Do v Registrar of Births, Deaths and Marriages (No 2)

[2023] VSC 255

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04046

QUAN SY DO	Appellant
v
REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES	First Respondent
THI HAI VAN KIEU	Second Respondent

---

JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 May 2023
CASE MAY BE CITED AS:	Do v Registrar of Births, Deaths and Marriages (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 255

---

COSTS – Application for leave to appeal and appeal of VCAT decision – Offer by one respondent to consent to withdrawal of proceeding with no further costs payable by applicant – Whether the offer of compromise procedure applies in a proceeding for leave to appeal from a decision by VCAT affirming a decision of the Registrar of Births, Deaths and Marriages – Whether failure to accept offer warrants departure from the usual order as to costs – Where an offer involves the abandonment rather than the compromise of the proceeding – Calderbank v Calderbank (1975) 3 All ER 333 – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Levine	Maciel Pizzorno & Co Lawyers
For the First Respondent	Mr L Brown (Crown Counsel for the State of Victoria) and Ms J Kretzenbacher	Victorian Government Solicitor
For the Second Respondent	Ms K J Le Faucheur	Nguyen Do Lawyers

HIS HONOUR:

1. On 20 April 2023, I published reasons in which I explained why I proposed to grant leave to appeal but to dismiss an appeal by Mr Do, the appellant, against an order of the Victorian Civil and Administrative Tribunal (‘VCAT’) affirming a decision made by the Registrar of Births, Deaths and Marriages (‘the Registrar’), the first respondent, to record in a death certificate that Ms Kieu, the second respondent, was in a domestic relationship with Mr Do’s father at the time of Mr Do’s father’s death.  Ordinarily, costs would follow the event and, unsurprisingly, Mr Do did not submit that he ought not to be ordered to pay the respondents’ costs.  The Registrar sought costs on the standard basis and that was not resisted.  Ms Kieu, however, anticipated an application that her costs be ordered other than on the standard basis but was not then in a position to make that application.  I made orders providing for the exchange of material relating to the question of costs and indicated that I would decide that matter on the papers.

1. Ms Kieu sought her costs on the indemnity basis as from 11:00am on 28 November 2022.  She relied on an offer of compromise prepared in accordance with ord 26 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) dated 24 November 2022 accompanied by a letter of the same date by which the offer of compromise was served.  The offer was to resolve the proceeding on the basis that Mr Do withdraw his application and pay Ms Kieu costs of $1,100. 

1. In an affidavit filed in support of the application, Ms Kieu explained that on 15 July 2022 the Registrar filed a summons due to Mr Do’s failure to comply with procedural orders and that summons was listed for hearing before the Court on 10 August 2022.  The parties reached an accommodation and the directions hearing did not go ahead.  On 17 August 2022, Keith JR made orders, by consent, varying the timetabling orders previously made and ordering Mr Do to pay the costs of the first and second respondents to be taxed in default of agreement.  Ms Kieu then forwarded to Mr Do a copy of an invoice from her lawyers in the amount of $1,100 that was expressed to be for the legal work performed relating to the 15 July 2022 summons.

1. The offer of compromise was from Ms Kieu only. Mr Do submitted that this meant that the offer failed to comply with the formal requirements of r 26.07.2(2)(b) of the Rules.  Rule 26.07.2(2)(b), however, is dealing with when r 26.07.1 applies, and r 26.07.1 sets out the powers that arise if an offer has been accepted but not complied with, which is not this case. That said, it is difficult to see how the compromise procedure set out in ord 26 applies to an application for leave to appeal from an order of VCAT affirming a decision made by the Registrar. Mr Do was probably not making a ‘claim’ against Ms Kieu on which he obtained a judgment so as to enliven the costs consequences provided for under r 26.08(4) of the Rules. He was not seeking any relief against Ms Kieu. Rather, he was asserting that the Registrar had erred, and Ms Kieu was a party interested in that issue. For this reason, I propose to treat the offer of compromise as an offer relevant to the exercise of the discretion as to costs, but not one that creates an entitlement in Ms Kieu to her costs from the dates of its rejection on the indemnity basis unless the Court otherwise orders. The offer and accompanying letter should be seen as amounting to a ‘Calderbank offer’.[1]  The question, then, is whether Mr Do’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs.[2]  This will be the case if it was ‘unreasonable’ in the circumstances for Mr Do not to have accepted.[3]  Ordering costs other than on the usual basis following the unreasonable rejection of an offer serves the public purpose of encouraging parties to make and carefully to consider sensible offers and to resolve their disputes.

   [1]Calderbank v Calderbank (1975) 3 All ER 333.

   [2]Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, 441 [20] (Warren CJ, Maxwell P, Harper AJA).

   [3]Ibid [23].

1. Although the offer did not in terms include the Registrar, on 28 November 2022 the Registrar informed Mr Do that the Registrar would consent to having the application discontinued with no further order as to costs.  This is significant because, but for this indication, if Mr Do had accepted the offer and withdrawn his application, he would have been liable to pay costs to the Registrar.[4] 

   [4]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.15.

1. The situation, then, was that in late 2022, when all or most of the relevant material was available for consideration, Mr Do was given an opportunity to discontinue his application in circumstances where he would then not be liable to pay any legal costs to the respondents beyond those that he had already been ordered to pay.  He did not take that opportunity, pressed on, and was unsuccessful. 

1. Even so, in my judgement Mr Do’s failure to accept the offer is insufficient reason to depart from the usual orders as to costs in the circumstances of this case.  The costs of the 15 July 2022 summons were payable on the standard basis.  Ms Kieu was seeking all her costs of that summons.  It may be that all of her costs were recoverable on the standard basis, but that is not necessarily the case.  More fundamentally, however, the application was, unlike an action for damages, for example, an ‘all or nothing’ case.  Mr Do was not being asked to compromise his claim so much as being asked to give up his claim.  There was an element of compromise, of course, because the offer involved the respondents’ bearing their own costs of the proceeding to that date (save for the costs of the 15 July 2022 summons), and those costs would not be insignificant.  Clearly, with hindsight, Mr Do would have been better off had he accepted the offer.  But one has to put oneself in his shoes at the time the offer was made.  His claim was an arguable one, as reflected by the fact that leave to appeal was granted.  It was not unreasonable for him not to withdraw it.  In my evaluation, practical justice between the parties is done if Mr Do is ordered to pay the respondents their costs on the standard basis.

1. I would have come to the same decision even if the offer of compromise had created a situation where Ms Kieu was entitled to her costs on the indemnity basis unless the Court otherwise ordered. 

1. In most cases, parties should be prepared to address the questions of costs that arise on the delivery of judgment.  If that is not done, then further costs are incurred, as happened here, by the preparation of written submissions and possibly affidavits deposing as to uncontroversial matters that could have been dealt with orally.  Mr Do should not have to pay Ms Kieu’s costs of the application for indemnity costs.  I will clarify that the costs payable do not include those costs.

1. I will order as follows:

(a)   There be leave to appeal.

(b)  The appeal be dismissed.

(c)   The applicant pay the respondents’ costs including any reserved costs to be taxed in default of agreement on the standard basis, such costs not to include the costs of the second respondent’s application for costs on the indemnity basis.