Applicants A1 & A2 v Brouwer (No 3)
[2008] VSCA 99
•4 June 2008
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 or later be found for the benefit of all concerned, including the trustees.[1]
[1]Re Buckton; Buckton v Buckton [1907] 2 Ch 406, 416 (Kekewich J).
Counsel for the appellants argues that persons in the position of his clients, as protected witnesses under the Witness Protection Act, should be regarded as having litigated in this proceeding the correct interpretation of the Act which governs their status. He submits that, just as a beneficiary is dependent on a trustee, so a protected witness is dependent on the Chief Commissioner. He says that there is in the present case something comparable to the fund which exists in the will and trust cases, being the provision made pursuant to the Memorandum of Understanding between the Chief Commissioner and his clients that an amount be set aside for expenses of particular types.
Counsel further submits, correctly, that the litigation itself has had a public interest benefit – for the Chief Commissioner and the Director of Police Integrity, and therefore for the public at large – in the clarification of the legal issues arising under the Witness Protection Act, which were the subject of this Court's decision.
Counsel acknowledges, of course, that the result in this Court had direct benefits for his clients, that is to say, it achieved the object which they sought in the litigation, the setting aside of the adverse decision of the Director. He argues, however, that his clients were, by agreement with the Chief Commissioner, the beneficiaries of a package of rights. In order for them to continue to be able to have access to that package of rights, it was necessary for them to resist the termination of protection. The dispute, he sought to submit, was not about precisely what those rights were but about the scheme in general, under which the Chief Commissioner sought to terminate the provision of those rights. In this sense, the litigation conferred benefits on all those who succeed his clients in the program.
In our view, the nature of this litigation is essentially the same as other public law litigation in which a person whose rights are determined or affected by an exercise of statutory power seeks judicial review of that exercise of power. The nature of the rights and the extent to which they are affected varies from case to case. If, for example, a person's livelihood was at risk before an administrative tribunal, a similar argument would doubtless be made that there was a public interest in clarifying the proper interpretation of the relevant statute, and that accordingly the person who successfully challenged the particular decision should not be out of pocket.
As was pointed out in argument, however, it has never been a principle of the award of costs that a successful applicant for judicial review of an administrative decision should get a full indemnity for the costs of so doing. It may be that, in a perfect world, that should occur. As things stand, however, we think that the successful applicant in a proceeding of this kind is in the same (unfortunate) position as the successful plaintiff or appellant in any other proceeding – that is to say, he/she must bear the expense representing the gap between party-party costs and costs actually incurred. A special order for solicitor and own client costs, or for indemnity costs, is, in our view, properly reserved for quite exceptional cases, most commonly where there is some aspect of the conduct of the other party to the litigation which warrants a departure from the usual party-party basis.[2] There is no suggestion that there has been any conduct of that kind on the part of the Chief Commissioner as a respondent.
[2]See Czerwinski v Syrena Royal Pty Ltd (No 2) [2000] VSC 135; PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24.
We are not persuaded that the circumstance that the appellants are protected witnesses under the scheme, nor the fact that as a result of this litigation they continue to have that protection, constitutes an exceptional circumstance so as to take this judicial review litigation out of the general run of such litigation. For those reasons we refuse the application, with costs.
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