Chen v Legal Services Commissioner (No 2)

[2021] VSC 72

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01481

XIAO YI CHEN aka ANNA CHEN	Appellant
v
VICTORIA LEGAL SERVICES COMMISSIONER	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 February 2021
CASE MAY BE CITED AS:	Chen v Legal Services Commissioner (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 72

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COSTS – Application for leave to appeal not competent – No formal objection to competency – Submissions raised competency issue – Proceeding unsuccessful – Costs follow the event – Supreme Court (General Civil Procedure) Rules 2015, r 64.33.

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APPEARANCES (Determined on the papers):	Counsel	Solicitors
For the Appellant	Mr M Mackinnon	Horseforce Legal
For the Respondent	Mr S Morris	Victorian Legal Services Commissioner

HIS HONOUR:

1. On 14 December 2020 I delivered judgment dismissing the appellant’s proceeding and amending the description of her name.[1] I directed that submissions as to costs be made in writing. I have considered those submissions.

   [1]          Chen v Victorian Legal Services Commission [2020] VSC 842.

1. The appellant submitted that the Commissioner was not entitled to any costs. She was unaware until the hearing on 14 August 2020 that the Commissioner was not seeking summary judgment but objecting to the competence of the appeal. She submitted that the Commissioner had invoked r 64.33(4) of the Supreme Court (General Civil Procedure) Rules 2015 as the source of the Court’s power to deal with the challenge to the competency of the application for leave to appeal, but had not served a Form 64H, being  a notice of objection to competency, as was required. The Commissioner was not entitled, because of the failure to file a notice of objection under r 64.33(1), to its costs unless the Court otherwise ordered. There was no reason for the Court to make such an order.

1. In addition, the appellant pointed to the fact that the Commissioner relied on further submissions at the hearing that were filed and served late.

1. The respondent submitted, in effect, that costs should follow the event.

1. As I stated in my judgment, courts often hear objections to jurisdiction as a preliminary issue.

1. The parties’ submissions made clear that the issue of the competency of the appeal was the main issue before the Court and consequently they addressed it at length in their submissions: the Commissioner in submissions of 21 May and 31 July 2020 and the appellant in submissions of 18 June. The appellant did not establish any prejudice caused by the late service of the Commissioner’s submissions of 31 July 2020. Those submissions replied to the appellant’s submissions about the competency of the appeal and developed the Commissioner’s submissions of 21 May.

1. The Commissioner’s objection to the competency of the proceeding was made by summons of 21 May 2020, which in turn was made to pursuant to the order of the Judicial Registrar of 4 May 2020. The summons sought an order that the appeal be dismissed, but the Commissioner’s submissions of the same day, made clear that the Commissioner was challenging the competence of the appeal. By order of 18 June 2020, the Judicial Registrar adjourned the summons to be heard on 4 August 2020. After reserving my judgment on that day, I determined the summons by dismissing the proceeding, which was an application for leave to appeal. I am now deciding the costs of the proceeding, including the summons. There is no need to invoke the procedures of r 64.33 as the Judicial Registrar’s orders placed the issue of the competency of the appeal before me for determination.

1. The Commissioner succeeded on the issues argued at the hearing of the appeal both as to the competency of the appeal and the amendment of the appellant’s name. I dismissed the proceeding. There is no reason, why costs should not follow the event. I therefore order that the appellant pay the respondent’s costs of the proceeding on a standard basis.