Loielo v Giles (No 2)
[2020] VSC 864
•22 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03608
| MICHELLE LOIELO | Plaintiff |
| v | |
| ASSOCIATE PROFESSOR MICHELLE GILES (in her capacity as Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the Public Health and Wellbeing Act 2008 (Vic)) | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 22 December 2020 |
CASE MAY BE CITED AS: | Loielo v Giles (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 864 |
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COSTS – Judicial review – COVID-19 Pandemic – Curfew Direction – Challenge unsuccessful – Whether costs should follow the event – Success of parties on issues – Time spent on issues – Significance of issues – Both parties bear her own costs - Supreme Court (General Civil Procedure) Rules 2015 r 63.20.
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APPEARANCES: | Counsel | Solicitors | |
| For the Plaintiff | Mr M Clarke QC, Ms V Plain and Dr J Harkess | NOH Legal | |
| For the Defendant | Ms K Walker QC Solicitor-General for the State of Victoria, Mr J Pizer QC and Mr E Nekvapil | Victorian Government Solicitor’s Office | |
HIS HONOUR:
This case concerned the Curfew Direction[1] in force, between the hours of 8.00pm and later 9.00pm and 5.00am in greater Melbourne, from 5 August and 27 September 2020, which was the eve of the first day of the trial. The plaintiff challenged its legality in this judicial review proceeding. She commenced the proceeding on 14 September 2020 and the trial was completed on 2 October 2020. I gave judgment dismissing the plaintiff’s proceeding on 2 November 2020.[2]
[1]I will use the term ‘Curfew Direction’ although the Curfew restriction challenged was contained in the Stay at Home Directions (Restricted Areas) (No 15).
[2]Loielo v Giles [2020] VSC 722 (‘Principal Judgment’).
The defendant seeks her costs of the proceeding on the usual principle that costs follow the event. The plaintiff says there should be no order as to costs because the case raised important human rights issues and raised significant issues of public interest affecting every person in Victoria, not merely the parties to the litigation. Alternatively, the plaintiff sought orders for costs up to, and including, the first day of trial when the Curfew was revoked and seeks costs on an indemnity basis of two interlocutory applications concerning the production of a Department’s legal advice and of the defendant’s summons for the determination of questions as preliminary issues.
The defendant, Associate Professor Giles, was acting in an official capacity as an authorised officer under the Public Health and Wellbeing Act 2008, filling in for another officer going on leave. She was represented by five counsel, including the Solicitor-General instructed by the Victorian Government Solicitor’s Office. The plaintiff was represented by senior counsel, two junior counsel and solicitor.
In the exercise of the discretion as to costs, I have decided that the usual principle that costs follow the event would not produce a just outcome in this proceeding. Taking into account the success of the parties on the issues argued, the time taken on those issues and the significance of them, the appropriate exercise of discretion as to costs is that both parties bear their own costs, including costs of any interlocutory or other application in the proceeding.
The principal issues argued in the proceeding
The plaintiff’s amended originating motion contained four grounds: that the defendant acted under the direction and at the behest of the Premier of Victoria, Mr Andrews, in making the Curfew Direction; that the defendant acted unreasonably in making the Curfew Direction; that it was invalid on the grounds of irrationality and illogicality; and that it breached her human rights contained in the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). The first ground was based, in part, on the fact that Mr Andrews announced the continuation and modification of the Curfew on Sunday 13 September 2020, some hours before Associate Professor Giles, who was required to make an independent decision under the Public Health and Wellbeing Act about the continuation of the Curfew. The plaintiff did not succeed on those grounds. During the proceeding additional issues were argued, being whether the plaintiff had standing to bring the proceeding and a ‘lack of utility’ argument, whether any remedy would be granted to her even if she otherwise succeeded once the Curfew was revoked. I accepted the plaintiff’s submissions on these issues. In addition, the plaintiff succeeded on interlocutory applications about discovery of Departmental legal advice on whether the Curfew breached the Charter and in opposing the defendant’s summons for the separate determination of questions as preliminary issues.
The plaintiff’s submissions
The plaintiff’s submissions on costs were as follows. The case was novel and raised issues of human rights arising from the COVID-19 Pandemic that had never been considered by a superior court in Victoria previously. The outcome of the case would have implications for millions of residents in the Melbourne metropolitan region. The evidence of the impact of the Curfew on the plaintiff was not challenged by the defendant. Sections 199 and 200 of the Public Health and Wellbeing Act, under which the Curfew Direction was made, had never before been used to impose restrictions curtailing human rights on the population at large. The Court found the plaintiff had standing and would have been entitled to declaratory relief if her claim had succeeded. The Court found that human rights under the Charter had been engaged by the Curfew Direction and the defendant had to justify the restrictions on human rights.
The plaintiff also submitted that public doubt existed about how the Curfew Direction had been made with the Chief Commissioner of Police and the Chief Health Officer denying that it was at their request.[3] No health or other reasons had been provided for it. The plaintiff’s judicial review proceeding was the only way in which Victorians could learn of the legality of the effect of the Curfew Direction on their rights. The plaintiff had conducted the case expeditiously and it would be unjust for her to bear the burden of its costs of the litigation. In determining costs issues, Courts have taken into account the importance of the issue raised, including whether it concerned important human rights issues.[4]
[3]Ibid [9].
[4]Oshlack v Richmond River Council (1998) 193 CLR 72; Shelton v Repatriation Commission (1999) 85 FCR 587.
Secondly, and alternatively, the plaintiff sought costs up to and including the first day of the trial because the Curfew was then revoked. The plaintiff contended that the discontinuance of her claim for certiorari following the lifting of the Curfew shortly before the commencement of the trial in effect followed the ‘surrender’ by the defendant and the plaintiff obtaining the relief she sought by commencing the proceeding. She referred to decisions on the appropriate order for costs in such circumstances.[5] She also submitted that the defendant ought to pay her costs on an indemnity basis of two discrete interlocutory applications, being for the production of the Department of Health and Human Services unredacted legal advice on whether the Curfew Direction complied with the Charter and of the defendant’s summons seeking orders for the determination of preliminary questions.
[5]Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469.
The defendant’s submissions on costs
The defendant made the following submissions in addition to her primary reliance on the principle that costs follow the event. The defendant submitted that, as the plaintiff had been found to have standing because of possible financial harm to her restaurant, this was not a public interest proceeding. Secondly, to the extent that it was, there were competing public interests at play, being the threat to public health posed by COVID-19 on the one hand and the economic effects of the Curfew on the other. The defendant had properly balanced those considerations and it was not for the Court to do so for the purpose of making a special costs order. Thirdly, the plaintiff did not adduce any evidence of widespread public support for her cause. Fourthly, the case did not turn on any significant issues of statutory interpretation or other unsettled legal questions. Fifthly, the plaintiff’s reliance on the Charter, was reliance on an ordinary Act of the Victorian Parliament, which did not of itself warrant any special costs order. Sixthly, although the Court held the plaintiff had standing to continue the challenge after the Curfew was revoked, the level of any public interest in the legality of the Curfew was significantly reduced after that occurred. The plaintiff chose to press on for her own reasons, but no pressing public interest subsisted justifying a special costs order. The Court of Appeal decision in Cumming v Minister for Planning (No 2)[6] established that calling litigation ‘public interest litigation’ was not a useful designation and that it is the role of the Court to seek to balance interests.
[6][2020] VSCA 231.
The defendant also disputed the alternative costs orders sought by the plaintiff and she should not be ordered to pay her costs up to trial. The revocation of the Curfew Direction was irrelevant to the question of costs, because the reasons for the Court’s judgment would not have changed had the Curfew remained in force. In any event, the Chief Health Officer and not the defendant revoked the Curfew Direction and therefore the defendant had not ‘surrendered’ and conceded the relief sought by the plaintiff.
In respect of interlocutory issues for which the plaintiff claimed indemnity costs, the defendant submitted that the general rule contained in r 63.20 of the Supreme Court (General Civil Procedure) Rules 2015 represented the appropriate position, namely, that the parties’ costs of the interlocutory application be their costs in the proceeding, unless the Court otherwise ordered. The defendant should not have to pay costs on the legal privilege issue. So far as the argument for the separate questions was concerned, most of Wednesday 30 September 2020 was occupied by submissions on the substance of the three questions identified which had to be addressed in submissions in any event. The defendant’s argument that those questions should be heard before trial was comparatively brief.
Chronology of the proceeding
On Sunday 13 September 2020, Associate Professor Giles signed the Stay at Home Directions (Restricted Areas) (No 15) containing the modified Curfew.
On 14 September, the proceeding was commenced. The trial was completed and judgment reserved on 2 October and judgment delivered on 2 November.
On 16 September at 2.15pm, the case first came before the Court for an initial directions hearing.
On 22 September, a further directions hearing was held where a number of objections to the plaintiff’s affidavits were determined and argument put about legal privilege. I delivered a ruling on 24 September, in which I accepted the plaintiff’s arguments and required the production of the Department’s legal advice on Charter issues, which the defendant had taken into account in reaching her decision.[7]
[7]Loielo v Giles [2020] VSC 619.
On Friday 25 September, a directions hearing occurred, lasting most of the day, dealing with objections to the plaintiff’s affidavits and the production of various documents. Both parties had some success on the matters argued that day. After much discussion, including about public interest immunity claims, a procedure was agreed to provide the plaintiff, as discovery, with Department statistics containing COVID-19 infection rates while the Curfew Direction was in force.
On Sunday afternoon, 27 September, Mr D Andrews, the Premier, announced that the Curfew would be lifted from 11:59pm that night.
On Monday 28 September, the trial commenced but, because the Curfew had been revoked from 11:59pm the previous night, it was stood down until 12.15pm for the parties to consider their positions. The plaintiff wished to proceed while the defendant indicated that it wished to issue a summons seeking the determination of preliminary questions and would need time to properly prepare it. The case continued in the afternoon with parties opening their cases.
The Court allowed the parties Tuesday, 29 September to prepare for the hearing of the defendant’s foreshadowed application for the determination of preliminary questions. On that day, the defendant issued a summons returnable the following day, 30 September, seeking orders under r 47.04 for questions to be tried as to the plaintiff’s standing; secondly, the question of utility of the relief sought, being whether any declaration would be made in any event should the plaintiff succeed on her legal arguments as the Curfew had been revoked and thirdly, whether the plaintiff had any non-Charter claim that entitled her under s 39 of the Charter to claim any Charter remedies.
On Wednesday, 30 September, I heard the defendant’s summons with submissions that occupied the whole day.
On Thursday, 1 October, I refused the defendant’s application for the determination of the preliminary questions based on my consideration of case management principles. That ruling was later provided in written form. [8] The cross-examination of Associate Professor Giles then occurred and occupied most of the remainder of the day.
[8]Loielo v Giles (Ruling No 2) [2020] VSC 723.
On Friday, 2 October, the parties made final submissions, including in the case of the plaintiff expanding on submissions that had been put on the Wednesday. I reserved judgment and delivered judgment on 2 November.
Principles as to costs
The Court has a discretion as to costs.[9] Costs are awarded not to punish the unsuccessful party, but to compensate the successful party.[10] Section 65C of the Civil Procedure Act 2010 provides:
[9]Supreme Court Act 1986 s 24.
[10]Northern Territory v Sangare (2019) 265 CLR 164.
65C Other costs orders
(1) In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.
(2) Without limiting subsection (1), the order may—
(a) make different awards of costs in relation to different parts of a proceeding or up to or from a specified stage of the proceeding;
(b) order that parties bear costs as specified proportions of costs;
…
In Chen v Chan,[11] the Court of Appeal stated:
(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5) Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation, ’rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
…[12]
[11][2009] VSCA 233.
[12]Ibid [10] (citations omitted).
Analysis
In my opinion, the appropriate and just order is that both parties bear their own costs of the proceeding, including the costs of interlocutory applications. I have reached that conclusion after first considering the usual principle that costs follow the event. I have however concluded that this is a proceeding in which I should take into account other relevant matters in exercising the discretion as to costs. I have taken into account the parties’ success on the issues argued, my assessment of the time spent in dealing with issues in the proceeding, a task made easier by the proceeding taking less than three weeks from commencement to the reservation of judgment. I have also taken into account the significance of the issues argued. I consider that exercising the discretion as to costs, the combination of those matters makes appropriate a departure from the usual principle that costs follow the event. I do not consider that the application of the usual principle would justly reflect the substance of the proceeding or the reasons for its outcome. Nor do I consider that the plaintiff’s application for indemnity costs of the interlocutory matters on which she succeeded, or an order that she receive her costs up until the end of the first day of the proceeding, would be an appropriate outcome. My reasons for my decision on costs in more detail are as follows.
First, there is the consideration of the parties’ success on issues and applications that took time in the proceeding. The defendant succeeded on the four grounds contained in the plaintiff’s amended originating motion: that the defendant acted at Mr Andrew’s behest in making the Curfew Direction on 13 September, unreasonableness and irrationality grounds, which occupied little time, and Charter grounds. Both the acting at Mr Andrews’ behest grounds and the Charter grounds had a substantial basis even though ultimately they did not succeed.[13] The plaintiff was successful on the issues of her standing, the utility of the proceeding once the Curfew was revoked and her right to seek Charter remedies. The defendant was unsuccessful in seeking to have those issues determined as preliminary issues. The plaintiff succeeded on the interlocutory issue of obtaining a copy of the Department’s legal advice about whether the Curfew Direction complied with the Charter. That argument required part of a day and required a separate written ruling.[14] The defendant succeeded at directions hearings on a number of objections to the plaintiff’s affidavits.
[13]Principal Judgment (n 2) [147]-[179], [203]-[261].
[14]Loielo v Giles [2020] VSC 619.
Secondly, I take into account the approximate time spent on issues in the litigation. As mentioned, because the proceeding was heard in a short time period, less than three weeks, it is possible to make some assessment of this consideration. My broad assessment is that the issues or applications on which the parties succeeded took approximately equal time in the litigation. The first directions hearing was a preliminary mention soon after the proceeding was commenced. At the second and third directions hearing, the defendant succeeded in having substantial parts of the plaintiff’s solicitor’s affidavits excluded. I estimate that the defendant’s successful objections to affidavits by the plaintiff’s solicitor occupied slightly more of the time on those two days than the plaintiff’s success on the legal privilege argument and the arguments, ultimately leading to a compromise, on the production of daily intelligence briefings. On the first day of the trial, Monday, 28 September, the hearing was adjourned for two hours so the parties could consider the consequences for the proceeding of the revocation of the Curfew and thereafter the parties opened their cases. Tuesday, 29 September was a non-sitting day for the parties to prepare for the hearing of the defendant’s summons. The issues argued on the summons were issues on which the plaintiff’s submissions were ultimately accepted by the Court. The defendant submits that submissions made that day would otherwise have been argued as part of final submissions. While that is true to some extent, the plaintiff in final submissions developed her argument on the three preliminary points. I consider it likely that if there had not been separate argument on the Wednesday about these preliminary issues, that with the aid of written submissions, they probably all would have been dealt with in the one day of final submissions. Nearly all of Thursday, 1 October was occupied by the cross-examination of Associate Professor Giles and Friday, 2 October with final submissions.
No order was sought for costs of the directions days, the summons heard on 30 September, the argument about legal privilege on 22 September or of any other interlocutory application during the proceeding. If the question of costs had then been raised, I would have reserved it for determination after delivery of judgment to avoid disruption of the trial program. I do not consider that the defendant should receive costs of interlocutory applications or orders by operation of r 63.20, as I understood her to submit. The order for costs that I propose is that both parties bear their own costs, including will include costs of interlocutory or other applications and this will replace the operation of r 63.20.
My assessment of the time taken in the proceeding, including in the case of the Tuesday, 29 September in preparation for the hearing of the defendant’s summons, is that at least half of it was taken on matters on issues on which the plaintiff was successful.
Finally, there is the consideration of the importance of the issues raised in the litigation. I have taken into account the Court of Appeal’s recent statement in Cumming v The Minister for Planning (No 2)[15] that:
Of course, the fact that the litigation is ‘public interest litigation’ dictates no particular result. Nor is it a useful designation. Public interest considerations are, however, able to be brought into account in exercising the costs discretion. In Oshlack, it was held that it was open, under the statutory provision for costs there under consideration, to take account of the appellant’s motivation to ensure obedience to environmental law and to preserve koala habitat, having nothing else to gain from the litigation. It was also relevant that a significant number of members of the public shared the appellant’s stance as to the proposed development and that the challenge was arguable and had resolved significant issues regarding endangered fauna laws.[16]
[15][2020] VSCA 231.
[16]Ibid [9] (citations omitted).
The Curfew was a major restriction on liberty as a response to the Pandemic. The right of citizens to leave their homes as they wish is of the essence of a free society. The critical public interest in protecting the community from COVID-19 does not detract from the importance of that human right. There were competing public interests. But as Garde J said of a decision-maker’s duty to consider human rights:
[I]n an emergency or extreme circumstance, or where critical decisions have to be made with great haste, there are grave risks that human rights may be overlooked or broken, if no life or limb endangered. The existence of an emergency, extreme circumstances or haste confirms, not obviates, the need for proper consideration to be given to relevant human rights. In the absence of statutory provision to the contrary, s 38(1) of the Charter will operate to require proper consideration to be given by public authorities to relevant human rights in emergencies or extreme circumstances or where great expedition is required in decision-making.[17]
[17]Certain Children v Minister for Families and Children (2016) 51 VR 473, 508 [188] (citations omitted).
I do not accept that the defendant’s submissions that the Charter is an ordinary Act of Parliament, as it recognises the fundamental human rights of people living in Victoria. It is intended to effect the interpretation of other legislation and the conduct of public authorities that may restrict those rights even when actions are taken in times of emergency.
Also of particular importance was the question of the extent of the power conferred by ss 199 and 200 of the Public Health and Wellbeing Act and whether it authorised a widely based Curfew. The plaintiff’s proceeding led to the determination of that issue about which there was no existing authority. The proceeding also required resolution of whether the Curfew was incompatible with the Charter, an issue that the Department’s own legal advice suggested carried some risk. There was also the issue of whether Associate Professor Giles had acted at the behest of Mr Andrews when he had announced the continuation and modification of the Curfew hours before she, as the authorised decision-maker had made her own decision.
I do not accept that the plaintiff’s litigation was purely self-interested. While the effect of the Curfew on her restaurant provided the basis for her standing, she also gave evidence of the effect of the Curfew on her mental outlook, on her children and her way of life. She would have shared those challenges with many others; indeed Associate Professor Giles acknowledged that she shared some of them. Equally many thousands of Victorian businesses, that usually trade during the Curfew hours, must have been affected as the plaintiff’s was. While the plaintiff did not produce proof that others supported her stance in challenging to the Curfew, it is likely that many people were concerned or interested as to the legal basis for the Curfew, while at the same time, supporting measures to protect public health. To most people, personal liberty is a cherished right.
I do not accept that public interest considerations presented by the plaintiff’s case ceased once the Curfew was revoked. The plaintiff was entitled to continue to seek declaration on the legality of the Curfew. That was the course that the New Zealand High Court permitted in Borrowdale v Director-General of Health[18] to which I referred in my judgment. Many judgments on claimed breaches of human rights concern breaches that have ceased. It would be unlikely that a plaintiff, upon establishing a past breach of human rights, would be denied a remedy because the breach was not continuing.
[18][2020] NZHC 2090 (Thomas, Venning and Ellis JJ).
Conclusion
Taking into account the parties’ success on the issues argued, my assessment of the time spent on those issues in the proceeding and the significance of the issues argued, I consider, in the exercise of the costs discretion, that it is appropriate in this proceeding to order that both parties bear their own costs, including costs of interlocutory or other applications.
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