Morton v Elgin-Stuczynski & Anor

The plaintiff, Morton, sought an order under rule 63.24 of the Supreme Court (General Civil Procedure) Rules 2015 to be allowed to recover costs not limited by the recoverable costs if the claim had been brought in the County Court. The application arose from a dispute between Morton and the defendants, Elgin-Stuczynski and another, concerning the costs incurred in a personal injury claim. The case was before the Supreme Court of Victoria, which was asked to decide whether special circumstances existed that warranted a departure from the rule limiting the plaintiff's entitlement to costs to those recoverable if the claim had been brought in the County Court.

The central legal issue was whether the special circumstances existed to justify the exercise of the court's discretion under rule 63.24 to allow costs beyond those recoverable in the County Court. The plaintiff argued that two factors constituted special circumstances: the County Court registry's refusal to accept the initiating process and the timing of the delivery of the judgment. The court had to assess if these factors were sufficient to warrant an exception to the general rule.

The Supreme Court considered that the refusal of the County Court registry to accept the initiating process did not constitute a special circumstance warranting departure from the general rule. The court held that procedural errors of this nature do not typically rise to the level of special circumstances. Furthermore, the timing of the delivery of the judgment was not considered a special circumstance either, as it did not impact the substantive merits of the case. Consequently, the court found no grounds to exercise its discretion under rule 63.24 and dismissed the application.

The Supreme Court ordered that the plaintiff's application for an order allowing costs not limited to those recoverable if the claim had been brought in the County Court be refused. The court did not find the circumstances presented by the plaintiff to be special enough to warrant a departure from the general rule concerning cost recovery.