Jack Cai v The County Court of Victoria and Michelle Corbett of the Traffic Camera Office

[2017] VSCA 278

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0031

JACK CAI	Applicant
v
THE COUNTY COURT OF VICTORIA	First Respondent
MICHELLE CORBETT of the TRAFFIC CAMERA OFFICE	Second Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 278
JUDGMENT APPEALED FROM:	Cai v County Court of Victoria & Ors [2016] VSC 427 (John Dixon J)

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COSTS – Application for leave to appeal against a decision refusing judicial review refused – Unrepresented applicant – Costs awarded to the second respondent fixed at $7500.

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APPEARANCES:	Counsel	Solicitors
No appearances.

PRIEST JA
BEACH JA:

1. On 29 July 2016, John Dixon J refused relief to the applicant in proceedings in which he had sought by way of judicial review to challenge certain orders of the County Court relating to a subpoena to produce documents.[1]

   [1]Cai v The County Court of Victoria & Ors [2016] VSC 427.

1. We refused leave to appeal against that decision on 11 May 2017.[2]  With respect to the costs of the application in this Court, we gave leave to the parties to file written submissions.[3]

   [2]Cai v The County Court of Victoria & Ors [2017] VSCA 109.

   [3]Ibid [30].

1. In the result, the second respondent filed written submissions relating to costs, dated 25 May 2017.  The applicant, however, did not file any submission, apparently choosing instead to seek special leave to appeal against this Court’s decision in the High Court.  The High Court refused that application on 14 September 2017.[4]

   [4]Jack Cai v The County Court of Victoria & Anor [2017] HCASL 218.

1. The second respondent seeks costs on an indemnity basis, submitting, first, that the application for leave to appeal was totally without merit;  secondly, that the applicant made improper allegations against the primary judge and counsel for the second respondent; and, thirdly, that the applicant has made other improper allegations against judges, counsel and solicitors, in documents and in previous hearings, and had not abided by warnings that he not do so.

1. Further, the second respondent submits that so as to ‘avoid any further litigation between the parties the second respondent requests this court to make the costs order for a specified amount’.  The total claimed — justified by a schedule setting out the work done by the solicitors and counsel — is $11,482.70.

6 By virtue of rule 64.38(1) of the Supreme Court (General Civil Procedure) Rules 2015, the Court of Appeal ‘may make any order for the whole or any part of the costs of an application or appeal as it thinks fit’.

1. In Major Engineering Pty Ltd v Helios Electrohead Pty Ltd (No 2),[5] the Court (Chernov and Ashley JJA and Mandie AJA) observed:[6]

That the resolution of the question of costs is in the Court’s discretion is made plain by the provisions of s 24 of the Supreme Court Act 1986 and [r 64.38] of the Rules of Court.  And, as Bray CJ said in Cretazzo v Lombardi,[7] this discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation.  Generally, the costs of an appeal, like the costs of a trial, follow the event[8] … It is also the case that the function of an order for costs is compensatory.[9]

[5][2006] VSCA 114.

[6]Ibid [5].

[7](1975) 13 SASR 4 at 11.

[8]Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271 per Mahoney JA.

[9]Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J.

1. No reason has been advanced by the applicant as to why the costs in this Court should not follow the event.  Plainly they should.  As we have indicated, however, the second respondent submits that the application for leave to appeal was totally without merit, that fact justifying an award of indemnity costs. 

1. In many cases, if an applicant should have recognised that an application for leave to appeal was hopeless, that is a factor that will justify an award of costs on an indemnity basis.[10]  The major difficulty that has plagued the course of these proceedings, however, is the fact that the applicant has chosen to be unrepresented, so that by choice he has deprived himself of the advantage of coolly objective legal advice.  Thus, we think it unlikely that the applicant appreciated that his case in this Court was hopeless.  On one view, of course, the unhappy consequences of the fact that the applicant chose not to be represented should not be visited on the second respondent.  That said, in the circumstances of this case, we do not see that the applicant’s scattergun allegations of impropriety — no sensible person would have taken them seriously — would justify departure from an award of costs on a standard basis.

   [10]See Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 265.

1. In the end, taking a broad and practical approach — being mindful of the fact that the second respondent has asked us to fix an amount of costs, and being cognisant of the fact that John Dixon J fixed the costs in the proceeding before him at $5000 — we would award costs to the second respondent, and fix the sum of those costs at $7500 (being fractionally less than two thirds of the sum claimed).

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