Racing Victoria Limited v Mark Kavanagh and Danny O'Brien [No 2]

[2017] VSCA 369

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0041

RACING VICTORIA LIMITED	Appellant
v
MARK KAVANAGH	First Respondent
and
DANNY O’BRIEN [No 2]	Second Respondent

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JUDGES:	MAXWELL P, McLEISH JA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	12 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 369

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PRACTICE – Costs – Appeal on question of law – Rules of Racing – Appeal against dismissal of charges – Appeal allowed in part – Compensatory nature of costs – Each party put to expense of contesting appeal – Proportionately greater success on part of respondents – Appellant to pay one-third of respondents’ costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC with Mr A M Dinelli	Minter Ellison
For the Respondents	Mr D P Sheales with Mr T I Purdey	Lander & Rogers

MAXWELL P
McLEISH JA
CAVANOUGH AJA:

1. On 17 November, the Court allowed in part an appeal by Racing Victoria Limited (‘RVL’) against orders of the Victorian Civil and Administrative Tribunal dismissing charges against the respondents (the ‘trainers’).  The question of the costs of the appeal was reserved, and the parties have since filed submissions.

1. The submission for the trainers was that RVL should pay their costs of the appeal, as they were ‘successful on the most serious charges, which were also the main issue in the appeal’.  On the other hand, RVL submitted that the trainers should pay 80 per cent of its costs of the appeal ‘on the basis that the appeal was largely — but not entirely — successful’.

1. An order for costs is neither a punishment for loss nor a reward for victory.  Its function is compensatory.[1]  Justice requires that the party which has unsuccessfully prosecuted, or defended, the proceeding (or the appeal) should compensate the successful party for the costs to which that party has been put.

   [1]Gdanski v Palms Court Management Pty Ltd [2017] VSCA 348 [67]–[68].

1. In this case, both RVL and the trainers succeeded on significant issues.  In the case of RVL, it succeeded in having determined that the prima facie evidence provisions in AR 178D are not the exclusive mode of proving the presence of prohibited substances.  The trainers, on the other hand, successfully defended their acquittals on the most serious of the charges brought against them, albeit that the majority of this Court reached that conclusion for reasons which differed from those of the Tribunal.

1. In those circumstances, it seems to us, the obligation to compensate the successful party operates in both directions.  The decision of this Court confirms that each side was entitled to maintain its position on the appeal and was obliged to incur costs in order to do so.

1. Weighing up the respective successes of the parties, however, it seems to us that the trainers enjoyed proportionately greater success by virtue of having maintained the Tribunal’s decision on the more serious charges.  RVL’s success extends only to the lesser charges, albeit that they were fully contested. In the circumstances, RVL should pay some of the trainers’ costs despite its success in having the lesser charges restored.

1. It would be undesirable to make separate costs orders reflecting the parties’ respective successes and failures.  A single order will suffice.  Doing the best we can, we consider that RVL should pay one third of the trainers’ costs of the appeals.  We will reserve to the trainers liberty to apply for a certificate under the Appeal Costs Act 1998.

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