Rich v Olzak

[2000] VSC 249

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7850 of 1999

HUGO ALISTAIR RICH	Plaintiff
v.
PETER OLZAK AND OTHERS	Defendants

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF ORDER:	14 JUNE 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 249

---

HIS HONOUR:

1. On 19 May 2000 I handed down my judgment in this proceeding whereby I ordered that the plaintiff's application to the Court and the proceeding as such, be dismissed.  At the same time I reserved the costs of the application and the proceeding.

1. When I handed down my judgment the plaintiff was not present in Court.  That arose because I had not signed a "gaol order" authorising the prison authorities to bring him before the Court.  As I was simply handing down my judgment in the proceeding and not entertaining any further application in the proceeding at that time, I saw no justification for bringing the plaintiff before the Court.

1. Having handed down my judgment I informed counsel for the defendants that if they wished to make any application in respect of the costs of the plaintiff's application and the proceeding they should forward to me written submission in support of such an application and that having received submissions from all parties I would then deal with the matter in chambers.

1. On 23 May I received written submissions on behalf of the second and third defendants in support of such an application.  On 30 May I received written submissions on behalf of the first and fourth defendants.

1. By letter of 31 May copies of the defendants' submissions were sent to the plaintiff at the Port Phillip Prison.  The plaintiff was invited to respond to the defendants' submissions by 4.00 p.m. on 9 June.

1. On 8 June 2000 I received the plaintiff's submissions opposing the defendants' applications.

1. In those submissions the plaintiff, who is clearly aggrieved by my refusal to bring him before the Court on 19 May, has stated (inter alia):

"5.Using my powers of deduction I presume that the issue of cost was in fact discussed with the Court by the defendants on 19 May 2000.  I further presume that I am required to submit written submissions on the issue of costs.  What other procedural arrangements and directions that are associated with this matter are not known to me.

6.The costs associated with the defendants attending the Court on 19 May 2000 and the subsequent drafting, filing and serving of written submissions should not be made a part of the costs in this matter.  They should not because I was denied the opportunity to be heard on the question of costs on 19 May 2000.

7.Given the opportunity, the issue of costs could have been dealt with by me on 19 May 2000.  It is only due to the quirk of Mr. Justice Beach, that I as the plaintiff, was not permitted to attend the Court when matters affecting me were discussed.

8.It is my submission that I should not be subjected to penalty of costs for proceedings and the directions in relation to the preparation, service and filing of written submissions when I was excluded from being heard on the mater or simply attending."

1. I wish to state quite categorically that there was no discussion concerning the question of costs or any other matter on 19 May.  I said nothing further to counsel for the defendants that day concerning the proceeding other than I have stated in these reasons.

1. I have now considered the parties' written submissions concerning the defendants' applications for their costs of the plaintiff's application and the proceeding as such.

1. In a nutshell the defendants contend that as they have been successful in the proceeding I should follow the settled practice that in the absence of special circumstances a successful litigant should receive his or her costs.  See Gladstone Park Shopping Centre Pty. Ltd. v. Wills[1] and Raybos Australia Pty. Ltd. v. Tectran Corp. Pty. Ltd.[2]

   [1](1984) 59 A.L.J.R. 109

   [2](1988) 62 A.L.J.R. 151

1. The plaintiff on the other hand, contends that as an unrepresented plaintiff with no formal training in the law he is a very much disadvantaged party, and that he could not possibly have been expected to see, and I quote, "even the sketchiness facial features of the esoteric principle of law in relation to prima facie exclusivity of a new statutory right".

1. He points out that he has not really failed in a cause of action in relation to the facts or the law as issues have not been tried before the Court;  that he has failed only because he has chosen, as an unrepresented and untrained person, the incorrect path in seeking a remedy.

1. I have considered such matters in exercising my discretion as to the order which should be made concerning the costs of the proceeding.

1. I do not think that the matters relied upon by the plaintiff can be categorised as special circumstances.

1. If a person institutes a proceeding in this Court and it transpires that the Court has no jurisdiction to entertain the proceeding, as in my opinion is the situation in the present case, then the person instituting the proceeding must expect the proceeding to be dismissed and that he or she will be required to pay the other side's costs of the proceeding.

1. I order therefore that the plaintiff pay the defendants' costs of this application to amend his statement of claim and to add a further party to the proceeding and that he pay their costs of the proceeding as such including any reserved costs.