Madafferi v The Chief Commissioner of Police (No 2)
[2017] VSC 769
•18 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 06329
| ANTONIO MADAFFERI | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 18 December 2017 |
CASE MAY BE CITED AS: | Madafferi v The Chief Commissioner of Police (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 769 |
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COSTS – Originating Motion sought orders quashing exclusion orders made under Racing Act 1958 and Casino Control Act 1991 – Defendant revoked the exclusion orders and then immediately made new exclusion orders – application to file amended originating motion seeking relief in respect of new exclusion orders dismissed – Plaintiff entitled to costs in respect of proceedings from date of filing originating motion until revocation of orders – Defendant entitled to costs from date of new orders until date of hearing of Plaintiff’s application to file amended originating motion.
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HIS HONOUR:
On 31 October 2017 the Court dismissed an application by the Plaintiff to file an amended originating motion outside of the 60 day period prescribed by order 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015. The amended originating motion sought relief in respect of exclusion orders made against the Plaintiff under s 33(1) of the Racing Act 1958 and s 74(1) of the Casino Control Act 1991. Those orders were made on 10 June 2016. The amended originating motion was filed on 19 April 2017 and the application for an extension of time was heard on 30 August 2017.
The primary question for determination, which was the subject of a hearing on 30 August 2017, was whether the Plaintiff had established special circumstances justifying the grant of an extension of time. The court concluded that the Plaintiff did not establish special circumstances and that, as such, the application for an extension of time should be dismissed. However, the Court also concluded that there were special circumstances in existence in respect of the originating motion which was filed on 15 December 2015. That originating motion sought relief in respect of exclusion orders which were made in November 2014 (‘the November 2014 exclusion orders’), which were subsequently revoked on 9 May 2016. The period for challenging the November 2014 exclusion orders expired on 23 March 2015. The originating motion filed on 15 December 2015 was approximately nine months outside of the 60 day period prescribed by order 56.02(1).
Although technically the originating motion of 15 December 2015 is still on foot, there is no utility in the relief sought therein. The November 2014 exclusion orders were revoked in May 2016. In a practical sense, the Court’s rejection of the application to file an amended originating motion has brought the proceedings to an end. In these circumstances, the following questions arise as to the costs of the proceedings:
(i) Who is liable for the costs of the proceeding between 15 December 2015 and 9 May 2016 when the November 2014 exclusion orders were revoked?; and
(ii) Who is liable for the cost of the proceeding between 10 May 2016 and 30 August 2017?
As to the first question, the Plaintiff submits that he is entitled to his costs. The Defendant submits there should be no order as to costs.
On 19 January 2016 the VGSO advised the Plaintiff’s solicitors that it had instructions to accept service of the originating motion filed on 15 December 2015. On 29 January 2016 the VGSO advised the Plaintiff’s solicitors that the Defendant had decided to revisit the November 2014 exclusion orders. On 30 March 2016 a meeting took place between the Plaintiff’s solicitors and the VGSO which discussed, inter alia, whether the November 2014 exclusion orders would be revoked.[1] The November 2014 exclusion orders were revoked on 9 May 2016.[2]
[1]Affidavit of Paolo Tatti sworn 22 August 2017, Exhibit PMT–11.
[2]Ibid, Exhibit PMT–12.
There is no evidence before the Court which discloses any explanation ever having been provided to the Plaintiff for the Defendant’s decision to revoke the November 2014 exclusion orders. However, the practical effect of the revocation equated with the relief sought in the originating motion, namely, the quashing of the orders. It is unnecessary for the Court to express any view as to whether, absent the revocation, the Plaintiff would have succeeded in obtaining orders quashing the November 2014 exclusion orders. The inference is compelling that, but for the proceedings commenced by way of originating motion in December 2015, the Defendant would not have revoked the orders. In circumstances where the practical effect of the revocation has been to confer upon the Plaintiff the relief sought in the originating motion, the Plaintiff is entitled to an order that the Defendant pay his costs in respect of the period 15 December 2015 and 9 May 2016.
As to the second question, the Defendant has successfully argued that the plaintiff should not be granted an extension of time. Notwithstanding this finding, the plaintiff submits that there should be no order as to costs with respect of the proceedings during the period post 10 May 2016 until 30 August 2017. The Plaintiff submits that:
(iii) It is unclear how the Court would have determined the Plaintiff’s claim in the amended originating motion if the application for an extension of time had been granted;
(iv)The Court concluded the Plaintiff had an arguable case;
(v) Neither of the parties conduct post the revocation of the November 2014 exclusion orders could be said to be unreasonable.
None of the contentions set out above provides a sound basis for depriving the Defendant of his costs in respect of the period 10 May 2016 to 30 August 2017.
The application for an extension of time was heavily contested. Costs should follow the event. The Defendant, having successfully opposed the application for an extension of time, is entitled to an order that the Plaintiff pay his costs in respect of the period 10 May 2016 until 30 August 2017.
As both parties have enjoyed a measure of success on the question of costs, I will not make any order in respect of the written submissions which have been filed on the question of costs.
The orders of the Court shall be as follows:
1.The application for an extension of time to file an amended originating motion is dismissed.
2.The proceeding commenced by origination motion filed 15 December 2015 is dismissed.
3.The Defendant pay the Plaintiff’s costs of the proceeding for the period 15 December 2015 to 9 May 2016.
4.The Plaintiff pay the Defendant’s costs of the proceeding for the period 10 May 2016 to 30 August 2017.
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