Archbishop Petros v Biru

[2006] VSC 404

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8737 of 2006

ARCHBISHOP ABBA PETROS AND ANOR.	Plaintiffs
v
MEZEMER BIRU AND ANOR.	Defendants

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JUDGE:	Morris J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2006
DATE OF JUDGMENT:	2 November 2006
CASE MAY BE CITED AS:	Archbishop Petros v Arch Priest Biru
MEDIUM NEUTRAL CITATION:	[2006] VSC 404

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Interlocutory Injunction – costs of unsuccessful application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. Little	Mr Thomas Egan
For the Defendants	Mr A. Kirby	Nicholas O'Donohue & Co.

HIS HONOUR:

1. The plaintiffs have sought interlocutory relief, having a mandatory character, and have failed.  The defendants now submit that the court should make an order that the plaintiffs pay the defendants’ costs of the application.

1. Rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2005 provides that each party shall bear their own costs of an interlocutory or other application in a proceeding, whether made on or without notice, unless the court otherwise orders. However this rule is subject to the wide discretion of the court as to costs contained in section 24(1) of the Supreme Court Act 1986: see, for example, Bass Coast Shire Council v King.[1]  Although it is sometimes said that the general rule that costs should follow the event does not apply to interlocutory applications, it is not unusual for costs orders to be made in favour of a successful respondent where an application for an injunction fails:  see, for example, Tower Australia Limited v Ambridge Investments Pty Ltd.[2]

   [1][1997] 2 VR 529.

   [2][2993] VSC 478.

1. The outcome of the present application for interlocutory relief was always going to turn upon whether the plaintiffs could show that it was in the balance of convenience that the relief be granted.  Although the parties were in dispute as to the strength of their respective contentions in relation to the substance of the matter, it was accepted that there was a serious question to be tried.  The plaintiffs failed to persuade the court that it would be in the balance of convenience to grant the interlocutory relief sought.  The plaintiffs could have left control of the Melbourne church in the hands of the defendants until the trial of the proceeding; and the plaintiffs could have sought to bring that trial forward.  However the plaintiffs chose a different, and ultimately unsuccessful, course:  a course which resulted in (no doubt) substantial costs being incurred by the defendants.  In my opinion, it would be unfair to expect the defendants to pay these costs.

1. The plaintiffs submit that it is not yet possible to see on which side justice requires that costs should ultimately fall.  Hence the plaintiffs submit that the proper order is that each party should bear their own costs; or, alternatively, that the parties’ costs be costs in the proceeding.  It is true that the proceeding may ultimately be determined in favour of the plaintiffs.  In such circumstances it might be said that the defendants should not have resisted the application for an interlocutory injunction; and, by resisting, they must accept the responsibility for the costs that they incurred.  But if a party loses a proceeding it will not always be appropriate that it be required to pay the costs of the proceeding and the costs of some unsuccessful interlocutory application.  On the contrary, it will often be just for the ultimate loser to recover costs in respect of an interlocutory “win”, particularly where that “win” is (as here) relatively clear cut.

1. It is also important to emphasise that the resolution of an interlocutory application will be influenced by the nature of the relief which is sought.  This is not to say that there is a different test for mandatory injunctions than restraining orders, but to note that it will be more difficult to establish that a course involving a mandatory order, rather than the retention of the status quo, would produce a lower risk of injustice.

1. The defendants have filed written submissions dated 16 October 2006 which raise additional, relevant matters.  I accept that the Melbourne church had been relatively harmonious for the five year period before the present dispute arose.  I accept that the Magistrates’ Court challenge to the election results for the Administrative Committee failed and, as a consequence, the legal status of the existing members of the Administrative Committee has been affirmed.  I also accept that there was no sustainable evidence before the court at the hearing of the interlocutory application to the effect that the defendants had made improper use of any church finances.  These factors reinforce my conclusion.

1. Thus, in all the circumstances and in the exercise of my discretion, I propose to make an order that the plaintiffs pay the defendants’ costs of the plaintiffs’ summons filed 15 September 2006, including reserved costs.

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