Municipal Association of Victoria v VCAT (No 2) - [2004] VSC 154

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No.8048 of 2002

MUNICIPAL ASSOCIATION OF VICTORIA	Plaintiff
V
THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL AND ANOR	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 APRIL 2004 AND WRITTEN SUBMISSIONS: 3 AND 5 MAY 2004
DATE OF JUDGMENT:	7 MAY 2004
CASE MAY BE CITED AS:	MUNICIPAL ASSOCIATION OF VICTORIA V THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (No 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 154

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PRACTICE AND PROCEDURE – COSTS – Whether “special” or “unusual” circumstances warranting costs on a higher basis than party and party – Freedom of information application unilaterally “uplifted” from the Victorian Civil and Administrative Tribunal by unsuccessful plaintiff commencing proceeding seeking declaration – Matter in the nature of a “test case” for the plaintiff – Rules 63.28, 63.31 and 63.32 of the Supreme Court Rules

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr S. Ricketson	Middletons
For the First Defendant	No appearance	Victorian Government Solicitor
For the Second Defendant	Mr J.D. Pizer	A.J. Macken & Co

HIS HONOUR:

In this proceeding, following the handing down of my judgment dismissing the plaintiff's claim, the second defendant has sought an order that the plaintiff pay his costs on an indemnity basis, alternatively on a solicitor and client basis. The plaintiff opposes any such order, but it has not advanced any argument against an order that the plaintiff pay the second defendant’s costs on a party and party basis.

It was common ground that, pursuant to s.24(1) of the Supreme Court Act 1986, the Court has a discretion concerning the making and content of orders for costs. It was also common ground that although the general rule is that the Court will order costs to be taxed and paid on a party and party basis (see r.63.28(a) and r.63.31 of the Supreme Court Rules), it has a discretion to order costs to be taxed and paid on a solicitor and client basis (see r.63.28(b) and r.63.32)[1], or on an indemnity basis (see r.63.28(c)) and that the discretion in respect of ordering costs on a solicitor and client basis was not limited to the particular circumstances described in r.63.32[2]. Further, the parties agreed that costs could be ordered to be taxed and paid on a higher basis if there were “special” or “unusual” aspects of the case which brought it out of the ordinary.[3]
[1]Bass Coast Shire Council v King [1997] 2 VR 5 at 29 per Winneke P with whom Hayne and Charles JJA agreed; Spencer v Dowling [1997] 2 VR 127 at 147 per Winneke P.
[2]Regal Life Insurance Ltd v Pacific Financial Resources Pty Ltd, unreported, Batt J, 16 November 1994, which was approved in King at 29.
[3]PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 at [34] per Chernov JA with whom Callaway and Buchanan JJA agreed.

Mr Pizer of counsel, who appeared for the second defendant, submitted that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Municipal Association of Victoria v VCAT (No 2)

Details

AGLC: Municipal Association of Victoria v VCAT (No 2) [2004] VSC 154
Case: [2004] VSC 154
Decision Date: 7 May 2004

CaseChat Overview and Summary

The case of Municipal Association of Victoria v VCAT (No 2) involved the Municipal Association of Victoria, which had commenced a proceeding seeking a declaration. This action followed an unsuccessful attempt to obtain a freedom of information application from the Victorian Civil and Administrative Tribunal (VCAT). The Supreme Court was tasked with determining whether the special or unusual circumstances justified awarding costs on a higher basis than the usual party and party basis. The case was significant as it acted as a test case for the plaintiff, potentially setting a precedent for similar future cases.

The central legal issues before the court were whether the circumstances of the case warranted a departure from the standard party and party costs order, and if so, what the appropriate basis for costs should be. The court had to consider the rules outlined in Rules 63.28, 63.31, and 63.32 of the Supreme Court Rules to determine the correct approach to costs in light of the unique nature of the proceedings. The court also needed to evaluate the impact of the plaintiff's decision to uplift the matter from VCAT and commence a new proceeding.

The Supreme Court found that the circumstances of the case did indeed warrant a higher basis for costs due to the unusual nature of the proceedings. The court highlighted the plaintiff's decision to uplift the matter from VCAT and commence a new proceeding as a significant factor. It was determined that the matter was in the nature of a test case for the plaintiff, which influenced the court's decision to award costs on a higher basis. The court ruled that the costs should be awarded on an indemnity basis, rather than the standard party and party basis, reflecting the special circumstances of the case. The court also noted that the plaintiff's decision to uplift the matter from VCAT played a crucial role in its reasoning.

In summary, the Supreme Court awarded costs on an indemnity basis, recognising the special and unusual circumstances of the case. The decision underscored the importance of considering the unique aspects of each case when determining the appropriate basis for costs, particularly in instances where a matter is uplifted from another tribunal and commenced anew. The outcome of this case may serve as a guiding precedent for similar cases in the future.

Orders