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Bare v Small

Bare v Small

Case [2013] VSCA 204 9 August 2013

Limitation Periods

Costs

Abuse of Process

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0045

NASSIR BARE	Applicant
	v
RAI SMALL and INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION and PAUL JEVTOVIC and VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION and ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	1^ST Respondent
	2^ND Respondent 3^rd Respondent 4^th Respondent 5^th Respondent

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APPLICATION ON SUMMONS

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JUDGES	HANSEN and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 August 2013
DATE OF ORDERS:	2 August 2013
DATE OF PUBLICATION OF REASONS:	9 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 204	1^st Revision: 27 May 2014 (n 17)
JUDGMENT APPEALED FROM	[2013] VSC 129, 1^st Revision: 28 March 2013, (Williams J)

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PRACTICE AND PROCEDURE – Whether Court has power to make Protective Costs Order – Discretionary power to fix or cap a parties’ liability for recoverable costs in advance of proceeding – Civil Procedure Act 2010, ss 7, 8, 9, 65C(2)(d), Supreme Court Act 1986, s 24 – R (Corner House Research) v Secretary for State and Industry [2005] 1 WLR 260; Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864; Aitken v State of Victoria [2013] VSCA 28, considered.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J D Pizer with Mr E M Nekvapil and Ms F C Spencer	Maddocks
For the First, Second and Third Respondents	Mr P R D Gray SC with Ms K Evans	Victorian Government Solicitor’s Office
For the Fourth Respondent	Mr S P Donaghue SC	Victorian Equal Opportunity and Human Rights Commission
For the Fifth Respondent	Ms J M Davidson	Victorian Government Solicitor

HANSEN JA
TATE JA:

By summons dated 17 May 2013, Mr Nassir Bare (‘the applicant’) applied for a Protective Costs Order (‘PCO’) to limit his liability to pay costs in the event that the appeal he has brought against the orders of Williams J[1] is unsuccessful. On 2 August we heard the summons and granted the application. The following are our reasons for making those orders.
[1]Bare v Small [2013] VSC 129 (‘Reasons’).

The judgment below

Williams J dismissed an application for judicial review brought by the applicant against a decision of a delegate of the Director of Police Integrity (‘the Director)’. The applicant had complained to the Director alleging that he had been assaulted by officers of Victoria Police. He claimed that on 16 February 2009, when he was 17, police stopped the car in which he was travelling. An officer then handcuffed him and kicked his legs, causing him to fall. As he lay on the ground, the officer pushed his head repeatedly into the gutter and four or five of his teeth were chipped in the process. His jaw was cut, with resultant scarring. The officer sprayed him in the face with ‘OC’ (capsicum) spray several times, forcibly raising his head to do so. This caused him difficulty in breathing. The applicant claimed that during the assault the officer said words to the…

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.

Continue reading Bare v Small

Details

AGLC: Bare v Small [2013] VSCA 204
Case: [2013] VSCA 204
Decision Date: 9 August 2013

CaseChat Overview and Summary

The case of Bare v Small was heard in the Supreme Court of Victoria. The plaintiff, Bare, sought a Protective Costs Order against the defendant, Small, to limit Small’s liability for costs should Bare be unsuccessful in the proceedings. The central issue before the Court was whether it had the power to make such an order under the Civil Procedure Act 2010 and whether this power could be exercised in a manner that fixed or capped a party's liability for recoverable costs before the proceeding had concluded.

The court considered relevant statutory provisions and judicial authorities to address this issue. The court examined sections 7, 8, 9 and 65C(2)(d) of the Civil Procedure Act 2010, alongside section 24 of the Supreme Court Act 1986. The court also referenced the decisions in R (Corner House Research) v Secretary for State and Industry, Corcoran v Virgin Blue Airlines Pty Ltd, and Aitken v State of Victoria, which provided guidance on the application of protective cost orders and the principles of judicial discretion in cost management.

The court concluded that the Supreme Court of Victoria does indeed have the discretionary power to make a Protective Costs Order, as provided by the Civil Procedure Act 2010. The court found that the Act’s provisions, particularly section 65C(2)(d), supported the making of such orders to prevent parties from incurring excessive costs. The court also determined that the power to fix or cap a party’s liability for costs could be exercised before the conclusion of proceedings, aligning with the precedents set in the referenced cases.

The final orders of the court were that the plaintiff, Bare, was granted a Protective Costs Order against the defendant, Small, which limited Small's liability for costs should Bare be unsuccessful in the proceedings.

Orders