Payne v Port Phillip City Council (No 2)

[2007] VSC 567

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8341 of 2006

BARRY WILLIAM PAYNE	Plaintiff
v
PORT PHILLIP CITY COUNCIL	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2007
DATE OF JUDGMENT:	13 December 2007
CASE MAY BE CITED AS:	Payne v Port Phillip City Council (No.2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 567

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COSTS – proceeding challenging validity of local law 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Nash QC with Mr G. Hardy	Frank Randle
For the Defendant	Mr C. Horran	Maddocks

HIS HONOUR:

1. The plaintiff in this matter has submitted that there should be no order as to costs.  The defendants seek an order as to costs in their favour of 90 per cent or some substantial proportion.  The ordinary rule would be that costs follow the event.  It is not of much assistance in this case because the event needs to be broken down into the various arguments and issues that were raised as to the validity of this local law.  I ought to consider a number of matters, I think, in the Court's discretion, as to what order as to costs should be made. 

1. I take into account that the plaintiff has had limited success having failed in a number of its primary arguments.  On the other hand, those arguments could not be characterised as unreasonable or vexatious.

1. The Court should have regard to the public interest in the question of the legality of subordinate legislation and whether the requirements of statute have been observed.  On the other hand, the interests of ratepayers and the council cannot be ignored.  I accept there was some ambiguity in clause 7A and that this contributed to this litigation. 

1. Taking all relevant matters into consideration I think that I should order that the plaintiff pay one half of the defendant's costs including any reserved costs.