Di Lorenzo v The Magistrates' Court of Victoria
[2021] VSC 475
•9 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02195
| NERINA DI LORENZO & ORS (according to the schedule) | Plaintiffs |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA & ANOR (according to the schedule) | Defendants |
---
JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March, 9 August 2021 |
DATE OF JUDGMENT: | 9 August 2021 |
CASE MAY BE CITED AS: | Di Lorenzo v The Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2021] VSC 475 |
---
ADMINISTRATIVE LAW – Judicial review – Whether Magistrate erred when awarding costs in favour of self-represented litigant – Whether costs thrown away are costs in the proceeding – Whether exceptional circumstances – Whether to remit matter to Magistrates’ Court – Cachia v Hines (1994) 179 CLR 403 – Application allowed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Matthews | MNG Lawyers Pty Ltd |
| For the First Defendant | No appearance | |
| For the Second Defendant | Self-represented litigant |
TABLE OF CONTENTS
A. Background................................................................................................................................... 1
B. Does the Court have jurisdiction?............................................................................................. 3
C. Likely errors in the certified extracts from the Magistrates’ Court.................................... 3
D. The council parties’ submissions............................................................................................. 5
E. Did the learned Magistrate err when fixing costs at $5,000?................................................ 5
F. Did the learned Magistrate err by failing to consider whether there were ‘exceptional circumstances’?............................................................................................................................. 8
F.1. Construction of s 111 of the Act........................................................................................... 8
F.2. Did the learned Magistrate have regard to s 111 of the Act?........................................ 10
G. Other matters.............................................................................................................................. 10
H. Disposition.................................................................................................................................. 10
HIS HONOUR:
A. Background
The plaintiffs are or were at relevant times all associated with the Moreland City Council. On 15 January 2019, Mr James Weston, a lawyer who then worked for the firm on record for the plaintiffs in this proceeding, MNG Lawyers Pty Ltd, commenced a separate proceeding in the Magistrates’ Court at Broadmeadows under the Personal Safety Intervention Orders Act 2010 (‘the Act’) on behalf of each plaintiff for a personal safety intervention order against Mr Lazarides, the second defendant. These were proceedings K10123370, K10123020, K10122537, K10122093, K10121657 and K10121850. Mr Weston utilised s 15 of the Act, which allows a proceeding to be brought, if the affected person is an adult, by any other person with the written consent of that person. Under the definition of ‘party’ in s 4 of the Act, both Mr Weston and the affected persons (that is, the plaintiffs in this proceeding) were parties to the applications under the Act against Mr Lazarides. I will refer to these proceedings as the council members’ proceedings.
On 22 March 2019, Mr Lazarides commenced proceeding number K10744911, also in the Magistrates’ Court, under the Act for a personal safety intervention order against Mr Weston himself. On 4 October 2019, Mr Lazarides commenced proceeding number K12586779 in the Magistrates’ Court for a personal safety intervention order against Ms Sonia Valvo. Ms Valvo was also an employee of the Moreland City Council, and she also retained MNG Lawyers to represent her. Each of these proceedings were set down for hearing on 19 March 2020; that is, the proceedings that were listed to be heard were:
(a) The six council members’ proceedings against Mr Lazarides (being proceedings numbered K10123370, K10123020, K10122537, K10122093, K10121657 and K10121850);
(b) Mr Lazarides’ proceeding against Mr Weston (being proceeding number K10744911 ); and
(c) Mr Lazarides’ proceeding against Ms Valvo (being proceeding number K12586779 ).
By this time, Mr Weston had ceased to work for MNG Lawyers, and the council members’ proceedings were being handled by someone else at this firm.
On 16 March 2020, counsel who had been retained by the council parties, and who had had an extensive involvement in the matter, notified his instructing solicitors that he had developed symptoms of the flu and on medical advice was told that he could not attend Court out of a concern that he might have the coronavirus. On 17 March 2020, counsel emailed the court. On 18 March 2020, MNG Lawyers emailed and called the Court and advised it that the council parties would be applying for an adjournment. Mr Lazarides was not included in these emails, but he has no email address. On 18 March 2020, Ms Ribeiro of MNG Lawyers telephoned Mr Lazarides and explained that the council parties would be seeking an adjournment. Mr Lazarides said that he would not consent to this adjournment.
On 19 March 2020, the adjournment application was heard. Ms Ribeiro appeared for the council members, and also for Ms Valvo. Mr Lazarides appeared for himself, as he had throughout. Mr Weston was present in Court, in his capacity as a defendant to proceeding number K10744911. Ms Ribeiro did not act for him. After hearing argument, the learned magistrate:
(a) granted the adjournment; and
(b) made an order for costs in Mr Lazarides’ favour in the amount of $5,000.
On 15 May 2020, the council members commenced this proceeding, in which they seek orders that:
(a) the costs orders made ‘against the Plaintiffs’ on 19 March 2020 be quashed.
(b) the learned magistrate (who heard the proceedings on 29 July 2020 and who refused the application to recuse herself) be prohibited from continuing to hear both the council members’ proceedings against Mr Lazarides and from hearing Mr Lazarides’ proceedings against Mr Weston and Ms Valvo.
I was informed by counsel, who appeared for the council members, and Mr Lazarides confirmed, that the council members’ proceedings have since been withdrawn and that the questions raised in this proceeding in relation to the costs ordered on 19 March 2020 are the only outstanding issues in that litigation.
B. Does the Court have jurisdiction?
The Act gives a right of appeal to the County Court against an order of the Magistrates’ Court.[1] Such an appeal is an appeal in the nature of a rehearing.[2] The Act does not preclude a party appealing under s 109 of the Magistrates’ Court Act 1989.[3] Nor does the Act in terms preclude a party from bringing proceedings under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015, as the plaintiffs have here.
[1]Personal Safety Intervention Orders Act 2010 (Vic) s 91–2.
[2]Ibid s 96.
[3]Ibid s 126.
In these circumstances, I am satisfied that I have jurisdiction to entertain the applications. At most, the availability of other methods of appeal might in an appropriate case cause this Court to exercise its discretion not to grant prerogative relief.[4] In all the circumstances of this case, I am of the view that a proceeding brought under ord 56 is an acceptable process to have the issues raised in this appeal determined.
[4]Cf Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79–80 [15] (Gaudron, Gummow, Hayne and Callinan JJ).
C. Likely errors in the certified extracts from the Magistrates’ Court
The transcript records the learned Magistrate saying the following:[5]
I’m imposing an amount of costs against the applicants in this matter in a total – in a total of $5,000 to cover the expenses of Mr Lazarides … in the preparation – the time, effort and preparation in building up to this day in court. It was booked for a two-day hearing, which would have meant that he would have had to have cross-examine all of the AFMs [scil, affected family members, here, the plaintiffs].[6]
[5]Mr Lazarides did not contend that the transcript was not an accurate record.
[6]Emphasis added.
However, the certified extracts, which are documents signed by the Registrar of the Magistrates’ Court of Victoria, state that in each of the proceedings the order entered into the register was:
JAMES WESTON to pay BILL LAZARIDES costs $5,000.00
This raised a concern because, if the certified extracts were correct, the costs orders the subject of this proceeding were not made against the plaintiffs, but were instead made against Mr Weston, who was not a party to this proceeding.
The plaintiffs submitted that, when the transcript is read as a whole, it is apparent that the learned Magistrate intended to, and indeed orally did, make costs orders against the plaintiffs, and that the certified extracts are mistaken. Mr Lazarides, to his credit, accepted that, although he considered the costs order to be made against the Council itself, such that it was to the Council (rather than the plaintiff’s as individuals) that he would look to obtain payment, he did not understand, and he did not submit, that the costs order was intended to be made against Mr Weston himself.
This conflict, among other matters, was discussed before me on 23 March 2021. After the lunch break, Mr Weston appeared and confirmed that he had (albeit only recently) been made aware of this proceeding, and that he did not seek to be added as a party. Neither the plaintiffs nor Mr Lazarides applied to have him added as a party. The plaintiffs advised me from the bar table that they intended to approach the Magistrates’ Court to see if they could rectify the conflict between what they contended was the effect of the order as pronounced and the order as recorded in the court register, and sought an adjournment of the proceeding to allow them to do so. Mr Lazarides did not oppose this course.
After completing oral arguments on the matters of substance raised in the originating motion, the Court was adjourned to a date to be fixed with a view to reconvening if required in order to consider whether and if so what technical problems arose by reason of the fact that, on the plaintiffs’ argument, the order as pronounced in Court differed from the order as recorded in the Court register, once the plaintiffs had approached the Magistrates’ Court.
The plaintiffs’ solicitors communicated with the Magistrates’ Court seeking amended certified extracts to confirm that the costs orders were in fact made against the council members themselves (being the plaintiffs in this proceeding). This resulted in new certified extracts being provided, each of which has confirmed that a costs order was in fact made against the council member. The proceeding has returned for further hearing today.
I am satisfied by the material filed by the plaintiffs’ solicitors, read with the transcript, that orders were made against the individual plaintiffs and accordingly that this proceeding is properly brought.
D. The council parties’ submissions
The council parties’ submissions boil down to assertions that the discretion as to costs miscarried because the learned Magistrate:
(a) failed to have regard to the legal requirement in s 111(1) read with s 111(3)(a) of the Act that each party must bear their own costs ‘of the proceeding’ unless ‘exceptional circumstances warrant otherwise in a particular case’; and
(b) failed to have regard to, and to apply, the legal principle that a self-represented litigant is not entitled to recover as ‘costs’ compensation for the time spent preparing for or conducting his or her own case, and fixed costs at $5,000 when there was no basis upon which that figure could be lawfully reached.
I propose to deal with these in reverse order.
E. Did the learned Magistrate err when fixing costs at $5,000?
As is apparent from the passage from the transcript set out in para 10 above, her Honour fixed the amount of the costs payable at $5,000 on the basis that that was a reasonable sum ‘to cover the expenses’ of Mr Lazarides in the preparation, time and effort that he had spent in preparing for the hearing.
Mr Lazarides appeared for himself at the 19 March 2020 hearing. It is apparent that he did not have any solicitors on the record as acting for him in the Magistrates’ Court. Were there any doubt, Mr Lazarides confirmed to me that he had not retained lawyers in the period leading up to the 19 March 2020 hearing. Mr Lazarides did not advise the learned Magistrate that he had incurred disbursements of any amount, let alone in the amount of $5,000.
Mr Lazarides confirmed to me that the only actual out-of-pocket expenses that he had incurred that had been wasted because of the adjournment were the costs of him travelling to and from the Court, and the costs of him printing out various pages that were no longer usable because they were now written on or otherwise in a poor state.
I am satisfied that when her Honour used the phrase ‘to cover the expenses’ of Mr Lazarides, she was not intending to estimate the disbursements or liabilities Mr Lazarides may have incurred. Rather, her Honour reached that figure by allowing an amount that she thought was a fair sum to compensate Mr Lazarides for the time and effort that he had gone to in order to prepare for the hearing. This is apparent not just from the lack of any discussion about actual out-of-pocket expenses, but also from the fact that in the lead up to reaching that figure, her Honour asked Mr Lazarides:
[T]ell me, have you put a lot of time and effort into defending and preparing for your defence in respect of these applications?
and then said:
I have to work out … how much time and effort you’ve put into prepare for a two day …
And, after the passage set out in para 10 above, when the solicitor appearing for the plaintiffs raised the point that Mr Lazarides was not a solicitor, the learned Magistrate said:
He’s not a qualified lawyer … But it’s still a whole lot of time and effort …
Mr Lazarides did not dispute that that was, in substance, the approach taken by the learned Magistrate. But he submitted that such an approach was lawful. His argument, as I understood it, was that the Court had the power to award costs in this manner because: he was a vulnerable person; the Court had effectively unlimited monetary jurisdiction; the adjournment, in light of the way he had historically been treated amounted to an ‘exceptional circumstance’; and the Court had a broad judicial discretion in relation to costs.
I disagree. The purpose of a costs order is to reimburse a party for moneys actually spent or liabilities incurred. A party, who is not him or herself a lawyer, who acts for him or herself, will be entitled, if costs are ordered, to recover disbursements that have been incurred, but is not entitled to recover as ‘costs’ a sum representing the stress that they have been under or the value of the time that they have spent preparing for their case. As the High Court said in Cachia v Hines:
It is fundamental to the appellant's argument that the time he lost in preparing and conducting his case constitutes ‘costs’ within the meaning of this rule. He is, however, unable to sustain that proposition. The ‘costs’ provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of ‘costs’.[7]
[7](1994) 179 CLR 403, 409 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ). See also, Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555, 1012 [1] (Kiefel CJ, Bell, Keane and Gordon JJ); Ganesh v National Australia Bank Ltd [2021] VSCA 45, [89] (McLeish, Sifris and Kennedy JJA).
Accordingly, in my view, because her Honour assessed costs by reference to the time and effort that Mr Lazarides had put in to prepare for his case, rather than limiting her consideration to what expenses he, as a self-represented litigant, had incurred, her Honour’s discretion miscarried.
Further, I consider that the assessment of costs at $5,000 was not reasonably open in the sense that there was no material before her Honour that could justify that figure if the proper legal approach were applied. Accordingly, I infer that her Honour either misapplied the law in reaching her assessment of costs at $5,000, or made a finding that no reasonable Magistrate could have made on the evidence.
These are sufficient reasons to set aside the costs order made.
F. Did the learned Magistrate err by failing to consider whether there were ‘exceptional circumstances’?
Section 111 of the Act provides as follows:
Costs
(1) Each party to a proceeding for a personal safety intervention order under this Act must bear the party's own costs of the proceeding.
…
(3) Despite subsections (1) … —
(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.[8]
[8]Emphasis added.
There are two questions that arise:
(a) First, whether, on a proper construction, the requirement in s 111 of the Act that there be ‘exceptional circumstances’ before costs are ordered applies where the costs under consideration are costs thrown away by reason of an adjournment, rather than costs ‘of the proceeding’ in a narrow sense. The plaintiffs contended that this is the position; and
(b) Second, if so, whether her Honour had regard to the requirements of s 111 of the Act when she exercised her discretion.
Although it is not strictly necessary for me to resolve the issue of construction, given that the matter was argued, it seems useful for me to express my view.
F.1. Construction of s 111 of the Act
The issue is whether costs thrown away by reason of an adjournment are costs ‘of the proceeding’ as that phrase is used in s 111(1) of the Act. It is certainly arguable that they are not, in the sense that costs ‘thrown away’ may be seen as additional, or duplicated, costs that sit outside the costs ‘of the proceeding’. The distinction is exemplified by the fact that if costs are wasted because of an adjournment, a Court will typically have the option of either ordering that those costs be paid, or of ordering that those costs be costs ‘in the proceeding’. And there is an identifiable public policy purpose for which the legislature might have intended to include this distinction when it enacted s 111 of the Act, because it would create a situation where each party would bear their own essential costs of bringing or defending a proceeding, but would be liable in the event that they caused unnecessary or additional costs to be incurred by the other party.
However, I accept the plaintiffs’ submission that when s 111 is read as a whole, it is apparent that it is intended to apply to all costs associated with a proceeding, including costs thrown away by reason of an adjournment. In my view, the fact that ss 111(3)(a)–(b) use the broad phrase ‘an order about costs’ or just ‘costs’, rather than adopting the arguably narrower phrase ‘costs of the proceeding’, and are introduced with the word ‘despite’, compels that conclusion. The use of the word ‘despite’ suggests that s 111(3)(a) operates as an exception to s 111(a). The category of exceptional costs orders provided for in s 111(3)(a) ought be no wider than the category of costs orders to which the limitation in s 111(1) of the Act applies. As an order that a party pay costs thrown away would fall within the broad phrase ‘an order about costs’, being the phrase used in s 111(3)(a) of the Act, that is, within the exception provided for, it follows that it must also fall within the initial limiting phrase ‘costs of the proceeding’. The same applies in relation to s 111(4), where the unqualified ‘costs’ is used.
For this reason, I conclude that a Court hearing a proceeding for a personal safety intervention order may only order that a party pay costs thrown away by reason of an adjournment if the Court decides that there are exceptional circumstances that warrant making such an order.
This is also consistent with the purpose identified in s 2(a) of the Act that it provide an ‘accessible’ system of personal safety intervention orders. The policy being that parties ought bear their own costs of and associated with an application for a personal safety intervention order, with the protection that if one party causes another party to incur additional costs, those may be ordered to be paid but only if there are ‘exceptional circumstances’.
F.2. Did the learned Magistrate have regard to s 111 of the Act?
Her Honour did not refer to s 111 of the Act, or to the need for there to be ‘exceptional circumstances’ in the course of her discussions with the parties prior to making her order. The plaintiffs submit that this absence justifies an inference that her Honour did not have regard to those matters. Mr Lazarides submits to the contrary that because her Honour is an experienced and competent practitioner it ought be assumed that she was well familiar with s 111 of the Act and the lack of specific reference to it does not mean that it was not considered but means only that her Honour did not feel it necessary to articulate that requirement.
I prefer the plaintiffs’ submissions. In my view, if her Honour had in mind s 111 of the Act when she was exercising her discretion as to costs, she would have raised in her discussion with the parties its requirement that there be ‘exceptional circumstances’. For this reason, too, in my view her Honour’s discretion miscarried, and the costs order ought be quashed.
I note that neither the plaintiffs nor Mr Lazarides drew her Honour’s attention to s 111 of the Act. But this does not mean that the discretion did not miscarry.
G. Other matters
The plaintiffs’ originating motion also sought an order that the learned Magistrate be prohibited from continuing to hear the various proceedings, on the grounds of apprehended bias. In the circumstances, the plaintiffs advised that they were not persisting with this application.
H. Disposition
In light of my findings, there should be judgment for the plaintiffs and I will order that the costs orders made by the Magistrates’ Court of Victoria on 19 March 2020 in proceedings K10123370, K10123020, K10122537, K10122093, K10121657 and K10121850 be quashed.
The plaintiffs submitted that I ought not remit Mr Lazarides’ applications for costs to be redetermined, because it was not open to a Magistrate to determine that there were exceptional circumstances sufficient to justify a costs order being made.
I discussed with Mr Lazarides today whether, if I concluded that the costs order ought be quashed, he wanted me to make an order remitting the matters to be redetermined in the Magistrates’ Court. Although Mr Lazarides contended that there were exceptional circumstances, particularly the presence of the Covid-19 pandemic, he indicated that, in all the circumstances, he did not wish to have the matters remitted.
Accordingly, I do not propose to make an order remitting the costs application for redetermination.
The plaintiffs sought a costs order against Mr Lazarides. Costs ought follow the event. I will make an order that Mr Lazarides pay the plaintiffs costs of this proceeding. I will grant Mr Lazarides a certificate under the Appeal Costs Act 1998.
Finally, I will make an order amending the first name of the fourth plaintiff from ‘Gerrry’ to ’Gerry’, as that is the correct spelling and ‘Gerrry’ was a mistaken spelling of his name in the originating motion.
SCHEDULE OF PARTIES
BETWEEN
| NERINA DI LORENZO | First Plaintiff |
| LEONIE DE JONG | Second Plaintiff |
| SANDRA TROISE | Third Plaintiff |
| GERRY BLEFARI | Fourth Plaintiff |
| OSCAR YILDIZ | Fifth Plaintiff |
| JOHN KAVANAGH | Sixth Plaintiff |
| – and – | |
| THE MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| BILL LAZARIDES | Second Defendant |
1
0