Snezana Angeleska (known as Slaveska) v State Of Victoria and others (according to the attached Schedule)
[2015] VSCA 213
•13 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0187
| SNEZANA ANGELESKA (known as SLAVESKA) | Appellant |
| v | |
| STATE OF VICTORIA and others (according to the attached Schedule) | Respondents |
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| JUDGES: | WARREN CJ, TATE JA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 13 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 213 |
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COSTS — Determination of success of respective parties on different issues — Relevance of issue not being the subject of decision below — Relevance of success on issue considered in obiter — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Zappia QC with Ms S Gory | --- |
| For the Respondents | Mr S A O’Meara QC with Mr R I Gipp | Victorian Government Solicitor’s Office |
THE COURT:
On 10 June 2015, this Court delivered judgment in an appeal brought by the appellant, Mrs Slaveska, against orders of an associate judge dated 18 November 2013, and in an application for leave to appeal against a costs order made by the associate judge on the same date. The respondents were the State of Victoria and 23 individual police officers. The relevant procedural history is set out in the Court’s judgment;[1] it need not be repeated in these reasons.
[1]Angeleska v Victoria [2015] VSCA 140, [1]–[11].
Upon the delivery of judgment, counsel for the respondents requested time to consider the Court’s reasons before the making of submissions as to costs. Counsel for the appellant did not object to this course. The Court made orders for the filing of any written submissions on the question of costs.
Pursuant to those orders, the respondents and the appellant filed submissions in relation to the costs of the appeal. While no submissions were filed specifically in relation to the costs of the application for leave to appeal against the associate judge’s costs order, it may be assumed that the parties intended their submissions to extend to those costs.
For the reasons that follow, we would order that the appellant pay the respondents’ costs of and incidental to the appeal and also the respondents’ costs of and incidental to the application for leave to appeal.
Relevant principles
Rule 64.38(1) of the Supreme Court (General Civil Procedure) Rules provides that the Court may make any order for the whole or any part of the costs of an application or appeal as it thinks fit.
It is clear that the Court’s discretion to award costs is a wide one, albeit that in general, costs will follow the event: in the absence of special circumstances, a successful litigant will usually receive his or her costs,[2] even if he or she does not succeed on all heads of claim.[3]
[2]Donald Campbell & Co Ltd v Pollak [1927] AC 732, 809, 811 (Viscount Cave LC).
[3]Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council (1998) 193 CLR 72, 97–8 (McHugh J); 124 (Kirby J).
In the exercise of its discretion, the Court is entitled to look to the realities of the litigation and will attempt to do ‘substantial justice’ between the parties on matters of costs.[4]
[4]Chan v Chen [2009] VSCA 233, [10] (J Forrest AJA, with whom Maxwell P and Redlich JA agreed).
In a case involving a multiplicity of issues where the parties enjoy mixed success, the Court may take a pragmatic approach and apportion costs with regard to the success of the parties on various issues and the significance of those issues to the case.[5] The Court is not required to take such a course, but may consider it a practical way of doing justice in an appropriate case.
[5]Ibid.
The outcome of the appeal
Mrs Slaveska’s appeal challenged the decision of the associate judge below to dismiss her claims relating to 14 of the 17 incidents of which she complained in her Amended Statement of Claim.[6] Her three appeal grounds were, in summary:
1. The associate judge applied the incorrect limitations period to Mrs Slaveska’s claims arising from Incidents 5 to 10, 12 and 13 and thereby wrongly concluded that they were time barred.
2. The associate judge erred in finding that Incident 5 was discoverable by Mrs Slaveska more than three years before her writ was filed and that her claims arising from that incident were therefore time barred.
3. The associate judge failed to properly exercise her discretion in determining whether to extend the limitation period to allow Mrs Slaveska to bring her claims in respect of Incidents 1 to 14.
[6]We refer to these incidents according to the same numbering used in the Court’s reasons: see Angeleska v Victoria [2015] VSCA 140, [13]–[29].
In relation to the first appeal ground:
(a) the Court rejected the appellant’s submission that damages arising from claims of false imprisonment, assault, trespass to land or trespass to goods could not, as a matter of principle, ‘relate to’ personal injury within the meaning of s 27B(1) of the Limitations of Actions Act 1958 (‘Limitations Act’);[7]
[7]Ibid [76].
(b) the Court considered that, contrary to the appellant’s submission, she had made damages claims in respect of each of Incidents 5 to 10, 12 and 13 which attracted the operation of s 27B(1) of the Limitations Act;[8]
(c) the Court accepted the appellant’s submission that the application of Part IIA of the Limitations Act to some of her claims did not mean that all of her claims founded upon the same causes of action were necessarily brought within that Part — her claims arising from Incidents 5 to 10 and 13 remained within time to the extent that they did not relate to personal injuries;[9] and
(d) the Court considered that no part of the appellant’s Incident 12 claims were brought within time.[10]
[8]Ibid [84], [103].
[9]Ibid [113], [115]–[116].
[10]Ibid [117].
The Court rejected Mrs Slaveska’s second[11] and third[12] appeal grounds in their entirety.
[11]Ibid [126].
[12]Ibid [138].
The respondents’ notice of contention sought the affirmation of the associate judge’s decision in respect of Incidents 1 to 10 and 12 on the grounds of Anshun estoppel and/or abuse of process. Given the Court’s conclusions on the appeal grounds, the notice of contention fell for determination only in relation to those of the appellant’s claims arising out of Incidents 5 to 10 that were brought within time.
The Court held that, in all the circumstances, to allow the appellant to take such claims to trial would be to allow an abuse of the Court’s process.[13] Accordingly, the appellant’s claims arising out of Incidents 5 to 10 were summarily dismissed.[14]
[13]Ibid [160].
[14]Ibid [180].
Having reached that conclusion, it was unnecessary for the Court to consider the alternative Anshun estoppel argument, though it did so in the interests of completeness.[15] The Court stated that if the point had arisen for determination, it would not have been satisfied of error in the associate judge’s conclusion[16] and would not have summarily dismissed the appellant’s claims arising from Incidents 5 to 10 on the basis of Anshun estoppel.[17]
[15]Ibid [181].
[16]Ibid [193].
[17]Ibid [224].
The effect of the Court’s conclusions was that the appellant’s Incident 13 claims survived to the extent that they did not claim damages related to personal injury, and she was granted leave to re-plead them to reflect that outcome.[18] Her appeal was otherwise unsuccessful; her claims arising out of Incidents 1 to 12 and 14 stood dismissed.[19]
[18]Ibid [230].
[19]Ibid [229].
Submissions
By their written submissions, the respondents seek their costs of the appeal. They contend that they were substantially successful on the appeal and that the costs should follow the realities of the case.
Mrs Slaveska’s submission was that each party should bear its own costs of the appeal. She submitted that in practical terms, she was successful on her principal ground of appeal and that more of her claims would have survived were it not for the abuse of process finding. She contended that the respondents’ abuse of process ground was not argued below and was not the subject of decision by the associate judge. In her submission, her decision as to whether to appeal and the scope of her appeal may have been influenced by the benefit of the associate judge’s reasoning on that issue. She also relied upon her success on the respondents’ Anshun estoppel ground, which she submitted ‘comprised the most significant portion of the parties’ submissions, both written and oral, in relation to the notice of contention’. She submitted that it would be unjust for her to pay costs on any part of the notice of contention arguments.
Consideration — costs of the appeal
There cannot be any doubt that in practical terms, the appellant enjoyed very limited success on her appeal. She contested the dismissal of her claims arising out of 14 incidents and succeeded only in respect of a subset of claims arising out of one incident.
The appellant’s limited degree of success was a consequence of two factors: the partial success of her first appeal ground, and the success of the abuse of process ground in the respondents’ notice of contention. We will address each factor in turn.
As we set out earlier, the appellant did not succeed on the principal substantive arguments made in support of her first appeal ground.[20] Instead, she succeeded on her alternative argument, scarcely the focus of her written or oral submissions, that even if Part IIA of the Limitations Act applied to some of her claims, the associate judge should not have dismissed her claims to the extent that they were not claims for damages that relate to personal injury.[21] While the success of that argument created the potential for some claims arising from Incidents 5 to 10, 12 and 13 to survive, it nevertheless represented a substantial curtailment of the relief the appellant would be entitled to seek. Further, the Court concluded that the Incident 12 claims would stand dismissed in their entirety in any event.[22] In the circumstances, the appellant’s submission that she was ‘in practical terms successful on her main ground [of] appeal’ must be thought to have overstated her success. Even in the confined context of that appeal ground, her success was limited.
[20]See paras 10(a)–(b). See also ibid [228].
[21]Angeleska v Victoria [2015] VSCA 140, [107], [115]. See para 10(c).
[22]See para 10(d).
Turning to the second factor, the abuse of process finding led to the summary dismissal of the appellant’s residual claims arising out of Incidents 5 to 10. The appellant’s submissions sought to downplay the significance of that fact, on the basis that the respondents’ abuse of process ground ‘was not argued below and was not the subject of decision by the primary judge’. In view of the Court’s observation that it was ‘clearly raised by the respondents’ summons and … not abandoned at the hearing’,[23] a fairer characterisation is that the point was one which had not been the focus of submissions before the associate judge and had not been the subject of her Honour’s decision.
[23]Angeleska v Victoria [2015] VSCA 140, [147].
The appellant further contended that she ‘first became aware of this ground of contention in the notice of contention filed by the respondents on 19 June 2014’ and that after it was raised it occupied only a few paragraphs of the respondents’ submissions. So much may also be accepted, subject again to the observation that the point was not completely new, having been squarely raised by the respondents’ summons dated 4 June 2012.
We would reject the appellant’s submission that it would be unjust to require her to pay costs in respect of any part of the notice of contention arguments. As the Court’s reasons show, the Court found that it was in the interests of justice to consider the abuse of process argument[24] and observed that it was inherently within the Court’s power to prevent the abuse of its own processes in any event.[25] In that regard, the issue was properly before the Court. Even in the absence of any decision on the point by the associate judge, the abuse of process ground could not be said to have taken the appellant by surprise: not only had it been raised by the respondents’ summons, but the extraordinary circumstances of the case themselves raised questions about whether the Court would consider the appellant’s claims to be an abuse of process.[26] In that context, the appellant’s submission that she was not wholly responsible for the costs incurred in bringing the appeal must be rejected; an abuse of process finding was always a risk she ran. Even if it be accepted that she did not consider the point until the notice of contention was filed, it was open to her at that time to limit the scope of her appeal to avoid the prospect of failure on the abuse of process ground, but she did not do so.
[24]Ibid [148].
[25]Ibid.
[26]See ibid [161]–[180].
The significance of the appellant’s success on the Anshun estoppel ground is reduced by the fact that the Court’s reasoning on that issue was expressed in obiter:[27] the Court’s conclusion had no effect on the final disposition of the appeal. It is true, as the appellant highlights, that the Anshun estoppel ground occupied the bulk of the parties’ submissions relative to the notice of contention. It is also true that the abuse of process ground was largely put by the respondents as a ‘parallel proposition’ adopting the same analysis. Nevertheless, as the coexistence of those facts suggests, the respondents’ success on the abuse of process ground depended significantly upon the submissions ostensibly put in support of the Anshun estoppel ground but adopted also for the abuse of process ground. It would be wrong to consider that the bulk of the submissions on the notice of contention went only to a ground resolved in the appellant’s favour while the respondents enjoyed success on a niche point. Rather, aspects of the respondents’ submissions on the Anshun estoppel point were sufficient, together with their submissions on abuse of process, for the respondents to succeed on the latter ground, even if the Court would not have upheld the Anshun estoppel ground had it been necessary to determine.
[27]Ibid [181].
In all the circumstances, we consider that the respondents should have their costs of the appeal. The reality of the case is that the respondents were substantially successful and the circumstances relied upon by the appellant are not such as to warrant the making of a different order as to costs.
Consideration — costs of the application for leave to appeal
There is no basis for treating the costs of the application for leave to appeal against the associate judge’s costs order in any different manner. Leave to appeal was refused[28] and the respondents should have their costs of that application.
[28]Ibid [228].
Orders
We would order that the appellant pay the respondents’ costs of and incidental to the appeal on a standard basis. We would further order that the appellant pay the respondents’ costs of and incidental to her application for leave to appeal against the associate judge’s costs order on a standard basis.
SCHEDULE OF PARTIES
SNEZANA ANGELESKA (known as SLAVESKA) Appellant
- and -
STATE OF VICTORIA First Respondent
SHAUN BINGHAM Second Respondent
MARK SMITHWICK Third Respondent
ANDREW STEPHEN Fourth Respondent
GARRY BARTON Fifth Respondent
CRAIG RHODES Sixth Respondent
CATHERINE SADLER Seventh Respondent
PETER JONES Eighth Respondent
TIMOTHY PECK Ninth Respondent
KEVIN NOLAN Tenth Respondent
LEIGH COLE Eleventh Respondent
PAUL KIRKRIGHT Twelfth Respondent
MATTHEW KNOWLES Thirteenth Respondent
MICHAEL BAADE Fourteenth Respondent
PHILIP WENDT Fifteenth Respondent
PETER ANDERSON Sixteenth Respondent
ADRIAN TENNYSON Seventeenth Respondent
GLENN PARKER Eighteenth Respondent
PHIL LOWERSON Nineteenth Respondent
THOMAS JOHN BATEMAN Twentieth Respondent
DENIS BUSIC Twenty-first Respondent
LUKE CORNELIUS Twenty-second Respondent
ANDREW GUTSKE Twenty-third Respondent
GREG MASON Twenty-fourth Respondent
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