Applicants A1 & A2 v Brouwer (No 3) - [2008] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 4383 of 2007

APPLICANTS A1 AND A2
	v
G E BROUWER (IN HIS CAPACITY AS DIRECTOR OF THE OFFICE OF POLICE INTEGRITY) & ANOR (NO 3)

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APPLICATION ON SUMMONS

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JUDGES:	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2008
DATE OF JUDGMENT:	4 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 99

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PRACTICE AND PROCEDURE – Appeal – Costs of appeal – Judicial review proceeding – Successful appellants sought costs on solicitor and own client basis – Whether litigation analogous to proceedings by beneficiary for construction of will or trust deed – Whether ‘common fund’ available – Public interest in clarification of law – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr S R McCredie	Lennon Mazzeo
For the Second Respondent	Mr D Masel	Victorian Government Solicitor’s Office

THE JUDGMENT OF THE COURT WAS DELIVERED BY MAXWELL P

This is an application by the successful appellants in the appeal which we allowed on 28 June 2007. When the order was pronounced allowing the appeal, there was discussion about costs. Counsel for the appellants foreshadowed the possibility that an application would be made for solicitor-client costs once the reasons for judgment had been read. Orders were made to enable that to occur. At the time, discussion was limited to the costs of the appeal but, as counsel for the appellants has argued this afternoon, if it was right to order costs on a particular basis because of the character of the proceeding and his clients' relationship to it, then logically there could be no distinction between the costs of the first instance hearing and the costs of the appeal.

We have been much assisted by the written submissions filed in advance, which gave us the opportunity to give careful thought to the issues. The oral submissions which counsel for the appellants has made have further clarified for us the basis for the proposition that there should be an award of costs on this special basis, that is to say, solicitor and own client.

The view of the Court is that the application for a special order for costs should be refused. Our reasons are as follows. It is said by counsel for the appellants that the relationship of his clients to the Chief Commissioner (as the second respondent to the appeal) in this litigation is analogous to the position of a beneficiary vis-à-vis an executor or a trustee in litigation about the construction of a will or a trust deed. In proceedings of that kind, the successful beneficiary will typically have his or her costs paid on a solicitor and own client basis out of the fund dealt with by the will or the trust. The rationale for that rule is said to be as follows:

It is in form adverse litigation, but in substance it is [an] amicable procedure for determining speedily and inexpensively a question the solution of which must sooner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSCA 99
Decision Date: 4 June 2008

CaseChat Overview and Summary

The applicants, A1 and A2, sought a review of the decision made by Brouwer, which was contested in the court. The applicants, who were successful in their appeal, applied for costs on a solicitor-client basis. This request was contested by Brouwer, who argued that the proceedings were not analogous to those of a beneficiary seeking to construe a will or trust deed, and thus no common fund was available. The applicants contended that the case involved a significant public interest in the clarification of the law.

The court had to decide whether the proceedings were sufficiently analogous to those of a beneficiary seeking to construe a will or trust deed, and if so, whether a common fund was available. The court also needed to consider the public interest in the clarification of the law as a factor in determining whether the applicants were entitled to costs.

The court held that the proceedings were not analogous to those of a beneficiary seeking to construe a will or trust deed, and therefore no common fund was available. The court further found that, even if the proceedings were analogous, the public interest in the clarification of the law did not warrant an order for costs on a solicitor-client basis. The application for costs was refused.

The court made an order that the applicants, A1 and A2, were not entitled to costs on a solicitor-client basis.

Orders