Michos v Eastbrooke Medical Centre Pty Ltd (Ruling No 2)
[2019] VSC 13
•30 January 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00633
| CON MICHOS | Plaintiff |
| v | |
| EASTBROOKE MEDICAL CENTRE PTY LTD | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 30 January 2019 |
CASE MAY BE CITED AS: | Michos v Eastbrooke Medical Centre Pty Ltd (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 13 |
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PROTECTIVE COSTS ORDER – Appeal from a decision made by the Victorian Civil and Administrative Tribunal – Bare v Small [2013] VSCA 204 – Section 65C(2A) of the Civil Procedure Act 2010 – Health Records Act 2011
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HER HONOUR:
Mr Michos seeks a protective costs order (‘PCO’) capping any potential liability by him for costs to $5,000. Eastbrooke Medical Clinic (‘Eastbrooke’) opposes his application.
This proceeding concerns an appeal from a decision made by the Victorian Civil and Administrative Tribunal (‘the Tribunal’). In a ruling on 6 September 2018, I gave Mr Michos leave to appeal a decision of the Tribunal on a limited basis (‘the first ruling’).[1] The first ruling sets out the background to this proceeding.
[1][2018] VSC 517.
Summary
For the reasons below, I will disallow the protective costs order sought by Mr Michos.
Evidence
The evidence filed in relation to this application is as follows:
(a) affidavit of Peter John Elliot Arthur, Eastbrooke’s solicitor, sworn on 10 October 2018 (‘the Arthur affidavit’); and
(b) affidavits of Mr Michos sworn on 30 October 2018 (‘the first Michos affidavit’); and 18 December 2018 (‘the second Michos affidavit’).
Eastbrooke objects to paras 5, 8, 11-19 of the first Michos affidavit on the basis that they do not go to factual matters but rather are additional submissions. Save for para 18, in which Mr Michos deposes as to his financial situation, I agree that those paragraphs are in the nature of submissions and s 76 of the Evidence Act is applicable. They do not prove the existence of facts about which Mr Michos expresses an opinion. Accordingly, I allow the objection.
Mr Michos’ submissions
The key submissions made by Mr Michos follow.[2]
[2]Mr Michos made written submissions filed on 19 September 2018 and 18 December 2018.
Firstly, Mr Michos states that he is impecunious. He deposes that he is medically unfit with extremely minimal prospects of returning to the workforce, that his sole income derives from a Disability Support Pension and that he only has ‘assets or access to assets of nominal value’.[3] Mr Michos deposes to being on multiple medications and sometimes needing to borrow money.
[3]Mr Michos deposes that his household and personal effects are to the value of $3,5000, his motor vehicle is to the value of $1,500 and exhibits a Centrelink statement dated 22 November 2018 to that effect.
Secondly, Mr Michos says that without a protective costs order he may have to discontinue proceedings as he has limited capacity to pay any significant costs ordered against him. Such orders may expose him to risk of bankruptcy and destitution. He submits that it would be fair and just to have access to the Court without fear of substantial costs orders made against him and that his circumstances ought not to impede his access to justice.
Thirdly, Mr Michos submits that the principle of equality of arms should be taken into consideration.
Fourthly, Mr Michos submits that the first ruling identified questions of law that are of public importance. Accordingly, he submits that the principles identified in Bare v Small[4] outlined below should apply to his application.
[4][2013] VSCA 204.
Eastbrooke’s submissions
The key submissions made by Eastbrooke follow.[5]
[5]Eastbrooke made written submissions filed on 10 October 2018 and by way of email to Chambers on 2 November 2018. Orders made on 20 November 2018 gave Eastbrooke leave to rely upon the email.
Firstly, Mr Michos is not impecunious as he is the sole director and shareholder of a company, Webbingdon Pty Ltd, that owns real property of significant value in Ascot Vale and which has demonstrated sufficient financial solvency to allow for the approval and extension of credit. Moreover, even if Mr Michos does not derive income from the property, he lives there and provided the property’s address as the address for service in this proceeding. Eastbrooke queries Mr Michos’ claim that the Ascot Vale Property is held on trust by Webbingdon Pty Ltd, noting the strong inference that it may be a family trust. Eastbrooke also queries whether Mr Michos’ reference to a ‘dormant mortgage’ means that the mortgage has been paid off, but not discharged. In addition, Eastbrooke submits that impecuniosity is not determinative.
Secondly, there is no basis for departing from the usual rule as to costs simply because a case has implications beyond the immediate parties. In the present case, there is no public interest that differs from the public interest that exists in many common law cases.
Thirdly, there is no basis for concluding that Mr Michos would be forced to abandon the appeal if a protective costs order was not made. A protective costs order would also remove any incentive to resolve the matter prior to the determination of the appeal.
Fourthly, the issues in the appeal concern matters that are unlikely to be of wide public significance or application, given the particular circumstances in which the appeal arose.
Fifthly, if there was any breach of the Health Records Act 2011 (‘HRA’) by Eastbrooke, it was de minimis. Mr Michos’ complaint arises because Eastbrooke wanted him to consult a medical practitioner before it provided a copy of an unsolicited report it received without prior arrangement. By contrast, Bare v Small concerned a teenage boy that had been seriously assaulted and racially abused by Victoria Police.
Sixthly, a protective costs order would be unfair to Eastbrooke who had to address all the grounds raised by Mr Michos in his application for leave to appeal, most of which were rejected by the Court. This would also be contrary to the overarching purpose of the Civil Procedure Act 2010.
Mr Michos’ reply submissions
In reply to Eastbrooke, Mr Michos says that Webbingdon Pty Ltd is a separate entity and not a party to the proceeding. Mr Michos deposes that he does not derive any benefit from Webbingdon Pty Ltd and that his role is ‘solely an administrative one, to manage the trust for the benefit of the beneficiaries’ for which he receives no benefit. Mr Michos deposes that he is responsible for maintenance and costs associated with the Ascot Vale property and that he is not a beneficiary. He exhibits a redacted copy of a ‘trust schedule’.
Applicable Principles
Section 7 of the Civil Procedure Act 2010 states:
Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
(2) Without limiting how the overarching purpose is achieved, it may be achieved by –
(a) the determination of the proceeding by the court;
(b) agreement between the parties;
(c) any appropriate dispute resolution process –
(i) agreed to by the parties; or
(ii) ordered by the court.
Section 9 of the Civil Procedure Act 2010 states:
Court’s powers to further the overarching purpose
(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects –
(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for –
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to –
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
(2)For the purposes of subsection (1), the court may have regard to the following matters –
(a)the extent to which the parties have complied with any mandatory or voluntary pre‑litigation processes;
(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h)the extent to which the parties have had the benefit of legal advice and representation.
(3) This section does not –
(a) limit any other power of a court to make orders or give directions; or
(b) preclude the court from considering any other matters when making any order or giving any direction.
Section 65C of the Civil Procedure Act 2010 states:
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;
(c) award a party costs in a specified sum or amount;
(d) fix or cap recoverable costs in advance.
(2A)In making an order under subsection (1) to fix or cap recoverable costs in advance, the court may consider the following matters –
(a) the timing of the application;
(b)the complexity of the factual or legal issues raised in the proceeding;
(c)whether the party seeking the order claims damages or other form of financial compensation;
(d)whether the claim of the party seeking the order has a proper basis and is not frivolous or vexatious;
(e)the undesirability of the party seeking the order abandoning the proceeding if the order is not made;
(f) whether there is a public interest element to the proceeding;
(g) the costs likely to be incurred by the parties;
(h)whether the other party has been uncooperative or delayed the proceeding;
(i) the ability of the party seeking the order to pay costs;
(j)whether a significant number of members of the public may be affected by the outcome of the proceeding;
(k)whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions.
(3) An order under subsection (1) may be made –
(a) at any time in a proceeding;
(b)in relation to any aspect of a proceeding, including, but not limited to, any interlocutory proceeding.
Section 65C(2A) of the Civil Procedure Act 2010 commenced on 1 July 2018. This application was made prior to that date and it is generally assumed that statutes do not have retrospective operation. However, this ‘does not apply to statutes that are concerned with matters of procedure only’.[6] Cost orders are procedural in nature,[7] and therefore, s 65C(2A) applies to this application.
[6]Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworth, 8th ed, 2014) 414, 416; Maxwell v Murphy (1957) 96 CLR 261.
[7]Galvin v Forests Commission of Victoria [1939] VLR 284; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413.
The Explanatory Memorandum states that the matters listed in s 65C(2A) ‘are based on the criteria considered by the Court of Appeal in Bare v Small,[8] and are intended to guide the exercise of the Court's discretion. The matters are not exhaustive, and do not amount to a test’.[9]
[8][2013] VSCA 204.
[9]Explanatory Memorandum, Justice Legislation Amendment (Access to Justice) Bill 2018, 4.
In Bare v Small, the Court of Appeal outlined the following principles:[10]
[10][2013] VSCA 204, [23].
In Corner House the Court of Appeal of England and Wales described the general purpose of a PCO as being:[11]
[11]Corner House [2005] 1 WLR 2600, 2607 [6].
to allow a claimant of limited means access to the court to advance his case without the fear of an order for substantial costs being made against him, a fear which would inhibit him from continuing with the case at all.
The Court held that it had the power to make a PCO under legislative provisions in similar terms to that of s 24 of the Supreme Court Act and r 64.24 of the Rules of Court, in the absence of any express power. However, the rules of court relied upon in Corner House prescribed their aim as being to enable ‘the court to deal with costs justly’. This included the provision, in r 1.1(2) of the rules governing civil procedure, that:[12]
[12]Emphasis added.
Dealing with a case justly includes, so far as is practicable - (a) ensuring that the parties are on an equal footing.
The Court stated that a PCO could be made providing that the Court is satisfied that:[13]
[13]Ibid 2625-6 [74]-[75].
(1) the issues raised are of general importance;
(2) the public interest requires that those issues should be resolved;
(3) the applicant has no private interest in the case;
(4) having regard to the financial resources of the applicant and the respondent(s), and to the amount of costs that are likely to be involved, it is fair and just to make the order;
(5) if the order is not made, the applicant will probably discontinue the proceeding and will be acting reasonably in doing so.
Furthermore, the Court recognised that the merits of an application for a PCO are likely to be enhanced if those acting for the applicant are acting pro bono and it was for the court, in its discretion, to decide whether it is fair and just to make a PCO in light of the above considerations.[14]
[14]As is apparent, the PCO regime in the United Kingdom is directed at public law litigation where there is no (or virtually no) private interest in the litigation. It appears that there is a separate power to made a costs capping order (a ‘CCO’) where, as described by Beazley JA in Delta Electricity v Blue Mountains Conservations Society Inc [2010] NSWCA 263 (‘Delta Electricity’), the order ‘limits the amount of costs recoverable by either party and thus prevents the costs liability from being inflated by the incurring of disproportionate costs’ (at [87]).
Some Australian courts have granted PCO’s and, in doing so, have applied somewhat similar guiding principles to those identified in Corner House.[15]
[15]See Beazley JA’s review of the authorities in Delta Electricity [2010] NSWCA 263.
In Corcoran v Virgin Blue Airlines Pty Ltd[16] Bennett J held that the Federal Court had power to make a PCO pursuant to Order 62A rule 1 of the Federal Court Rules. Order 62A rule 1 provided that the Court may specify the maximum costs that may be recovered on a party and party basis. Order 62A rule 2 provided, inter alia, that costs were excluded from that maximum amount where a party:
(d) has otherwise caused another party to incur costs that were not necessary for the economic and efficient:
(i) progress of the proceedings to trial; or
(ii) hearing of the action.
The applicants’ complaint was that Virgin Airlines had discriminated against them, directly and indirectly, under the Disability Discrimination Act 1992 (Cth), by way of requiring them to travel on the aircraft with a carer if they were unable to carry out certain actions independently, for example, reaching out and pulling down an oxygen mask. Her Honour considered that amongst the factors to be considered in exercising the Court’s discretion to grant a PCO were the timing of the application; the complexity of the factual or legal issues raised; whether the applicant claimed damages or other form of financial compensation; whether the applicant’s claims were arguable and not frivolous or vexatious; the undesirability of forcing the applicant to abandon the proceedings; whether there was a public interest element to the case; the costs likely to be incurred by the parties; whether the party opposing the making of the order had been uncooperative and/or delayed the proceeding; and any other matters that could go towards establishing that there should be a departure from the usual rule that the costs follow the event.[17] In our view, these other matters would include at least the applicant’s ability to pay costs.[18] In addition, her Honour considered as relevant whether a significant number of members of the public may be affected and whether the basis of the challenge raises ‘significant issues’ as to the interpretation and application of statutory provisions.[19] Her Honour held, applying these principles, that in the circumstances of the case it was appropriate to make a PCO.[20]
[16][2008] FCA 864 (‘Corcoran’).
[17]Ibid [6]-[7].
[18]Her Honour made reference to this factor: see Corcoran [2008] FCA 864, [36].
[19]Corcoran [2008] FCA 864, [10]. See also [11] where her Honour considered the factors in Corner House and the factors identified by the Canadian Supreme Court in British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71, 313 N.R. 84, [40]-[41] and Little Sisters Book & Art Emporium v Canada 2007 SCC 2, J E 2007-211, [36]-[41].
[20]Ibid [57].
Mr Michos makes reference to the ‘equality of arms’ principle. However, in Khalid v Secretary, Department of Transport, Planning and Local Infrastructure (‘Khalid’) Warren CJ and Santamaria JA stated the following concerning protective costs orders:
The term ‘equality of arms’ does not appear in the CPA nor in the Rules. These costs allocation rules have been the subject of considerable analysis, review and well developed jurisprudence. The reports that led to civil procedure reform both here and in the UK, including those that led to the introduction of the CPA do not identify a principle of equality of arms as informing the CPA’s purpose, or as being necessary to the just determination of a dispute more broadly. Given the long history of these rules, we do not accept, in the absence of clear words to the contrary, that s 7 of the CPA incorporates such a principle.[21]
[21]Khalid v Secretary, Department of Transport, Planning and Local Infrastructure [2014] VSCA 115 (citations omitted) (‘Khalid’).
Analysis
Turning first to the factors in s 65C(2A) before considering whether the protective costs order should be made under s 65C(1) on the basis that it furthers the overarching purpose of the Civil Procedure Act 2010.
Timing of the application
Mr Michos made the application for a protective costs order in a timely manner, namely at the outset of this proceeding.
The complexity of the factual or legal issues raised in the proceeding
The issues in this proceeding are referred to in the first ruling. There are no factual issues. The legal issues are not complex. There are two discrete legal issues that relate to construction of legislation.
Whether the party seeking the order claims damages or other form of financial compensation
This proceeding concerns an appeal from the Tribunal. As such, it does not concern damages or compensation. At the Tribunal, Mr Michos did pursue compensation, but says he no longer does so.
Whether the claim of the party seeking the order has a proper basis and is not frivolous or vexatious
Mr Michos sought leave to appeal on multiple grounds. He was successful on two grounds. Accordingly, he has a proper basis in respect of those two grounds.
The undesirability of the party seeking the order abandoning the proceeding if the order is not made
Mr Michos’ liberty is not at issue, nor does he seek compensation.
In Khalid, the Court of Appeal denied a protective costs order to an applicant who sought a determination that he was a permanent resident of Australia for the purposes of obtaining a student concession card. In declining to make the protective costs order, the Court of Appeal took into account that the applicant was ‘already entitled to concessional travel on public transport by reason of his holding a health care card’.[22]
[22]Ibid [32(c)].
Analogously, and relevantly, here Mr Michos was able to procure a copy of the medical report elsewhere within hours of his request. Further, as discussed in the first ruling, following Mr Michos’ complaint to the Health Complaints Commissioner, Eastbrooke agreed to change its policy regarding access to health information so that patients are not always required to make an appointment with a doctor to receive a copy of their health information.
Given the above, there may be little, if any, practical benefit to Mr Michos even if he is successful on appeal. Therefore it is not desirable for Mr Michos to continue the appeal in respect of his own interests. As discussed below, whilst there is public importance in clarifying the legislation, the proceeding does not raise significant issues.
Regardless, I doubt that Mr Michos will abandon the proceeding if he does not obtain a protective costs order. Indeed, he has not said that he will do so. Rather, he may abandon it. It is evident that Mr Michos is passionate about the issues and his actions to date are consistent with ardent pursuit of the proceeding.
Whether there is a public interest element to the proceeding; Whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions.
In the first ruling at para 29, I held that it was of public importance to clarify provisions in the Health Records Act 2011 regarding collection and access to individuals’ health information to assist in the proper operation of the Health Records Act 2011. I do not consider that the issues are significant – as discussed above and in the first ruling, they are two discrete issues.
Whether a significant number of members of the public may be affected by the outcome of the proceeding
In declining to make a protective costs order in Khalid, the Court of Appeal noted that ‘the Court has no evidence before it of the number of people who are affected by the determination in the way the applicant says he is affected’.[23] In the present case, there is no evidence or submission that a significant number of members of the public will be affected by the outcome of the proceeding.
Whether the other party has been uncooperative or delayed the proceeding
[23]Ibid [32(d)].
Overall, Eastbrooke has been co-operative and has not delayed the proceeding. It sought an extension of approximately two weeks for the filing of its submissions in respect of this application. The Court was satisfied with the explanation and made orders on 4 October 2018 allowing the extension. This did not impact on the trial date. Eastbrooke also sought leave to rely upon submissions made by email to chambers, and leave was given to do that. Mr Michos was given the opportunity to file material in response by orders made on 20 November 2018, and did so. There is no basis to find that Eastbrooke has been uncooperative or delayed the proceeding.
Costs likely to be incurred by parties; Mr Michos’ ability to pay costs order
There are no costs estimates in evidence. There were no submissions as to the quantum of costs. Costs in respect of the application for leave to appeal (a one day hearing) are reserved, and the trial is listed for a one day hearing. There have been a number of appearances at interlocutory hearings. Given this, it is unsurprising that the parties proceed on the basis that the costs will be above $5,000.
Mr Michos’ ability to pay a costs order is uncertain for two reasons. Firstly, there is no estimate of costs and so the extent of his financial exposure is known. Secondly, Mr Michos’ overall access to financial assets and resources is unclear.
Mr Michos’ income is minimal as he receives a disability pension. I accept his evidence that he is on a disability support pension, noting that the evidence is correlated by a Centrelink income statement dated 22 November 2018. Mr Michos does not provide any assessment from the Australian Taxation Office as to his income. He does exhibit an individual tax return from 2017 (with the name of an accountant on it) indicating his only income is a government pension of $16,164. I do not give that any weight given it is unsigned and undated.
Mr Michos is the sole director/secretary and shareholder of a company, Webbingdon Pty Ltd, which owns property in Ascot Vale in which he resides rent-free. Although he does not expressly depose that he lives there, his evidence is consistent with that. For instance, he says he would be forced to resort to alternative accommodation if he was not able to reside there. The address provided by Mr Michos for these proceedings correlates with the address of the Ascot Vale property owned by Webbingdon Pty Ltd. Mr Michos refers to Eastbrooke’s assertion that he lives at the property rent-free and does not contradict it.
Then there is the question of a trust and Mr Michos’ role in respect of it. A ‘trust schedule’ exhibited by Mr Michos is heavily redacted. Neither the settlor, nor settled sum, nor beneficiaries are evident. No conclusions as to the identity of the beneficiaries and whether Mr Michos is a beneficiary can be drawn from the trust schedule. The trustee is listed as Webbingdon Pty Ltd and the Ascot Vale address is listed as ‘other settled property’. It appears to be signed by Mr Michos on 17 June 2013 as Webbingdon Pty Ltd’s current authorised office holder. The trust deed is not in evidence. Mr Michos cites concerns about confidentiality by the beneficiaries for this. There is no reasonable explanation provided for these concerns.
I accept Mr Michos’ evidence that his mother resides at the Ascot Vale property address. The exhibited title search indicates that a person, whom he identifies as his mother, has a life estate in the property. A transfer of land instrument dated 28 May 2013 indicates that his mother transferred all her fee simple estate in the property in consideration of ‘natural love and affection’ to Webbingdon Pty Ltd. Mr Michos executed the transfer on behalf of Webbingdon Pty Ltd.
Eight days prior to his mother transferring the Ascot Vale property, on 20 May 2013, Mr Michos executed a mortgage of the property with ANZ on behalf of Webbingdon Pty Ltd. Mr Michos says that the mortgage for the Ascot Vale property owned by Webbingdon Pty Ltd was ‘a line of credit that exists for the benefit of the beneficiaries’. Yet he says that it was provided when his Disability Support Pension was ‘significantly greater than what it is now’ and that ‘[g]iven the significant decrease to my income since the year 2014, any utilization of the line of credit would be met with an inability for repayment and servicing given my limited income.’ It appears from this that the property mortgage has been used as a line of credit by him. He says this was for the beneficiaries. There is no explanation as to how or why he would then be personally responsible for repaying the mortgage. (Nor how the mortgage was obtained prior to the date of the property transfer.) The title search for the property indicates that it remains mortgaged. Mr Michos has not contradicted Eastbrooke’s submission that ‘dormant’ means the mortgage has been repaid but not discharged.
Given that his mother has a life interest in the Ascot Vale property, that there is evidence from Mr Michos that she still resides there, and that the property is not in Mr Michos’ name, I am not satisfied that the property ownership by Webbingdon Pty Ltd of itself evidences an ability by Mr Michos to pay any costs order.
There is however a question as to whether Mr Michos has any other assets or financial resources to draw upon to meet a costs order. His evidence is somewhat opaque in respect of these issues. For instance, Mr Michos seeks a protective costs order of up to $5,000. However, he has not provided any explanation of how he would pay up to $5,000 in circumstances where his income is minimal and he deposes his assets are nominal. This may be contrasted with the applicant in Bare v Small who sought to cap costs to $5,000 on the basis that a community legal centre had made $5,000 available to him. Mr Michos has also deposed that he is at risk of destitution if a costs order is made. That evidence is implausible given that he lives rent-free in a house owned by Webbingdon Pty Ltd. As discussed above, there is no fulsome explanation about the ‘line of credit’ in respect of the mortgage.
Given the uncertainties discussed above, I assess this factor neutrally.
Will a protective costs order further the overarching purpose?
Section 7 of the Civil Procedure Act 2010 provides the overarching purpose ‘is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute’. Weighing up all the factors above, I do not consider that it would further the overarching purpose to make a protective costs order. The trial is listed for a one day hearing of two discrete issues. Whilst the appeal raises some issues of public importance regarding statutory clarification, they are not of any great significance. As discussed above, there may be little, if any, practical benefit to Mr Michos even if he is successful on appeal. The absence of a protective costs order is unlikely to deter Mr Michos from pursuing his appeal.
I will make orders dismissing Mr Michos’ application for a protective costs order.
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