Kaur v RMIT [No 2]
[2024] VSCA 299
•6 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0064 |
| DILPREET KAUR | Applicant |
| v | |
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY [NO 2] | Respondent |
---
| JUDGES: | WALKER JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 6 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 299 |
| JUDGMENT APPEALED FROM: | (Ruling, Supreme Court of Victoria, Watson J, 21 June 2024) |
---
PRACTICE AND PROCEDURE – Costs – Court refused application for leave to appeal and determined it was ‘totally without merit’ pursuant to s 14D(3) of Supreme Court Act 1986 – Whether respondent entitled to award of costs on indemnity basis – Whether applicant knew or should have known that case was hopeless – Where applicant self-represented litigant – Applicant did not appear to understand that case was hopeless – Order for costs on standard basis.
Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41; Riaz v City of Greater Dandenong [2023] VSCA 190; Cai v County Court of Victoria [2017] VSCA 278, referred to.
---
| Counsel | |||
| Applicant: | Not applicable | ||
| Respondent: | Ms S Kelly | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondent: | Hall & Wilcox | ||
WALKER JA:
The applicant, Ms Kaur, filed an application for leave to appeal against a decision of Watson J. I dismissed that application on 11 November 2024 and determined that the application was ‘totally without merit’ pursuant to s 14D(3) of the Supreme Court Act 1986.[1] I also dismissed Ms Kaur’s application to adduce further evidence.[2]
[1]Kaur v RMIT [2024] VSCA 264.
[2]Kaur v RMIT (Supreme Court of Victoria, Court of Appeal, Walker JA, 12 November 2024).
On 11 November 2024, I made orders that the parties file and serve any submissions they wished to make about the costs of the application for leave to appeal. The respondent (‘RMIT’) filed submissions in accordance with that order. Ms Kaur did not file any submissions.
RMIT sought an order that Ms Kaur pay its costs of the application for leave to appeal on the indemnity basis. It argued that a court may order costs on the indemnity basis where a party, properly advised, knew or should have known that it had no chance of success and yet has persisted with its claim.[3] It argued that this Court’s dismissal of the application for leave to appeal, and its determination that the application was ‘totally without merit’, demonstrated that the application was ‘hopeless and bound to fail’. RMIT said further that Ms Kaur should have known from the ‘clear and simple terms’ of the trial judge’s ruling that the application had no prospect of success. It said that it had consequently been ‘put to the expense of defending an application for leave to appeal that should not have been commenced’.
[3]It cited Banksia Securities Ltd v Insurance House Pty Ltd (Costs) [2020] VSC 234, [15] (John Dixon J) and Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41, 49 [15] (Redlich JA and Beach AJA); [2009] VSCA 209 (‘Macedon Ranges’).
As this Court recognised in Macedon Ranges, indemnity costs may be awarded where an action has been commenced in circumstances where the applicant, properly advised, should have known they had no chance of success, and when a litigant presses on where on proper consideration their case should have been seen to be hopeless.[4]
[4]Macedon Ranges (2009) 170 LGERA 41, 49 [15] (Redlich JA and Beach AJA); [2009] VSCA 209.
There is at least one case that suggests that the fact that an application for leave to appeal has been found to be ‘totally without merit’ pursuant to s 14D(3) of the Supreme Court Act is sufficient to warrant an order that the applicant pay the respondent’s costs on the indemnity basis.[5]
[5]Riaz v City of Greater Dandenong [2023] VSCA 190, [42]–[43] (McLeish and Osborn JJA).
However, there are also authorities that suggest that such a finding does not necessarily entitle the respondent to its costs on the indemnity basis, particularly if the applicant is unrepresented. Thus, in Cai v County Court of Victoria this Court found that the applicant’s application was totally without merit, but nonetheless declined to make an order for costs on the indemnity basis.[6] The Court observed as follows:
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. 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.[7]
[6][2017] VSCA 278 (‘Cai’). See also Chopra v Department of Education and Training [No 2] [2021] VSCA 112, where McLeish JA found the applicant’s application to be totally without merit, but did not order costs to be paid on the indemnity basis.
[7]Cai [2017] VSCA 278, [9] (Priest and Beach JJA) (citations omitted).
To similar effect, in Macedon Ranges this Court observed that:
where the litigant did not recognise that its case was without merit a court may be disinclined to make a special costs order. The Court must measure the litigant’s conduct against the facts then known or which ought to have been known, the inquiries that the litigant ought reasonably to have made and the legal advice which the litigant ought reasonably to have obtained. This exercise may be subject to some qualification in respect of a self represented litigant.[8]
[8]Macedon Ranges (2009) 170 LGERA 41, 49 [15] (Redlich JA and Beach AJA); [2009] VSCA 209 (citations omitted). I note that in its written submissions RMIT quoted this passage but omitted the final sentence.
In the present case Ms Kaur was, earlier in her proceedings (at the Victorian Civil and Administrative Tribunal), represented by legal practitioners. However, she was not represented before the trial judge or before this Court. I do not think she appreciated that her case in this Court was hopeless. RMIT submitted that the trial judgment was ‘in clear and simple terms that are readily capable of being understood’. I accept that the judge’s ultimate conclusion was clear and capable of being understood. However the issues raised in the matter concerning whether the deed of settlement between Ms Kaur and RMIT should be set aside were complex, and would not be easily understood by a lay person. Ms Kaur, for whom English is not her first language, plainly considered that the judge had not fully dealt with her claims and thought that he had erred in declining to receive further evidence. Misguided though her views were, I do not consider that this case warrants the making of an order for costs to be paid on the indemnity basis.
In light of the above, I will order that Ms Kaur is to pay RMIT’s costs of the application for leave to appeal on the standard basis.
---
0
6
0