Chopra v Department of Education and Training (No. 2)
[2019] VSC 598
•4 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 02534
| MANU CHOPRA | Appellant |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Written submissions on costs received 9 August 2019 (respondent) and 26 August 2019 (appellant) |
DATE OF JUDGMENT: | 4 September 2019 |
CASE MAY BE CITED AS: | Chopra v Department of Education and Training (No. 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 598 |
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COSTS – Costs of application for leave to appeal – Whether good reason to depart from usual rule that the successful party is entitled to its costs – No special rule for costs of appeals concerning Freedom of Information Act 1982 (Vic) – Not public interest litigation – Whether appellant’s failure to accept respondent’s Calderbank offer was unreasonable in the circumstances – Not unreasonable – Appellant to pay respondent’s costs on a standard basis.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Maddocks |
HER HONOUR:
On 19 July 2019, I published my reasons for dismissing an application by Dr Manu Chopra, made under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), for leave to appeal from procedural orders made by the Victorian Civil and Administrative Tribunal.[1] The Tribunal’s orders were made in an application by Dr Chopra against the Department of Education and Training, for review of the Department’s decision to refuse to grant access to documents requested by him under the Freedom of Information Act 1982 (Vic) (FOI Act).
[1]Chopra v Department of Education and Training [2019] VSC 488 (Reasons).
Dr Chopra’s application for leave to appeal was wholly unsuccessful. I concluded that he had no real prospect of success on any of his proposed grounds of appeal. Even if I had been persuaded that he had a real prospect of success, I would have refused leave to appeal because the proposed appeal was against purely procedural orders and was in any event pointless. At the conclusion of my first judgment, I outlined the way in which I proposed to deal with the question of costs:[2]
As to costs, the usual rule is that costs follow the event. This means that the successful party has a reasonable expectation, absent special circumstances, that the losing party will be ordered to pay its costs. Where an application for leave to appeal from an order of the Tribunal is refused, the usual order as to costs is for the appellant to pay the respondent’s costs of the proceeding, including any reserved costs, on a standard basis.
If Dr Chopra seeks to persuade me to make a different order, he may file and serve written submissions on the question of costs, limited to four pages, within seven days from today. If he does so, the Department will have seven days to file and serve any written submissions in response, also limited to four pages. I will determine the issue of costs based on those written submissions, if any, and will then make the final orders in the proceeding.
[2]Reasons, [110]-[111].
Dr Chopra requested more time to prepare his submissions on costs, and I allowed him an additional week, until 2 August 2019. My associate also referred him to Order 63 of the Supreme Court (General Civil Procedure) Rules 2015, and to my reasons for the costs order I made in a recent case involving an unsuccessful appeal from the Tribunal.[3] Although he wrote several lengthy emails to my associate, Dr Chopra did not file any written submissions by 2 August 2019.
[3]Michos v Eastbrooke Medical Centre Pty Ltd (No. 2) [2019] VSC 437, [68]-[79].
At my request, my associate wrote to the parties on 5 August 2019 as follows:
I have drawn Dr Chopra’s emails of 2 and 4 August 2019 to the attention of Justice Richards.
Her Honour will take Dr Chopra’s emails of 23 July, 24 July and 2 August 2019 to be his submissions on the question of costs. She understands from those emails that he contends that the usual order as to costs should not be made in this case because:
•The usual rule that costs follow the event is not always applied in freedom of information matters;
•The proposed appeal raised a novel question of law; and
•It was in the public interest to clarify the law in relation to the interaction between s 53(5) of the Freedom of Information Act 1982 and s 51A of the Victorian Civil and Administrative Tribunal Act 1998, and the application of s 25A of the Freedom of Information Act 1982 to the review of a deemed refusal.
The Department may file and serve its submissions on the question of costs by Friday 9 August 2019. Dr Chopra will then have a fortnight to reply, with his reply submissions to be filed by Friday 23 August. Both the Department’s submissions and Dr Chopra’s reply should be limited to four pages.
The Department filed written submissions on 9 August 2019, in which it argued that the Court should order Dr Chopra to pay the Department’s costs of and incidental to the proceeding:
(a) on the standard basis for the period from 29 June 2018 until 21 May 2019;
(b) on an indemnity basis from 22 May 2019 onwards.
The Department’s submissions attached copies of correspondence, sent without prejudice save as to costs, in which offers had been made to settle the proceeding.
On Monday 26 August 2019, Dr Chopra filed his written submissions in reply, in which he argued that there should be no order as to costs. In summary:
(a) Dr Chopra had found no decisions – ‘Zero. Nada. Zilch.’ – of this Court or any other, in which costs were awarded in an appeal in an FOI Act matter involving the interpretations of provisions of the FOI Act or on questions of law. On that basis, he argued that no costs had ever been awarded against an applicant in such a case.
(b) Relying on the High Court’s decision in Oshlack v Richmond River Council,[4] Dr Chopra argued that there is no usual rule in awarding costs in litigation brought under legislation with public character where the purpose of the legislation is to empower the public to question decisions made by a public authority.
[4](1998) 193 CLR 72 (Oshlack).
(c) Dr Chopra submitted that the Department had invited the litigation by its initial inaction in response to his request, and by its conduct of the Tribunal proceeding. He argued that the Department had run the litigation as a ‘test case’ to gauge the arguments raised by Dr Chopra before the Tribunal.
(d) He further argued that his proposed appeal raised at least two novel questions of law, being:
(i) Can the respondent rely on s 25A(1) of the FOI Act to justify a deemed refusal?
(ii) Can the Tribunal invite a respondent under s 51A of the VCAT Act to reconsider its deemed refusal decision when the applicant has not consented to such a reconsideration under s 53(5) of the FOI Act?
The fact that both of these questions were addressed for the first time in my reasons for dismissing his application is, Dr Chopra submitted, of general benefit and a further reason why the parties should bear their own costs.
As to the Department’s application for indemnity costs from 22 May 2019, Dr Chopra argued that it was not unreasonable for him to reject the Department’s offers made on 2 May 2019 and 22 May 2019. He submitted that, if I decided to award costs , it should be on a standard basis.
Dr Chopra also took issue with aspects of my reasoning and argued that there should be no order as to costs because I had decided his application on points not argued before me or the Tribunal. I do not accept the premise of that argument. In determining the question of costs, it is not appropriate for me to reopen or enlarge on my reasons of 19 July 2019.
For the reasons that follow, I have decided that the appropriate costs order in this case is that Dr Chopra should pay the Department’s costs of the proceeding, including reserved costs, on a standard basis, to be assessed by the Costs Court if not agreed.
Should Dr Chopra be ordered to pay the Department’s costs of the proceeding?
I cannot accept Dr Chopra’s submission that no costs have ever been awarded by this Court in appeals from the Tribunal on questions of law involving the interpretation of provisions in the FOI Act. The submission is factually incorrect. For example, in Knight v Secretary to the Department of Justice (Re Costs),[5] Kellam J awarded costs against an unsuccessful applicant for leave to appeal against orders of the Tribunal made in a matter under the FOI Act. In another freedom of information case, Victoria Police v Marke,[6] the applicant for leave to appeal accepted that it should bear the costs of the proceeding, whatever the outcome, because it wished to settle a point of law of general public importance.
[5][2004] VSC 29, [19].
[6]Supreme Court of Victoria, Court of Appeal, unreported, 14 March 2008, [37]-[38] (Dodds-Streeton JA), [40] (Nettle JA), cited in Secretary of the Department of Primary Industries v Environment Victoria Inc [2013] VSC 300, [80]-[81].
It is the case that published reasons in freedom of information appeals rarely set out the Court’s reasoning in relation to costs. The question of costs is typically dealt with at a hearing at which the reasons for the substantive decision are published, with reasons for the costs order given on transcript. Often there is no argument about what order should be made, because it is clear that there is no reason to depart from the usual rule that the successful party is entitled to its costs.
There is no special rule in relation to the costs of applications for leave to appeal from the Tribunal in matters involving the FOI Act, or more generally. While s 109 of the VCAT Act provides that parties usually bear their own costs of a Tribunal proceeding, that is not the position in proceedings in this Court.[7]
[7]As discussed in Weber v Deakin University (No 2) [2016] VSC 679, [13].
The High Court has recently restated the nature of the power to award costs, and the usual rule that a successful party is generally entitled to its costs:[8]
It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation. While the width of the discretion “cannot be narrowed by a legal rule devised by the court to control its exercise”, the formulation of principles according to which the discretion should be exercised does not “constitute a fetter upon the discretion not intended by the legislature”. Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.
A guiding principle by reference to which the discretion is to be exercised – indeed, “one of the most, if not the most, important” principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome.
[8]Northern Territory v Sangare [2019] HCA 25, [24]-[25] (citations omitted). My associate provided a copy of this decision to Dr Chopra by email on 19 August 2019, and drew his attention to paragraphs [24]-[25].
It is not, however, an absolute rule that a successful party is entitled to be compensated for its legal costs by an unsuccessful party. In a given case, there may be special circumstances that justify departure from the usual rule. The usual rule is not always applied in a case where the prime motivation of the unsuccessful applicant is to uphold the public interest and the rule of law.[9] In such a case, a judge may depart from the usual rule, particularly where the applicant has nothing to gain from the litigation, and there is a real public interest in the outcome.
[9]Oshlack, [46]-[49] (Gaudron and Gummow JJ), [134]-[144] (Kirby J).
I accept that a freedom of information appeal may raise questions of public interest. As Dr Chopra rightly points out, the object of the FOI Act is to extend as far as possible the right of the community to access information in the possession of government agencies in Victoria.[10] The Tribunal, in exercising its review jurisdiction under the FOI Act, may grant access to an exempt document where it is ‘of opinion that the public interest requires that access to the document should be granted under this Act’.[11] On occasion, questions of great public importance have been examined in the context of freedom of information litigation.[12]
[10]FOI Act, s 3(1).
[11]FOI Act, s 50(4).
[12]For example, Director of Public Prosecutions v Smith [1991] 1 VR 63, Osland v Secretary to the Department of Justice (2008) 234 CLR 275, Osland v Secretary to the Department of Justice (No. 2) (2010) 241 CLR 320.
This is not such a case. On no view could this proceeding be characterised as public interest litigation. It was an application for leave to appeal from procedural orders made in one of Dr Chopra’s several applications to the Tribunal seeking review of decisions made by the Department in relation to one of his many requests for access under the FOI Act. As I explained in my first judgment, the background to these requests is Dr Chopra’s grievance against the Department arising out of his employment as a teacher at McKinnon Secondary College between 2012 and 2015.[13] On the information before me, it is a private grievance that raises no broader issue of public importance. The essentially private nature of the application is not altered by the fact that it concerns legislation that provides for the public to have access to information in the hands of government.
[13]Reasons, [2].
I do not accept that there was any public benefit in the resolution of the questions of law that Dr Chopra sought to agitate on appeal. I found that there was no real prospect that any of those questions would be answered favourably to Dr Chopra. The Tribunal’s orders, and the reasoning that underpinned them, were undisturbed. As I explained in my first judgment, it is generally preferable for the Tribunal to decide all questions of fact and law in the proceeding before it, before those questions are brought to this Court.[14] It is my firm view that this would have been the best course in this case. Dr Chopra’s impatience to have the Supreme Court consider questions that he considered to be novel has caused more than a year’s delay in the hearing and determination of his application to the Tribunal.
[14]Reasons, [80].
There is no substance to the submission that the Department somehow invited this proceeding, either by its initial inaction in response to Dr Chopra’s request for access or as some kind of ‘test case’. The Department seeks to justify its deemed refusal under s 25A of the FOI Act, on the basis that processing Dr Chopra’s request would substantially and unreasonably divert its resources from its other operations. It filed the evidence and submissions on which it relies before the Tribunal on 20 June 2018 and, from its point of view, the matter has been ready for hearing since then. The Department did not invite or encourage Dr Chopra’s application for leave to appeal to this Court. It was an unwilling respondent to the application, and was successful in defending it.
I do not consider that there is any reason in this case to depart from the usual rule that the successful party is entitled to its costs.
Dr Chopra submitted that he should not be ordered to pay the reserved costs of the directions hearing on 15 May 2019, at which Judicial Registrar Clayton refused his application to adjourn the trial listed for 30 May 2019 to a date after 9 December 2019. The circumstances that led to that directions hearing are recorded in detail in ‘Other matters’ in the order of Judicial Registrar Clayton made on 15 May 2019. Dr Chopra argued that he had partial success at that hearing, in that he was given more time to file and serve his written submissions in reply. That was a reason for reserving costs on 15 May 2019, although the Department had successfully resisted the adjournment application. It is not a reason, in my view, to treat the costs of the 15 May directions hearing any differently from the other costs of this proceeding.
I will order that Dr Chopra pay the Department’s costs of the proceeding, including any reserved costs.
Costs on a standard basis or an indemnity basis?
The Department seeks its costs on an indemnity basis from 22 May 2019, on the basis of two offers it made to settle the proceeding. Both offers were made without prejudice save as to costs.
The first offer, made in an email from the Department’s solicitors dated 2 May 2019, was for Dr Chopra to withdraw the proceeding and pay $10,000 towards the Department’s costs. Dr Chopra rejected this offer by email on 3 May 2019. In doing so, he disputed that the proceeding had already cost the Department more than $10,000. He described that amount as ‘ridiculous’. He pointed out that most of his submissions were submissions that he had already made at the Tribunal, queried how much work had been done by the Department’s lawyers, and said ‘So, I do not see how all this money could have been spent’.
The second offer was made in a more formal letter from the Department’s solicitors dated 22 May 2019, made pursuant to the principles set out in Calderbank v Calderbank[15] and applied in cases such as Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2).[16] After setting out why the Department considered that the proposed appeal would be dismissed, the letter said:
In the interests of avoiding the time, trouble and expense associated with running a hearing, our client makes the following offer in full and final settlement of this Proceeding:
2.1.1You agree to sign a minute of proposed consent orders that this Proceeding be dismissed.
2.1.2You pay to our client $10,000 within 21 days.
[15][1975] 3 All ER 333.
[16](2005) 13 VR 435 (Hazeldene).
The letter did not address Dr Chopra’s query as to ‘how all this money could have been spent’. It simply asserted that the Department’s costs were ‘considerably in excess’ of the $10,000 it had offered to accept.
The offer was open for acceptance until 29 May 2019, the day before the trial. Dr Chopra did not respond, and the offer lapsed.
I have considered the Department’s offer of 22 May 2019 against the relevant factors identified in Hazeldene,[17] and have concluded that it was not unreasonable in the circumstances for Dr Chopra not to accept the offer. The main reason for that conclusion is that, from Dr Chopra’s point of view, the extent of the compromise offered was unclear. I accept his submission that he was in no position to judge whether $10,000 was a reasonable compromise in respect of the Department’s costs. In his email of 3 May 2019, he had queried, in various ways, how its costs could be so much. There was no reason to expect Dr Chopra to be familiar with the Supreme Court scale of costs. And yet the offer of 22 May 2019 gave no explanation of the figure of $10,000, and no estimate of the costs incurred by the Department.
[17]Hazeldene, [25].
I will order that Dr Chopra pay the Department’s costs of the proceeding on a standard basis, to be assessed by the Costs Court if not agreed.
Disposition
I make the following orders:
(a) The application for leave to appeal is dismissed.
(b) The appellant is to pay the respondent’s costs of the proceeding, including any reserved costs, on a standard basis, to be assessed by the Costs Court if not agreed.
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