CITATION: Aldridge v Victims Compensation Fund Corporation (No 2) [2008] NSWSC 1040 HEARING DATE(S): Written submissions
JUDGMENT DATE :
7 October 2008JURISDICTION: Common Law JUDGMENT OF: Rothman J DECISION: Each party bear her or its own costs. CATCHWORDS: COSTS – ordinary rule that costs follow the event – impecuniosity insufficient of itself to overcome general rule – public funds – combination of factors overcome ordinary rule – each party bear their own costs CATEGORY: Consequential orders CASES CITED: Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724 PARTIES: Dawn Aldridge (Plaintiff)
Victims Compensation Fund Corporation (First Defendant)
Victims Compensation Tribunal (Second Defendant)FILE NUMBER(S): SC 13847/2007 COUNSEL: J Raine (Plaintiff)
S Free (First Defendant)
Submitting appearance (Second Defendant)SOLICITORS: Fosters Lawyers (Plaintiff)
Crown Solicitor's Office (Defendants)LOWER COURT JURISDICTION: Victims Compensation Tribunal LOWER COURT FILE NUMBER(S): 86384 LOWER COURT JUDICIAL OFFICER : Magistrate Gilmore
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONROTHMAN J
7 OCTOBER 2008
JUDGMENT13847/2007 Aldridge v Victims Compensation Fund Corporation & Anor (No 2)
1 HIS HONOUR: On 17 July 2008, the Court, as presently constituted, delivered judgment on the substantive issue in the proceedings: Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724 (“the substantive proceedings”). The Court dismissed the proceedings and the defendant seeks its costs.
2 The plaintiff alleged before the Victims Compensation Tribunal that she had been the victim of a series of domestic violence attacks, the details of which are more fully recited in the substantive proceedings. The Tribunal refused the application on the basis of the lack of corroborating material. During the course of the judgment on the substantive proceedings, I reiterated the sentiment of the Tribunal to the effect that, if the allegations of the plaintiff were true, this would be a most sad case.
3 I also commented that there was nothing stopping a further application, supported by corroborating material. While such an application would require an extension of time to proceed, the policy of the statute under which such discretion is exercised would seem to be in favour of an extension. However, there was no error of law in the decision of the Tribunal that would have allowed orders to issue.
4 Unbeknownst to me, at that time, the plaintiff had made further application (six in all) and had been informally advised that the fresh application would not be accepted. It is not clear whether such refusal occurred before or after the judgment in the substantive proceedings and, therefore, whether the Tribunal had regard to the reasons of the Court. Nor is it clear whether either party has taken any steps subsequent to the substantive judgment.
5 If the Tribunal were not to have had regard to the policy of the statute and its obviously intended benevolent effect, other proceedings may be available. But, for present purposes, the correctness or otherwise of any subsequent decision of the Tribunal cannot be relevant to the issue of costs in these proceedings.
6 However, the subsequent applications, it is said, corroborate, in part, the original allegation before the Tribunal.
7 In those circumstances, the Court is being asked to order an impoverished indigenous Australian women, who has, on material subsequently available to the Tribunal, more probably than not been the victim of significant domestic violence, to pay the costs of a Tribunal established with public moneys for the purpose of compensating victims of crime.
8 Ordinarily, costs follow the event. Impecuniosity is not a sufficient reason to overcome that general rule. Nor is the fact that a person is of aboriginal descent or a member of the aboriginal community. But the combination of factors (impecuniosity; aboriginality; likelihood of having (on subsequent information) the qualifying factors for compensation from the Tribunal; the public nature of the Fund and the Tribunal; and the futility of the orders) are sufficient, in this case, to overcome the general rule.
9 I order that each party bear her or its own costs.
- AGLC
- Aldridge v Victims Compensation Fund Corporation (No 2) [2008] NSWSC 1040
- Case
- [2008] NSWSC 1040
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the ordinary rule that costs follow the event should be set aside in light of Mr Aldridge's impecuniosity. The court had to consider whether the principle that the losing party pays the costs of litigation should be applied, or if there were exceptional circumstances that justified an order for each party to bear their own costs. The court also needed to weigh the policy considerations involved in the allocation of public funds and the equitable treatment of the parties.
The court determined that while the ordinary rule that costs follow the event generally applies, there were exceptional circumstances in this case that justified a departure from this rule. The court noted that Mr Aldridge's financial hardship, coupled with the nature of the litigation involving public funds, warranted a consideration of alternative cost orders. The court concluded that it was in the interests of justice for each party to bear their own costs, reflecting a balanced approach to the allocation of costs in this particular case.
The final orders of the court were that each party bear their own costs of the proceedings, recognising the exceptional circumstances presented by the impecuniosity of the plaintiff and the involvement of public funds.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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