De Simone v Legal Services Board (costs)

The Legal Services Board brought an appeal against the decision of a Costs Assessor, who had ordered that the Board pay the costs of a claim brought by the Board exercising its rights of subrogation under s 3.6.19 of the Legal Profession Act 2004 (Vic) as third party proceedings in the Board’s appeal against a decision of the County Court. The Board sought a review of the costs order, contending that the costs of the subrogation claim should not have been awarded in its favour and that the amount of the costs awarded was excessive. The Board argued that the subrogation claim was a collateral matter to the main appeal and should not have been included in the costs order. The Board also sought a declaration that the costs of the subrogation claim were not payable by the Board, and an order that the costs were to be paid by the other party to the appeal.

The court considered whether the subrogation claim was a collateral matter to the main appeal, and if so, whether the costs of that claim should be included in the costs order. The court examined the nature of the subrogation claim and its relationship to the main appeal. The court noted that the subrogation claim was brought as third party proceedings in the Board’s appeal, and that the costs of those proceedings were included in the costs order. The court also considered the principles of costs in appellate proceedings, including the principles set out in Oxenbould v The Solicitors’ Trust (No 2) [2011] TASSC 63; The Solicitors’ Trust v Oxenbould [2013] TASFC 2; Oshlack v Richmond River Council [1998] 193 CLR 72. The court found that the subrogation claim was not a collateral matter to the main appeal, and that the costs of that claim should be included in the costs order. The court also found that the amount of the costs awarded was not excessive.

The court dismissed the Board’s appeal, and affirmed the costs order made by the Costs Assessor. The court held that the subrogation claim was not a collateral matter to the main appeal, and that the costs of that claim should be included in the costs order. The court also held that the amount of the costs awarded was not excessive. The court noted that the subrogation claim was an integral part of the Board’s appeal, and that the costs of that claim should be borne by the Board as the party who initiated the appeal. The court found that the Costs Assessor had exercised his discretion correctly in awarding the costs of the subrogation claim. The court made no order as to costs.