Cotterill v Romanes (Ruling No 3)
[2021] VSC 629
•30 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03946
| KERRY COTTERILL (and others according to the Schedule) | Plaintiffs |
| v | |
| FINN ROMANES (in his capactity as the Deputy Public Health Commander) | First Defendant |
| BRETT SUTTON (in his capacity as Chief Health Officer) | Second Defendant |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 September 2021 |
DATE OF JUDGMENT: | 30 September 2021 |
CASE MAY BE CITED AS: | Cotterill v Romanes (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 629 |
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COSTS – COVID-19 Pandemic – Directions limiting the number of reasons to leave home – Whether costs should follow the event – Success of parties on issues – Whether rejection of offer unreasonable – Loielo v Giles (No 2) [2020] VSC 864, Chen v Chan (No 2) [2009] VSCA 233 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | Ms K Foley with Mr J Tito and Mr MQ Nguyen | Smith & Tapper Criminal Lawyers |
| For the Second Plaintiff | In person | |
| For the Third Plaintiff | In person | |
| For the Defendants | Mr A Pound SC | Victorian Government Solicitor’s Office |
HIS HONOUR:
Consequent upon the proceeding being dismissed, the defendants have applied for costs. Up until 30 April 2021 there were three plaintiffs: Kerry Cotterill (the first plaintiff), Tony Pecora (the second plaintiff) and David Weisinger (the third plaintiff). By order of the Court,[1] Mr Weisinger and Mr Pecora were removed from the proceeding on the basis that they, unlike Ms Cotterill, no longer wished to advance their claims as formulated in the existing proceeding and wanted to make a direct challenge to the validity of the Public Health and Wellbeing Act 2008 (‘the Act’). The Court was of the view, that this would be most appropriately done by Mr Weisinger and Mr Pecora commencing a new proceeding and allowing Ms Cotterill to proceed with the claim as pleaded. The question of costs in respect of the second and third plaintiffs was reserved pending the determination of the proceeding continued by the first plaintiff.
[1]Cotterill v Romanes (Ruling No 1) [2021] VSC 234.
The defendants seek orders that their costs of the proceeding be paid by:
1.1the plaintiff (Kerry Cotterill) and the former second (Tony Pecora) and third plaintiffs (David Weisinger), up until the removal of the second and third plaintiffs from the proceeding on 30 April 2021; and
1.2 the plaintiff (Ms Cotterill) on and from 1 May 2021.
Some important dates
For present purposes, the following dates assume some significance:
(a) 27 August 2020 — the Stay at Home Directions (Restricted Areas) (No 14) (‘Directions No 14’) commences;
(b) 13 September 2020 — the first plaintiff receives an infringement notice for breach of Directions No 14;
(c) 15 October 2020 — proceeding commences;
(d) 27 October 2020 — the infringement notice received by the first plaintiff is withdrawn;
(e) 5 November 2020 — Mr Weisinger is joined to the proceeding as the third plaintiff;
(f) 6 November 2020 — High Court makes orders in Palmer v Western Australia;[2]
[2](2021) 95 ALJR 229; [2021] HCA 5 (‘Palmer’).
(g) 30 November 2020 — the original hearing date (7 December 2020) is vacated and matter adjourned pending publication of reasons by the High Court;
(h) 24 February 2021 — High Court publishes reasons in Palmer;
(i) 5 March 2021 — the defendants make without prejudice offer to settle on terms that the plaintiffs discontinue the proceeding with no order as to costs;
(j) 10 and 12 March 2021 — the solicitors file a notice of ceasing to act for the second and third plaintiffs, respectively;
(k) 30 April 2021 — the second and third plaintiffs are removed as plaintiffs in the proceeding;
(l) 21 May 2021 — the first plaintiff files consolidated submissions post Palmer;
(m) 11 June 2021 — the defendants file consolidated submissions post Palmer;
(n) 25 June 2021 — the first plaintiff files reply submissions;
(o) 29 July, 30 July and 2 August 2021 — hearing; and
(p) 17 August 2021 — judgment.
The defendants’ submissions
The defendants submit that costs should follow the event. They rely on the observation of the Court of Appeal in Chen v Chan (No 2),[3] that the outcome of the proceeding is the most important factor in the exercise of the discretion as to costs.
[3][2009] VSCA 233 (‘Chen’).
Further, as a result of the reasoning and outcome in Palmer, and their offer to settle on the basis that Ms Cotterill discontinue the proceeding with no order as to costs, it was not reasonable for her to continue and that this undercut, for the purpose of costs, any consideration that this was a litigation that involved broader public interest considerations and was not brought for personal self-interest.
The first plaintiff’s submissions
The first plaintiff submits that there should be no order as to costs. The first plaintiff relies on the decision of Ginnane J in Loielo v Giles (No 2 ).[4] The first plaintiff notes that she was successful on some issues, including standing, the construction question arising in relation to Directions No 14, her construction of sub-s 200(1)(b) of the Act, and the determination that the proceeding should be adjourned pending the High Court publishing its reasons in Palmer.
[4][2020] VSC 864 (‘Giles’).
The first plaintiff submits that the proceeding raised important questions of wider significance within the community. She notes that the COVID-19 restrictions are a matter of great significance, and that they have a very real practical impact on the day-to-day lives of Victorians, and Australians more broadly. The proceeding was brought with this in mind and with the intention of clarifying the scope and validity of the directions.
The first plaintiff also submits that whilst the decision in Palmer made her case more difficult, it could not be said that she was without a case to run. The first plaintiff disputes the defendants’ submission that she acted unreasonably in not accepting the offer of 5 March 2021. The offer was not expressed as a Calderbank offer[5] and contained no detail.
[5]Calderbank v Calderbank (1975) 3 All ER 333; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298.
Mr Weisinger and Mr Pecora’s submissions
Mr Weisinger submits that the Court does not have jurisdiction because, based on the reasons in Palmer, the validity of Directions No 14 did not involve a constitutional question and that therefore federal jurisdiction was not engaged.
Mr Pecora adopted that submission and said that he was under a duty to bring the proceeding to prevent a breach of the criminal and civil law. He referred to a raft of legislation that he said compelled him to commence the proceeding.
Consideration
The Court has jurisdiction. As originally formulated, the plaintiffs alleged that Directions No 14 were unconstitutional and directly in breach of the implied freedom of political communication. Ultimately, the first plaintiff alleged that Directions No 14 were not authorised by the Act on the basis that they infringed the implied freedom. Certainly on the first basis, and probably on the second, the matter involved the interpretation and application of the Constitution and the matter was in federal jurisdiction. The claim as originally formulated was not colourable and meant that the matter was then, and remained one, in federal jurisdiction. This Court has jurisdiction under s 39 of the Judiciary Act1903 (Cth). Of course, if the matter were not in federal jurisdiction, this Court would plainly have state jurisdiction to entertain a claim to the validity of executive action purportedly undertaken under state legislation.[6] There is no viable argument that this Court lacks jurisdiction altogether.
[6]Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1.
I turn then to the exercise of the discretion.
In Chen, the Court of Appeal said:
(1)The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2)The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
(3)Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4)A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5)Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.[7]
...
[7][2009] VSCA 233, [10] (citations omitted) (Maxwell P, Redlich JA and Forrest AJA).
There are a number of features of this litigation that, to an extent, mark it out from the usual.
First, the proceeding sought to challenge the validity of lockdown directions that applied throughout the state and which were extremely broad in their reach. In effect, the directions confined people to their homes, allowing people to leave only in limited circumstances that were circumscribed as to time and purpose. The effects of the directions were felt across the community and were onerous.
Second, the interests sought to be vindicated by the plaintiffs were not merely private or individual in character but were significant in the context of the system of government as a whole.
Third, where a serious and cogent challenge to the lawfulness of the directions is made in a properly constituted suit, it is of the highest importance that the lawfulness of the directions be determined by the courts in the exercise of independent judicial power. Although that is true in all litigation, the importance of the issues in dispute to the community as a whole, is relevant.
Fourth, at least as against the first plaintiff, she was the subject of an infringement notice that was later withdrawn. It is difficult to draw any firm conclusions about why it was withdrawn but I am persuaded that it was at least influenced by uncertainty over the construction of the directions. The construction adopted by the defendants, especially in their written submissions, did not quell the uncertainty.
Taking these matters into account, in my view, at least up until the High Court published its reasons in Palmer, the above provides a basis to depart from the usual order as to costs.
However, once the reasons of the High Court in Palmer were delivered, the mode of analysis adopted by the High Court in a directly analogous context meant that most of the submissions made by the first plaintiff could not succeed. I would not say that the proceeding had no prospects of success in light of Palmer but the first plaintiff chose to persevere with her case and must have done so in the knowledge that the prospects were very slim. The defendants do not rely on the letter of offer for the purpose of seeking indemnity costs but contend that it is relevant to both the assessment of the reasonableness of the first plaintiff persisting and where costs should fall given the result. I agree. I have taken into account the approach taken by Ginnane J in Giles but there are some significant differences and each case must be determined on its own circumstances.
Further, even in cases of public importance, the outcome of the proceeding remains a very powerful factor in the exercise of the discretion as to costs. Costs are not awarded to punish the unsuccessful party but to indemnify the successful party. In circumstances where the first plaintiff persisted in the face of Palmer, and having the costs consequences drawn to her attention specifically, it is not appropriate to deny to the defendants an indemnity in respect of the costs incurred post-Palmer. Finally, I accept that the defendants raised questions of standing and utility on which they failed. However, the time associated with these aspects of the hearing was relatively brief.
In my view, the dictates of fairness require that there should be no order as to costs up until 5 March 2021, being the date of the letter of offer from the defendants and being after a reasonable period of time for the plaintiff to digest the import and significance of Palmer. Thereafter, the first plaintiff should pay the defendants’ costs of the proceeding, including any costs reserved after that date. In the period between 5 March and 30 April 2021, Mr Pecora and Mr Weisinger did not formulate an alternative claim and had indicated that in light of Palmer they did not want to persist with the claim as formulated. In all of the circumstances there should be no order as to costs in respect of them.
SCHEDULE OF PARTIES
| KERRY COTTERILL | First Plaintiff |
| TONY PECORA | Second Plaintiff up until 30 April 2021 |
| DAVID WEISINGER | Third Plaintiff up until 30 April 2021 |
| and | |
| FINN ROMANES (in his capacity as the Deputy Public Health Commander) | First Defendant |
| BRETT SUTTON (in his capacity as the Chief Health Officer) | Second Defendant |
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