and Kordister Pty Ltd v Director of Liquor Licensing and the Chief Commissioner of Police (No 2)

[2013] VSCA 30

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0087
KORDISTER PTY LTD	Applicant
v
DIRECTOR OF LIQUOR LICENSING and THE CHIEF COMMISSIONER OF POLICE (NO 2)	Respondents

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JUDGES	WARREN CJ, TATE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 June 2012
DATE OF JUDGMENT	25 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 30
JUDGMENT APPEALED FROM	Director of Liquor Licensing v Kordister Pty Ltd & Anor [2011] VSC 207 (Bell J)

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COSTS – Court allowed appeal in part – Confirmed order of trial judge in part but stayed originating process due to passage of time – Test case which raised questions of law – Appeal raised issues of public importance – Each party succeeded in part – Appellant to pay 40 per cent of leave application and appeal costs.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C J Canavan QC with Mr J D Pizer	Bazzani Scully Brand
For the Respondents	Mr P J Hanks QC with Mr C J Horan	Victorian Government Solicitors Office

WARREN CJ

TATE JA
OSBORN JA:

1. On 19 December 2012, the Court allowed in part an appeal from the decision of the appeal judge at first instance and confirmed the order setting aside the decision of the Victorian Civil and Administrative Tribunal but stayed the originating process in the matter because of the effluxion of time. 

1. The respondents now seek to maintain the order made in the Trial Division for the costs of the initial appeal and to obtain an order for 75 per cent of their costs with respect to the appeal to this Court.  Kordister does not seek to vary the costs order made by Bell J on the initial appeal, but submits that each party should bear its own costs of the subsequent leave application and appeal to this Court. 

1. It seems to us that when the appeal process is viewed as a whole the Director was fundamentally successful in appealing a series of adverse evidentiary conclusions reached by VCAT.  Nevertheless, we have reached the view that the costs that might normally flow from this outcome must be discounted for the following reasons. 

1. First, this Court granted leave to appeal from the decision of Bell J[1] because of the public importance of the issues raised by the appeal.  In a very real sense, this was a test case.  It involved at its threshold questions of law which required an exploration and elucidation of the concept of harm minimisation.  In our view Kordister should not bear the full costs of this issue.  Whilst it may be said that it substantially failed to persuade the Court in respect of the consequences of the evidentiary application of the relevant concept, it was not unreasonable for Kordister to appeal the decision of Bell J given the controversy attending the resolution and application of that concept.  Further, the judgments of this Court did both qualify and expand the views expressed by Bell J concerning harm minimisation. 

   [1]Kordister Pty Ltd v Director of Liquor Licensing [2012] VSCA 325, [81].

1. Secondly, it seems to us that the effluxion of time, which led to the stay orders imposed with respect to the originating process, was itself materially contributed to by the test case nature of the matter and the relatively complex arguments advanced on appeal at first instance.  It follows that the matters which led to the mixed outcome reflected in the Court’s ultimate order may themselves be characterised as deriving in part from matters of public importance. 

1. Thirdly, although the respondents were successful in respect of two significant aspects of the evidentiary arguments relating to the case concerning harm minimisation, and with respect to the case concerning economic impacts, they failed with respect to the ground relating to failure to consider the Panel’s recommendations which involved a discrete issue. 

1. Fourthly, as the respondents concede, the practical outcome of the proceedings has been that each party has enjoyed some success. 

1. It is not possible to balance these considerations by way of a precise mathematical formula.  The most significant factors favouring an award of costs to the respondents are the success on major evidentiary questions which were initially decided adversely to them.  The most significant factors favouring a discount in such costs are the test case nature of questions of law raised on the appeal and the partial success of Kordister upon some issues.   

1. This Court has the discretion to make such order for the whole or any part of the costs of the application as it think fit.[2]  In the particular circumstances of this case, we would order that Kordister pay 40 per cent of the costs of the leave application and appeal to this Court.

   [2]Supreme Court (General Civil Procedure) Rules 2005 r 64.24(1).

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