| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2017 04989
| KEVIN JOHN PLUNKETT and DOROTHY LYNETTE PLUNKETT | Applicants |
| v | |
| ROADS CORPORATION | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 10 April 2019 |
CASE MAY BE CITED AS: | Plunkett v Roads Corporation (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 230 |
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COSTS – Determination of separate question under r 47.04, Supreme Court (General Civil Procedure) Rules 2015 – Whether s 91, Land Acquisition and Compensation Act 1986 creates a presumption as to costs – Respondent the successful party on the separate question – Whether costs should follow the event – Where parties consented to hearing and determination of separate question for case management purposes – Appropriate order is costs in the proceeding – Land Acquisition and Compensation Act 1986 (Vic), s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr G Peake | Rennick & Gaynor |
| For the Respondent | Mr S Goubran and Ms R Burd | Russell Kennedy |
HER HONOUR:
This proceeding involves a claim by Kevin and Dorothy Plunkett against the Roads Corporation (VicRoads), for compensation under Pt 5 of the Planning and Environment Act 1987 (Vic) (PE Act). On 7 February 2019, I made an order answering a separate question in the proceeding.[1] I further ordered that the question of the costs of the hearing and determination of the separate question would be determined on the papers, and made directions for the filing of written submissions on the question of costs.
[1]For the reasons given in Plunkett v Roads Corporation [2019] VSC 39 (Reasons).
The Plunketts seek an order that VicRoads pay their costs of and incidental to the hearing and determination of the separate question. For its part, VicRoads seeks an order that the Plunketts pay its costs of the separate question.
Having considered the written submissions filed by the parties, I have decided that the appropriate order is that the costs of and incidental to the hearing and determination of the separate question are costs in the proceeding. My reasons for that decision follow.
Section 91, Land Acquisition and Compensation Act
The parties agreed that s 91 of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act) applies to a proceeding involving a claim under Pt 5 of the PE Act.[2] They disagreed, however, on the effect of s 91.
[2]PE Act, s 105 applies Pt 10 and Pt 11 of the LAC Act to the determination of a claim for compensation under Pt 5 of the PE Act.
Section 91 of the LAC Act provides:
Costs
(1) In any proceedings under this Part, the Tribunal or the Court (as the case requires) may award such costs as it thinks proper but in making an order for costs must, if the Tribunal or Court considers it appropriate to do so, take into consideration –
(a) the amount of…
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- Case
- [2019] VSC 230
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved interpreting section 91 of the Land Acquisition and Compensation Act 1986 to ascertain whether it establishes a presumption about costs distribution. The court had to assess whether the successful party on the separate question should be awarded costs, and whether the consent of the parties influenced the court's approach to determining costs. The court was tasked with considering the purpose of the rules and the context in which the separate question arose.
The court found that section 91 did not create a presumption as to costs, and thus did not require costs to follow the event. The court emphasised the importance of the parties' consent in determining the appropriate costs order. Given the case management context and the consent of the parties, the court ruled that costs should be awarded in the proceeding rather than strictly following the event. This decision balanced the procedural fairness and the objectives of the rules with the specific circumstances of the case.
The final orders of the court directed that costs were to be awarded in the proceeding, reflecting the unique procedural context and the consent of the parties. This decision underscored the flexibility of the rules in managing costs in civil proceedings, particularly when parties agree to the process.
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