Pavlovic v Commonwealth Insurance Ltd
[2017] VSC 252
•2 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 2155
| JOSEPH PAVLOVIC | Plaintiff |
| v | |
| COMMONWEALTH INSURANCE LIMITED (ACN 067 524 216) | Defendant |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 and 2 May 2017 |
DATE OF JUDGMENT: | 2 May 2017 |
CASE MAY BE CITED AS: | Pavlovic v Commonwealth Insurance Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 252 |
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JUDICIAL REVIEW – Application for extension of time within which to make applications for leave to appeal – Application for leave to appeal – Extension of time within which to apply for leave granted – Victorian Civil and Administrative Tribunal Act 1998, s 148 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, Rules 4.05(2), 4.07(2) and 4.09(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr C Hanson | Turks Legal |
HIS HONOUR:
Background
In this proceeding Joseph Pavlovic (the plaintiff), who appears for himself, seeks to appeal decisions made at the Victorian Civil and Appeals Tribunal (the Tribunal) in proceeding no. C2060/2014.
That proceeding before the Tribunal related to a claim made by the plaintiff against the defendant in respect of a Comminsure Home Insurance Policy No HOM3023097 (the policy) for loss and damage sustained to the plaintiff's rental property at Belmont in the State of Victoria (the property).
The plaintiff, by his claim dated 9 April 2014, listed some 85 items of loss and damage to the property as a result of which the plaintiff claimed he had suffered a total loss of just in excess of one quarter of a million dollars, but claimed $226,293, being the insured amount under the policy.
The defendant denied the plaintiff’s loss and damage claim.[1]
[1]Defendant’s Points of Defence, 24 September 2014; CB793.
A hearing in relation to these matters was conducted over two days at the Tribunal, commencing on 18 May 2015. At the conclusion of the hearing, orders were made for further written submissions by both parties. The Tribunal handed down its substantive decision in the proceedings on 17 September 2015.
In summary, the plaintiff now seeks to appeal the Tribunal decision of Member Pennell of 17 September 2015 which awarded the sum of $74,536.48 to the plaintiff on his claims. The decision of the same Member on 5 May 2016 dealt with costs and the plaintiff's claims at the Tribunal for interest. On these claims the plaintiff was awarded $13,192.79 in respect of costs.
In relation to those decisions, I note that the plaintiff was partially successful, both in relation to his substantive liability claims and he also was partially successful in relation to his claim for costs.
Plaintiff’s application for an extension of time within which to seek leave to appeal
By Originating Motion between the parties dated 3 June 2016, the plaintiff seeks, first, leave to appeal out of time in relation to the substantive decision made by the Tribunal on 17 September 2015. The plaintiff also, by his summons filed 9 June 2016, seeks leave to appeal from the decision of the Tribunal made on 5 May 2016 in respect of costs and interest.
The plaintiff notes in his Originating Motion that he did not receive the Tribunal's decision of 5 May 2016 until 10 May 2016. This state of affairs was again referred to by the plaintiff in his oral submission before me.
Plaintiff’s proposed substantive appeal
By his Originating Motion dated 3 June 2016 and supporting Summons filed 9 June 2016, the plaintiff also seeks substantive relief in this court, including orders setting aside the Tribunal's orders to which I have referred and, in the alternative to those primary orders, orders remitting the plaintiff’s claim back to the Tribunal to be heard by a differently constituted Tribunal Member.
In addition to certain other procedural orders, the plaintiff’s Originating Motion seeks an order that fresh evidence, in the form of an expert report of Yttrup Consulting Engineers, dated 5 April 2016, be admitted in this appeal and, by inference, in any proceedings remitted to the Tribunal.
The plaintiff's Summons on Originating Motion also seeks a number of heads of ultimate relief, some in the alternative, including the ordering of another hearing at the Tribunal, the admission of certain specific new evidence from the Consulting Engineers to which I have also alluded and, alternatively, that the defendant reinstate the subject dwelling to the condition it was in before the alleged occurrence of certain water damage. The plaintiff also seeks orders for a recovery of rental and the plaintiff's out-of-pocket expenses and asserted losses of earnings.
By draft Notice of Appeal dated 8 August 2016 and an Affidavit affirmed by the plaintiff on 9 June 2016, the plaintiff also seeks to identify a number of questions of law, including as to whether the proceedings at the Tribunal were conducted contrary to ss 78, 97, 98(1), 102(1), 102(b), 102(3)(a), 133, 134 and 136 of the Victorian Civil and Appeals Tribunal Act 1998 (the VCAT Act) and, further or alternatively, were conducted contrary to the rules of natural justice and, in particular, ss 97 and 98(1) of the VCAT Act.
The plaintiff's draft questions of law also include whether the proceedings below were conducted in breach of Magna Carta, in particular, clause 40, and also s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[2]
[2]By letter to the Supreme Court of Victoria, date 9 September 2016, the Victorian Equal Opportunity and Human Rights Commissioner advised that the Commissioner had received a Charter Notice dated 19 August 2016, pursuant to s 35 of the Charter of Human Rights and Responsibilities Act 2006, from the plaintiff, and the Commissioner advised that the Commissioner would not intervene in proceeding S CI 2016 2155.
The plaintiff also raises in his draft questions of law and grounds of appeal an alleged breach by the Tribunal of s 18(d) of the Civil Procedure Act 2010 (Vic).
In relation to the orders of the Tribunal made 5 May 2016 concerning interest and costs, the plaintiff asserts that the Tribunal Member failed to take into consideration:
(a) s 57 of the Insurance Contracts Act 1984; and
(b) ss 109(3)(a), 109(3)(a)(i), 109(3)(a)(iv) and 109(3)(b) of the VCAT Act.
Leave to appeal from VCAT
Pursuant to s 148 of the VCAT Act, a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding to a judge of the Trial Division of this Court, with leave of the Court, or if the Tribunal below is constituted differently by the President or a Vice President of the Tribunal, pursuant to leave to the Court of Appeal of this Court.
By the plaintiff's Summons on Originating Motion to which I have referred, the plaintiff initially seeks “… leave to appeal out of time …”, and in substance an extension of time within which to make his applications for leave to appeal against the substantive order of 17 September 2015 and, if necessary, a similar extension in relation to the Tribunal’s costs and interest orders of 5 May 2016. By his Originating Motion the plaintiff specifically seeks leave to appeal out of time in respect of the decision of VCAT on 17 September 2015.[3]
[3]Originating Motion dated 3 June 2016, [2].
The structure of this hearing
I have sought submissions from the plaintiff and the defendant, at this initial stage in connection with the plaintiff's applications for extension of time within which to bring his application for leave to appeal, and to file the plaintiff’s other necessary originating process. I have also indicated to the plaintiff and the defendant that if, after I had heard the plaintiff’s applications for extension of time, I grant the extensions sought by the plaintiff, I shall then deal with the question of leave to appeal which the plaintiff also seeks.
Those matters I have indicated to the parties will be the subject of my initial consideration. Only if leave is granted would the appeal proper be argued. If the plaintiff is refused leave to appeal, then that will be the end of the plaintiff’s applications.
The plaintiff’s applications for extension of time
The applications for extension of time by the plaintiff arise because, as the plaintiff accepts, his application to appeal in respect of the substantive orders made by the Tribunal in September 2015 were not made within 28 days of that order as provided by s 148(2) of the VCAT Act.
The plaintiff in substance, although not by express reference to apposite provisions and Rules, applies orally under s 148(5) of the VCAT Act and Rule 4.05(2) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (the Rules) in relation to his applications for an extension of time to make such an application.
The plaintiff's application in relation to the Tribunal’s substantive decision of 17 September 2015 is in respect of an extensive period of approximately nine months between the substantive decision made at the Tribunal in September 2015 and the date of the plaintiff's process in this court, including its application seeking extensions of time and for leave made in June 2016.
I note that the plaintiff did not orally press his application for an extension of time within which to seek leave to appeal in respect of the interest and costs orders made on 5 May 2016. The plaintiff however did submit that he did not become aware of that order until 10 May 2016.
Section 148(2) of the VCAT Act provides that an appeal must be made within 28 days of any order, including the interest and costs order which was made on 5 May 2016. Accordingly, it remains the case that the plaintiff was marginally out of time in respect of the issue of process in relation to the 5 May 2016 interest and costs award in this matter.
The defendant resists the plaintiff's application for an extension of time in respect of both the substantive order and the interest and costs order. The defendant submits that the time available to the plaintiff to make his intended applications should not be extended, including in the defendant's submissions, because of the plaintiff’s lack of proper material providing an explanation for the delay and also the palpable weakness in the plaintiff's draft grounds of appeal and questions of law as sought to be articulated by the plaintiff.[4]
[4]Defendant’s submissions, 24 August 2016, [13].
At the hearing of this appeal before me, although not earlier addressed in his material, the plaintiff sought to justify his late issue of process in this court in relation to the decisions in the Tribunal by arguing, in substance, that he considered that until all issues had been determined at VCAT, that is including interest and costs, he did not need to initiate an application for leave to appeal to this court.
The plaintiff also submitted that until he was in a position to appreciate the nature and overall outcome at the Tribunal, as a result of both the interest and costs decisions in May 2016, as well as the substantive decision in September 2015, the plaintiff was not in a position to finalise the formulation of the applications that he might make and the materials to support those applications.
Finally the plaintiff submitted that the minimal non-compliance with the requirements of the VCAT Act in relation to the issue of his Originating Motion of 3 June 2016 in respect of the Member's decision as to costs and interest in May 2016 should result in a favourable exercise of discretion by the court in connection with that part of the appeal at least.
Decision on plaintiff’s extension of time applications
In the circumstances I have outlined above, and in particular those relied upon by the plaintiff, and taking into account what the plaintiff has now presented as his reasons for delay in initiating his applications by Originating Motion and related Summons, I consider that it is appropriate to extend the time within which the plaintiff was able to make his applications for leave to appeal in this matter.
In my view, in the circumstances of this matter, I should exercise my discretion in favour of the plaintiff in relation to the time extension applications which the plaintiff has made in connection with both relevant decisions at VCAT. The plaintiff has from the perspective of a self-represented person, in my view, adequately explained why he did not initiate his application until June 2016.
Further, I am also persuaded to grant the plaintiff’s applications for extension of time because the defendant has not sought to rely upon any particular prejudice to it arising from the plaintiff's late issued process. Whereas, on the other hand the prejudice to the plaintiff, were he not to be granted an extension of time within which to initiate and prosecute his arguments for leave to appeal, would be potentially substantial.
Finally, I also observe that although in relation to the plaintiff’s extension of time claim I harbour serious reservations about the merits of the leave application viewed in the preliminary way by reference to the plaintiff’s proposed questions of law and grounds of appeal, I considered that in this case it would be just, in all the circumstances, including the fact that the plaintiff is self-represented, to extend time and permit argument as to why leave should be granted or refused on the plaintiff’s applications for leave to appeal.
Leave to appeal
The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of the Rules. Rule 4.09 confers a discretion on the court, and without that discretion being limited, empowers the Court to refuse leave in circumstances where the court is satisfied that the plaintiff does not have a prima facie case on his or her prospective appeal, or that to refuse leave would impose no substantial injustice in the circumstances.
The approach to the question of whether or not leave should be granted under s 148(1) of the VCAT Act was addressed in some detail in a decision of the Court of Appeal in this Court in Department of Premier and Cabinet v Hulls.[5] The approach in Hulls was also summarised by the Chief Justice of this Court in Myers v Medical Practitioners Board of Victoria,[6] in which her Honour the Chief Justice summarised the salient considerations, or at least the principal ones as follows:
[5][1999] 3 VR 331.
[6][2007] 18 VR 48.
(a) first, whether leave is granted or not must always depend upon the justice of the particular case;
(b) secondly, if leave is to be granted the plaintiff must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal succeeding or failing;
(c) thirdly, the plaintiff need not establish an error below, that is for the appeal itself, rather the plaintiff will be required to show that there is a real or significant argument to be put that error below exists;
(d) fourthly, although not essential the plaintiff may identify a question of law that is of general or public importance. This will weigh in favour of a grant of leave;
(e) fifthly, once a question of law has been identified which bears directly upon the relief which will be sought on appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect;
(f) lastly, where an order sought to be appealed is an interim order there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
A plaintiff seeking to proceed under s 148 of the VCAT Act must comply with the requirements of that Act and the applicable Rules of Court. Such an applicant must first obtain leave to appeal by issue of an originating motion and, within the time required by the Rules of Court, by filing a compliant affidavit in support of that application which amongst other things exhibits the applicant’s proposed Notice of Appeal. The process of obtaining leave, the grant of leave and the prosecution of the appeal thereafter, are regulated by the Rules of this Court including Rule 4.07(2) of the Rules.
Pursuant to s 148(2)(b) of the VCAT Act and Rule 4.07(2) of the Rules mentioned above, the questions of law raised in the appeal are required to be set out in the proposed Notice of Appeal. The plaintiff has produced such a document. However, because the plaintiff is self-represented, I consider that the proper approach in such an application is to assess the adequacy of the plaintiff’s draft Notice of Appeal by reference to both the plaintiff’s submissions and also the materials put forward by the plaintiff namely, his affidavit and his draft Notice of Appeal, and draw upon all these communications by which the plaintiff seeks to explain what it is that are the relevant potential errors of law.
Questions of law and grounds of appeal
Statutory provisions relied on by the plaintiff
The plaintiff has in his proposed Notice of Appeal, affidavit and submissions referred to numerous various statutory provisions, to which I have already made specific reference. It is convenient at this point to address those provisions in an overall way.
In respect of the statutory provisions sought to be relied upon by the plaintiff, I am not satisfied by the evidence, supporting materials or any of the arguments made by the plaintiff that any of the provisions cited from any of the Acts and Statutes, which the plaintiff has sought to rely on, are at all likely to establish or even give rise to any arguable error on the part of the Tribunal below.
Further, in respect of the provision of the Civil Procedure Act 2010 sought to be relied on by the plaintiff, I accept the defendant's submission that s 4(3) of that Act excludes the Tribunal from the application of that Act.[7]
[7]T124.6-13.
Other principal grounds of appeal
I now deal with the grounds of appeal that have been the focus of argument in this application.
In relation to asserted draft Ground 1, the plaintiff complains that he was not given reasonable opportunity to call evidence and, on occasions, to cross-examine the defendant's witnesses before the Tribunal.
I am well satisfied, on the basis of the many passages of transcript cited by Mr Hanson for the defendant, that the plaintiff was given a reasonable opportunity to cross-examine those witnesses which he sought to challenge at the relevant Tribunal hearings, and that to the degree the Member sought to curtail cross-examination, he was entitled to do so in the proper exercise of his discretions in relation to the conduct of the hearings involved.[8]
[8]T117.26-118.12; Transcript of Proceedings, Pavlovic v Commonwealth Insurance Ltd (Civil Claims) (Victorian Civil and Administrative Tribunal, C2060/2014, Member J Pennell, 19 May 2016) 240.13, 17-22, 281.22-282.13.
Further, I am unpersuaded that the Tribunal's enquiries of Counsel for the defendant at times during the VCAT hearings amounted to any more than the Tribunal seeking to ensure, in the usual way, that the materials on which the applicant at the Tribunal sought to rely, had been seen and considered by the defendant's Counsel, before the plaintiff addressed those documents at the hearing before the Tribunal Member. I reject the plaintiff’s suggestion that in effect, before VCAT, the defendant’s Counsel made the decisions as to which documents the plaintiff could rely on.
In relation to both Ground 1 and the other grounds which make some oblique allusion to the same complaint, I am similarly unpersuaded that there was any error of law arising as a result of the plaintiff's assertion that he was denied the opportunity to present two particular affidavits and one statutory declaration at the VCAT hearings.
I am satisfied that the transcript references to which Counsel for the defendant has taken me clearly establish that, in fact, the Tribunal Member received the materials referred to in the last preceding paragraph, on an effective but informal tender of those materials at the Tribunal by the plaintiff. [9]
[9]T122.7-27; Transcript of Proceedings, Pavlovic v Commonwealth Insurance Ltd (Civil Claims) (Victorian Civil and Administrative Tribunal, C2060/2014, Member J Pennell, 18 May 2016) 106.21-107.24.
Similarly, I am not satisfied that the plaintiff has identified any arguable error by the Tribunal or unfairness to him in relation to the defendant's service and reliance upon what has been referred to as the Genitsaris Expert Report of 1 June 2015. On the contrary, I am satisfied that the plaintiff received that expert report at the time of closing submissions on about 2 June 2015.[10] I am also satisfied that the plaintiff at the Tribunal responded to the Genitsaris report without complaining that it should not be accepted by the Tribunal Member, or that it had not been the subject of an authorising order and, further, without suggesting at the time that he was taken by surprise as a result of the receipt of that report and the need to deal with it.[11]
[10]T76.21-23.
[11]T77.27-29; T82.4-12.
Neither am I satisfied that there is any basis for the submission made in the present context by the plaintiff that Mr Genitsaris' evidence was somehow tainted by him assuming the role of an advocate at the Tribunal, or the plaintiff's suggestion which amounted to an assertion that Mr Genitsaris' expert evidence failed to comply with the expert code that was relevant to that evidence.[12]
[12]T21.11-25.
None of the submissions made, or the material referred to by the plaintiff in relation to the evidence of Mr Genitsaris, or otherwise, convinced me that any arguable error was perpetrated at the Tribunal by the relevant Member, or that he failed to ensure that the plaintiff was afforded procedural fairness at all times or in any particular respect.
In relation to Ground 9, I reject the plaintiff's informal application to introduce at this time an expert report by Yttrup Consulting Engineers dated 5 April 2016. The plaintiff’s attempt to introduce this engineering report at this time is to underpin his foreshadowed argument on the merits which is intended to somehow demonstrate that the Genitsaris report was incorrect, or that it was in some way false, or that it was some way misleading. It is clear however that such post-hearing evidence is prima facie inadmissible in these applications and that rather than such evidence relating to any error of law below, the plaintiff is attempting to re-agitate the merits canvassed at VCAT.
Further, it is manifestly clear that what might be said in an expert report produced many, many months after the date of the substantive decision on liability cannot sensibly give rise to a reviewable error of law on the part of the Tribunal Member concerned.
In Ground 3, the plaintiff asserts the Tribunal below relied upon a non-current version, or versions, of what are referred to as Product Disclosure Statements relevant to the policy. I am however satisfied that it was the plaintiff himself who at VCAT presented the non-disclosure statement dated May 2007 which the Tribunal Member ultimately relied upon as one of the relevant Disclosure Statements.
The plaintiff made it clear to me during submissions on this application that at the time of the hearing before the Member at the Tribunal he was of the view that the Product Disclosure Statement, or Statements, which he produced to the Member, and which were ultimately referred to by the Member in his decision of September 2015, were the current and relevant Disclosure Statement or Statements.
The plaintiff conceded, and made it quite clear in his submissions to me in this application for leave to appeal, that it was not until sometime after the September 2015 decision by the Tribunal that he appreciated that the relevant Disclosure Statement to be read in connection with the policy was one dated 18 February 2013.
Accordingly, any error in this regard by the Tribunal was caused by the plaintiff in the hearing below.
At all events, Counsel for the defendant has established to my satisfaction that “Exhibit 38”, at Court Book 240.5, is likely to establish a minor financial difference from the plaintiff's point of view in respect of his arguable entitlement under the policy, as compared with the May 2007 Disclosure Statement, which the plaintiff now says is the pertinent disclosure statement produced in February 2013.
That financial difference arising as a result of the application of the two different disclosure statements appears to be in the order of only $320. I note that the plaintiff in these applications did not seek to contradict this conclusion.
Accordingly, even if the Tribunal Member made an error of reliance in relation to the Disclosure Statement or Statements he considered relevant, and that error could be established by the plaintiff on appeal, the consequence appears to be so negligible as to not justify leave on that ground alone.
In Ground 6, the plaintiff complains that the Tribunal was in error because the plaintiff was forced to give evidence under duress and was also thereby deprived of an opportunity “to cross-examine himself”. I am satisfied however by reference to the passages of transcript of the hearing at the Tribunal referred to me by Counsel for the defendant, that the plaintiff was afforded procedural fairness and he was not placed under duress to give evidence, and that he was not treated in any way which could be regarded as unfair in relation to his opportunity to present his case or challenge the defendant's case or its witnesses or otherwise.[13]
[13]T108.13–112.19; Transcript of Proceedings, Pavlovic v Commonwealth Insurance Ltd (Civil Claims) (Victorian Civil and Administrative Tribunal, C2060/2014, Member J Pennell, 18 May 2016) 8.20-23, 16.20-24, 17.16-25, 97.23-31, 109.15; Transcript of Proceedings, Pavlovic v Commonwealth Insurance Ltd (Civil Claims) (Victorian Civil and Administrative Tribunal, C2060/2014, Member S Wilson, 2 March 2015) 33.15-34.2.
Further I am unpersuaded by the plaintiff that any part of the transcript of the proceedings at the Tribunal is unreliable, or that that transcript which has been furnished to me on this appeal in the very large quantity is has been, should be considered together with audio tapes of the same hearings. In my view it is not necessary for me to do so, and I am not satisfied that there is any good reason why I should have recourse to any recordings of the hearing below. I am of the view that, in the circumstances, there is nothing which has been submitted by the plaintiff which should cause me to do so.
Finally, I am not persuaded that any arguable error is identified in Ground 13 and note that ground, which concerns the Insurance Contracts Act 1984, was the subject of assertions by the plaintiff which, like a number of others, were in my view unintelligible.
I add that I also consider it to be unnecessary and unproductive to seek to specifically address all of the plaintiff's suggested questions of law and grounds of appeal, because the vast majority of them are similarly quite incomprehensible, even after receiving the plaintiff's lengthy submissions seeking to identify arguable questions of law or relevant arguable grounds of appeal.
As I sought to point out to the plaintiff on many occasions during the course of his application, in most instances his asserted questions and grounds were either seeking to re-agitate the factual findings and merits of the claims and defences below, or were unfounded complaints in relation to what I consider to be the proper exercise of the Tribunal's discretion in connection with the conduct of what appeared to be a troublesome presentation by the plaintiff at the Tribunal.
For the reasons I have referred to, I am satisfied that the plaintiff has not identified any arguable error of law in the decisions of the Tribunal which he criticises. The plaintiff has failed in my view to satisfy me that he has anything approaching a prima facie case on appeal. The plaintiff has not identified any real or significant arguments in support of the suggested errors he refers to at the Tribunal, neither has the plaintiff satisfied me that in refusing him leave to appeal in respect of his application for leave to appeal on the suggested questions of law and the grounds of appeal he has argued, to do so would give rise to any substantial injustice to the plaintiff.
Accordingly, I dismiss the plaintiff's application for leave to appeal and refuse him leave.
Costs
An application has been made by the defendant for the costs of these proceedings, on a standard basis, subsequent to my decision that the plaintiff's application for leave to appeal should be denied.
I note that at the outset of the application for costs Counsel for the defendant argued for costs on an indemnity basis, supported by a Calderbank offer by the defendant which had been made to the plaintiff some considerable time ago. The defendant also sought to rely upon cases referring to the circumstances in which an indemnity costs order might properly be made.
Counsel for the defendant has now expressly withdrawn his application for indemnity costs, on instructions, and has amended his client’s position by making a simple application for costs on the basis that the plaintiff has lost his application for leave to appeal and that the defendant has prevailed in its resistance to those applications, and should therefore be paid its costs on the basic principle that the party succeeding at court is ordinarily paid its costs on the standard basis by the party opposing that position.
The plaintiff has been given the opportunity to make whatever arguments he wants in respect of the proper cost outcome of this proceeding. He has submitted to me that the defendant here should not be paid costs because he contends that in other proceedings pursuant to other orders, the defendant, he asserts, has not made payment to him. In my view however, this assertion and its relevance here has not been established.
The plaintiff has also suggested that he would need more time to consider this simple cost application by the defendant.
I do not accept that the plaintiff is unable to respond at this time to the defendant’s cost application. In my view the basis of the costs application argued by the defendant is as simple as it could be and I consider that the plaintiff is well able to understand the costs application and its bases. I also consider that the plaintiff has had ample opportunity this afternoon to raise whatever arguments he desires against such cost order.
It is also, in my view, reasonable to infer that the plaintiff would have turned his mind to what would need to be argued before me were he to either win or lose his applications. The period of time leading up to those applications has been considerable and the plaintiff, although self-represented, has clearly put a good deal of time and preparation into addressing his position at this hearing. The plaintiff has had ample opportunity to do the same in relation to what he should have anticipated in relation to the need to argue costs at the end of his applications.
Orders
For the above reasons, I shall make the following orders:
The Court orders that:
(a) Leave be granted to the plaintiff to extend the time within which the plaintiff is able to make the applications for leave to appeal in this matter;
(b) The plaintiff’s Originating Motion and Summons dated 3 and 9 June 2016 respectively, are otherwise dismissed.
(c) The plaintiff pay the defendant’s costs of the proceeding on a standard basis.
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