Hammond (a Pseudonym) v Secretary to Department of Health and Human Services [No 2]

[2019] VSCA 45

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0246

DANYL HAMMOND (a Pseudonym)[1]	Appellant
v
SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES	First Respondent
and
THE ATTORNEY-GENERAL OF VICTORIA	Second Respondent
and
THE DIRECTOR OF PUBLIC PROSECUTIONS [No 2]	Third Respondent

[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Appellant.

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JUDGES:	PRIEST and T FORREST JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2018
DATE OF JUDGMENT:	7 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 45
JUDGMENT APPEALED FROM:	Re SC [2018] VSC 642R (Champion J)

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APPEAL – Costs – Appellant’s appeal successful – Matter remitted to trial division for determination – Appellant sought costs against Attorney General, the only party opposing the appeal – Whether exceptional circumstances exist to depart from usual rule that costs follow the event – Attorney General fulfilling an important public interest function – Appellant funded by Victoria Legal Aid – Exceptional circumstances found in totality of arguments advanced – No order as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C M Harris QC with Ms G Cafarella	Victoria Legal Aid
For the Secretary, Department of Health and Human Services	Ms P C Knowles	Department of Health and Human Services
For the Attorney-General	Mr L Brown and Mr D P McCredden	Victorian Government Solicitor
For the Director of Public Prosecutions	Mr J McWilliams	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
MACAULAY AJA:

1. On 21 December 2018 the Court published its reasons for allowing the appellant’s appeal and made orders remitting the matter to the trial division for determination.   As there was a dispute about the costs of the appeal the parties were directed to file and serve written submissions on costs, and have done so.

1. In short, the appellant sought his costs of the appeal against the Attorney-General, the only party that opposed the appeal.  The Attorney-General submitted there should be no order as to costs.  Having read and considered the submissions, for the reasons that follow we agree with the Attorney-General’s submission.

1. As may be expected, it was common ground that the Court has a broad discretion in relation to costs orders pursuant to s 24 of the Supreme Court Act 1986, the usual rule is that costs follow the event and the appellant was successful on the appeal.[2]  The Attorney-General submitted, however, that exceptional circumstances existed to justify a departure from the usual rule.

   [2]There was some debate whether the appellant succeeded on every ground of his appeal. For the purpose of this ruling it is neither necessary nor appropriate to address that debate.

1. Several propositions were advanced why the Court should find exceptional circumstances in the present case adapting, by analogy, the various considerations taken into account by Edelman J in Sea Shepherd Australia Ltd v The State of Western Australia[3] in which a similar argument was made.

   [3]Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S).

1. In summary, those propositions were that the Attorney-General had, in compliance with the Court’s direction in NOM v Director of Public Prosecutions,[4] sought to assist the court by adopting a clear and unequivocal position that was open to be put; in doing so was fulfilling an important public interest function;[5] and had argued a position which was neither frivolous or lacking in substance and which concerned a novel question of law. Moreover, so it was submitted, appeals under s 34 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (as this was) resemble criminal appeals against sentence in which, in the ordinary course, appellate courts do not award costs for or against the Crown; the appellant had no grounds for an expectation to receive his costs given the lack of precedent for such orders; being funded by Victorian Legal Aid, the appellant himself did not personally incur any legal expense; and, finally, ordering costs against the Attorney-General in favour of Victorian Legal Aid would amount to transferring funds from one emanation of the State to another.

   [4]NOM v Director of Public Prosecutions (2012) 38 VR 618 at 630 [35] (‘NOM’).

   [5]NOM [36]; and see Oshlack v Richmond River Council (1998) 193 CLR 72

1. We accept, as the appellant correctly pointed out, that a court may make an order in favour of a legally assisted person pursuant to s 46 of the Legal Aid Act1978.  But having that power does not always mean that a court should order such costs to be paid.

1. Although no particular argument on its own amounts to an exceptional circumstance that would necessarily justify a departure from the usual rule, we consider that, in totality, the several arguments raised by the Attorney-General do justify such a departure.

1. Accordingly there will be no order as to costs.

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