Kaur v RMIT [No 2] - [2024] VSCA 299

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0064

DILPREET KAUR	Applicant
v
ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY [NO 2]	Respondent

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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)

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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.

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur v RMIT [No 2]

Details

AGLC: Kaur v RMIT [No 2] [2024] VSCA 299
Case: [2024] VSCA 299
Decision Date: 6 December 2024

CaseChat Overview and Summary

Kaur appealed against a decision of the Supreme Court of Victoria, which dismissed an application for leave to appeal and held that it was totally without merit. Kaur, who was self-represented, sought to argue that the court should have awarded costs on an indemnity basis. The respondent, RMIT, argued that the court should award costs on a standard basis. The primary issue was whether the respondent was entitled to an award of costs on an indemnity basis and whether the applicant knew or should have known that the case was hopeless.

The court considered the relevant provisions of the Supreme Court Act 1986, including section 14D(3), which provides that where a court dismisses an application for leave to appeal and determines it to be totally without merit, it may award costs on a standard basis unless the applicant knew or should have known that the case was hopeless. The court noted that Kaur did not appear to understand that the case was hopeless and therefore the court was not satisfied that Kaur knew or should have known that the case was hopeless. The court also considered the relevant authorities, including Macedon Ranges Shire Council v Thompson, Riaz v City of Greater Dandenong and Cai v County Court of Victoria, which provide guidance on the circumstances in which costs on an indemnity basis may be awarded.

In light of the above, the court held that the respondent was entitled to an award of costs on a standard basis. The court found that Kaur did not understand that the case was hopeless and therefore the court was not satisfied that Kaur knew or should have known that the case was hopeless. The court also noted that Kaur was a self-represented litigant and therefore the court should be slow to award costs on an indemnity basis. The court further noted that the relevant authorities did not provide a clear test for determining whether costs on an indemnity basis should be awarded and therefore the court should exercise its discretion in light of the circumstances of the case.

The court therefore ordered that the respondent be entitled to an award of costs on a standard basis. The court noted that the amount of costs should be determined in accordance with the relevant provisions of the Supreme Court Act 1986 and the Uniform Civil Procedure Rules 2005. The court also noted that the respondent should bear its own costs of the appeal.

Orders