Agar v McCabe (No 2)

[2014] VSC 333

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

4976 of 2013

CARL PAUL AGAR

Plaintiff

v

LEADING SENIOR CONSTABLE KATHLEEN McCABE

THE MAGISTRATES’ COURT OF VICTORIA

First Defendant

Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2014
DATE OF RULING:	27 June 2014
CASE MAY BE CITED AS:	Agar v McCabe & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 333

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COSTS – Costs will follow the event – Appropriateness of costs order where parties have each enjoyed some success and some failure – Proportionality and consistency – No order as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr S. Russell	Maddocks
For the Second Defendant	N/A	N/A

HIS HONOUR:

1. Costs are in the discretion of this Court.[1]  Although that discretion is effectively unfettered, there are limits on its exercise in the sense that it must be exercised judicially.[2]  The central principle that guides the discretion is one of doing justice to the parties in the circumstances of each case.[3]  The usual, though by no means unyielding, rule is that costs will follow the event.[4]

   [1]Supreme Court Act 1986 (Vic), s 24.

   [2]Hobsons Bay [2010] VSC 386; Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137; See, generally, Wotton v Queensland (2012) 246 CLR 1, 10 (French CJ, Gummow, Hayne, Crennan and Bell JJ): ‘…the notion of “unbridled discretion” has no place in the Australian universe of discourse’.

   [3]Earnshaw v Loy (No 2) [1959] VR 252 at 253 (Sholl J).

   [4]Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 (McHugh J).

1. Here, however, both parties have had some success and courts often make orders that reflect the parties’ relative success and failure.  In my view, and in the circumstances of this case, the parties’ relative successes and failures will be best represented by making no order as to costs.  The practical effect of this will be that each party will bear their own costs of this appeal.

1. First, although at first instance access to the subpoenaed documents was the primary issue and the costs order clearly ancillary, I am not sure that that distinction can be easily maintained upon review.  It is not for me to say which of those orders was of greater practical significance to the parties.  From my perspective at least they were more or less evenly matched in terms of complexity.

1. Second, I consider that the principles of consistency and proportionality, to which I have referred in the reasons for judgment in this matter, are arguments against an order as to costs.  If costs are now awarded the total pecuniary outcome of the plaintiff’s criminal proceeding will be disproportionate to the seriousness of the alleged offending, one measure of which is the on the spot penalty of approximately $180.

1. Third, and as an instance of proportionality, although the first defendant was commendably represented by senior and junior counsel, in my view this was not a case that required two counsel. 

1. For those reasons I make no order as to costs.