Miller v Schlicht (No 2)

[2021] VSC 146

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04587

JAMES EDWARD MILLER	Appellant
v
ANTHONY THEODORE SCHLICHT	Respondent

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021
DATE OF RULING:	29 March 2021
CASE MAY BE CITED AS:	Miller v Schlicht (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 146

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COSTS – Appeal dismissed – Where every ground of appeal was refused – Where appeal doomed to fail – Where there is no good reason to depart from usual order as to costs – Costs follow the event – Supreme Court Act 1986 s 24 – Supreme Court (General Civil Procedure) Rules 2015 O 63 – Oschlack v Richmond River Council (1998) 193 CLR 72 – Northern Territory v Sangare (2019) 265 CLR 164.

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APPEARANCES:	Counsel	Solicitors
For the Appellant
For the Respondent	Simon Nixon & Associates

HIS HONOUR:

1. I delivered judgment in this proceeding on 9 March 2021, dismissing an appeal by the appellant under s 109 of the Magistrates’ Court Act 1989 from an order made by the Magistrates’ Court on 9 September 2019 requiring him to pay the respondent $36,250 plus interest and costs. This ruling concerns the question of the costs of the proceeding.

1. As stated in my reasons for judgment, the parties were given 14 days to provide any proposed minute of consent orders in respect of costs or, in the absence of agreement, their submissions on costs.

1. On 19 March 2021, the respondent filed submissions as to costs, noting that the parties had been unable to come to a consenting position. The appellant has not filed any submissions as to costs.

1. The Court’s jurisdiction in relation to costs is conferred by s 24(1) of the Supreme Court Act 1986. The Court’s discretion in relation to costs is to be exercised judicially and in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015.

1. In Oshlack v Richmond River Council,[1] McHugh J discussed the meaning of the expression, the ‘usual order as to costs’. His Honour observed that it:[2]

… embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

[1](1998) 193 CLR 72.

[2]Ibid 97 [67].

1. Recently, in Northern Territory v Sangare,[3] the High Court stated that:[4]

A guiding principle by reference to which the discretion is to be exercised — indeed, “one of the most, if not the most, important” principle — is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome.

[3](2019) 256 CLR 164.

[4]Ibid 173 [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

1. The respondent submits that the normal rule of costs following the event should apply and that there is no reason or factor for it not to here apply. The respondent seeks an order that the appellant pay the respondent’s costs of the appeal on a standard basis to be taxed in default of agreement. I accept this submission and will make the order proposed.

1. Each of the grounds raised by the applicant were fundamentally flawed and were dismissed. The Notice of Appeal purported to identity 13 questions of law, but none of these questions referred to the Order made by the Magistrate, the Magistrates’ Court proceeding or to the Magistrate’s reasons for judgment. I found that the Court’s jurisdiction to hear the applicant’s appeal was not enlivened. As such, the appeal was doomed to fail.

1. The appellant also failed to file an affidavit stating the acts, facts, matters and circumstances relating to the order the subject of appeal. He failed to exhibit a transcript of the proceeding in the Magistrates’ Court.  

1. In circumstances where the respondent has been overwhelmingly successful in the proceeding, where the appeal was doomed to fail and where the appellant has not filed any submissions on costs, I consider that the usual order as to costs should be made.

1. I make following orders:

1.        The appeal is dismissed.

2.The appellant pay the respondent’s costs of the appeal on a standard basis to be taxed in default of agreement.

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