Cotterill v Romanes (Ruling No 3) - [2021] VSC 629

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;

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 Cotterill v Romanes (Ruling No 3)

Details

AGLC: Cotterill v Romanes (Ruling No 3) [2021] VSC 629
Case: [2021] VSC 629
Decision Date: 30 September 2021

CaseChat Overview and Summary

The case of Cotterill v Romanes (Ruling No 3) involved the parties contesting the costs associated with a legal dispute during the COVID-19 pandemic. The dispute arose from directions issued by the court to limit the number of reasons to leave home, which led to an argument regarding the appropriate application of costs. The case was heard in the Supreme Court of Victoria, which was tasked with determining whether the costs should follow the event, and if the rejection of an offer was unreasonable. The legal issues at the heart of this case involved the principles of costs allocation and the consideration of the parties' success on specific issues.

The court considered whether the costs should be awarded in accordance with the traditional "costs follow the event" principle, which generally favours the successful party. Additionally, the court assessed the reasonableness of the rejection of an offer to settle, referencing previous case law. The court referred to the decisions in Loielo v Giles (No 2) [2020] VSC 864 and Chen v Chan (No 2) [2009] VSCA 233 to guide its reasoning. These cases provided a framework for evaluating the parties' conduct and the implications of the rejection of a settlement offer on the costs award.

The Supreme Court concluded that the principles of costs allocation in the context of the COVID-19 pandemic should be applied flexibly. The court found that the rejection of the offer was not unreasonable given the circumstances. It also determined that the traditional "costs follow the event" principle was not strictly applicable in this instance. The court balanced the parties' success on various issues and the context of the pandemic in reaching its decision. The court awarded costs in a manner that it deemed just and equitable, taking into account the specific circumstances of the case and the pandemic's impact.

The final orders of the court reflected its decision on the costs allocation. The court ordered that the costs of the proceeding be awarded in a manner that recognised the unique challenges posed by the pandemic and the parties' conduct throughout the litigation process. The detailed reasoning provided by the court offered guidance for similar cases in the future, ensuring that the principles of justice and equity were upheld in the context of the ongoing global health crisis.

Orders