taken into account proportionality and consistency because of the absence of reasons that had been given when the costs order was made.

The decision on costs was therefore quashed and remitted back to the original Magistrate for reconsideration. The original Magistrate had since retired so another Magistrate was appointed to rehear the costs application. The Magistrate confirmed the original decision and awarded an additional $1500 for counsel’s attendance for the day. Before doing so he expressly referred to having taken into account proportionality and consistency as well as other relevant factors to inform his discretion.

An important thing to note about this case is that the costs application was made in relation to a hearing about the scope of a witness summons that had been issued by Mr Agar. The hearing was not about the prosecution itself. Nevertheless the Supreme Court applied the decision in Hobsons Bay to the matter demonstrating that it is applicable to the exercise of the discretion on costs generally.

Please click here to read the decision in full. 

Eyes in the sky – drones and privacy

On 14 July 2014, the House of Representatives’ Standing Committee on Social Policy and Legal Affairs published a report on the impact of drones on privacy in Australia. Titled Eyes in the Sky: Inquiry into the Regulation of Air Safety and Privacy (Drones Report), the paper discusses many of the issues that arise from the increased prevalence of drone (or ‘remotely piloted aircraft’) technology within Australia’s current air safety and privacy frameworks.

There is an emerging interest by our enforcement clients in the use of drones to collect evidence. Please click here to read more about the report.