Soo v Department of Justice and Community Safety (Corrections Victoria) (Costs)
[2025] VSC 662
•23 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 01072
| LIN SENG SOO | Applicant |
| ‑ and ‑ | |
| DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY (CORRECTIONS VICTORIA) | Respondent |
| ‑ and ‑ | |
| VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION | Intervenor |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 23 October 2025 |
CASE MAY BE CITED AS: | Soo v Department of Justice and Community Safety (Corrections Victoria) (Costs) (First Revision 6 November 2025) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 662 |
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COSTS — Administrative law — Appeal from VCAT dismissed — Where leave to appeal refused on contested grounds — Exercise of discretion to award costs — Whether usual order for costs appropriate in the circumstances — Claim for indemnity costs by the Respondent — Calderbank offer — Whether the matter was a public interest matter — Whether parties should bear their own costs for public interest matters — Enlargement of the issues as a factor relevant to exercise of discretion — Parties’ obligation under section 23 of Civil Procedure Act 2010 (Vic) to narrow the issues in dispute — Unreasonable and disproportionate legal resources expended by the Applicant — Applicant ordered to pay part of the Respondent’s costs on an indemnity basis.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 76, 148; Supreme Court Act 1986 (Vic) s 24; Civil Procedure Act 2010 (Vic) ss 22–24, 28; Calderbank v Calderbank [1975] 3 All ER 333; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Northern Territory v Sangare (2019) 265 CLR 164; Sea Shepherd Australia Ltd v The State of Western Australia (2014) 313 ALR 208; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; Oshlack v Richmond River Council (1998) 193 CLR 72, considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Davidson Mr Mackenzie | Maurice Blackburn |
| For the Respondent | Ms Fitzgerald Ms Slater | Victorian Government Solicitors Office |
| For the Intervenor | No appearances | No appearances |
HER HONOUR:
INTRODUCTION
This costs judgment follows delivery of the primary judgment and orders made on 4 September 2025,[1] pursuant to which the Court determined that:
[1]Soo v Department of Justice and Community Safety (Corrections Victoria) [2025] VSC 548.
(a) the Applicant’s application for leave to appeal made pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’), on question of law 1 and ground 1 in the amended notice of appeal, is granted;
(b) the Applicant’s application for leave to appeal on all other questions of law and grounds in the amended notice of appeal is refused; and
(c) the appeal is dismissed and the orders of the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) dated 10 February 2023 are affirmed.
Orders were made directing the parties to file and serve written submissions in respect of any application for costs by 4:00pm, 26 September 2025.
On 24 September 2025, the Victorian Equal Opportunity and Human Rights Commission (the ‘Commission’) notified the Court that it did not intend to file written submissions in respect of any application for costs.
On 25 September 2025, the Applicant filed its submissions with the Court, seeking an order from the Court that each party bear its own costs in the proceeding. Whilst recognising the Court’s broad discretion to order costs under section 24 of the Supreme Court Act 1986 (Vic) and the general principle that costs follow the event, the primary proposition made on behalf of the Applicant was that the litigation was in the nature of public interest litigation, which was a factor the Court may have regard to in exercising its discretion not to award costs against an unsuccessful litigant.
The Respondent filed its submissions with the Court on 25 September 2025, seeking an order from the Court that:
(a) the Applicant pay the Respondent’s costs of and incidental to the appeal from 10 March 2023[2] to 2 April 2025, on a standard basis, to be assessed by the Costs Court if not agreed; and
(b) the Applicant is to pay the Respondent’s costs of and incidental to the appeal from 3 April 2025 (‘the relevant period’),[3] on an indemnity basis, to be assessed by the Costs Court if not agreed.
[2]Being the date of the filing of the notice of appeal.
[3]The relevant period commenced on the day after the Respondent’s Calderbank offer of 20 May 2025 lapsed.
On 30 September 2025, the Respondent requested to file and serve further submissions to respond to the Applicant’s application for costs by 10 October 2025, a request which I granted. These submissions responded to the Applicant’s claim that the proceeding was a ‘public interest’ proceeding.
For the reasons set out below, I am satisfied that a portion of the Respondent’s costs should be paid by the Applicant on an indemnity basis. The proceeding was continued after the generous offer made by the Respondent, in circumstances where the offer made could not and was not able to be bettered by the continuation of the litigation. Moreover, given my findings against the Applicant on all of the grounds save the first (which did not result in a remitting of the proceeding to the Tribunal in any event), I am satisfied that an exercise of discretion to compensate the Respondent for a higher proportion of its legal costs is entirely appropriate in this case.
I am not satisfied that there is a valid public interest argument made out by the Applicant in response to the Respondent’s claim for costs. Rather, the enlargement of the issues raised and litigated by the Applicant were inappropriate, wasteful, inconsistent with section 24 of the Civil Procedure Act 2010 (Vic), and incompatible with the obligation to limit issues in dispute.
I do not consider that this litigation properly falls to be categorised as a ‘test case’ or a case which has wider public interest issues to be determined. As noted in the primary judgment, there is a serious question of ongoing jurisprudential controversy in respect of whether the Respondent is subject to the Equal Opportunity Act 2010 (Vic) on the operation of section 44 in the context of the provision of ‘services’. This proceeding was not a good choice of vehicle to ventilate that argument. That question, whilst of interest, was not germane to the order of 10 February 2023 made by the Tribunal. As such, it is not necessary or appropriate for the Court to make a determination on it. This argument serves as one example of the enlargement of the issues ventilated which were unnecessary and expanded the complexity, time and expenditure of resources of the Respondent and the Court unnecessarily.
Further, I disagree that the Applicant was successful in any material respect. The reliance on the outcome in respect of question of law 1 and ground 1 of the amended notice of appeal does not persuade me that there should be a different costs outcome. The Respondent’s concession of this question of law and ground does not persuade me that I should form a different view. Rather, given that the Respondent’s offer to resolve the proceeding in May 2025 was based partly on that position, it demonstrates an extension of the litigation by the Applicant in a manner and in terms which were unreasonable.
BACKGROUND
The present application for costs arises from an application for leave to appeal the orders of 10 February 2023 made by the Tribunal dismissing the proceeding for want of prosecution under section 76 of the VCAT Act. The Applicant’s claim before the Tribunal was based on alleged unlawful discrimination, a claim which was issued in 2019.[4]
[4]The Tribunal heard the application over seven days. Mr Soo was self-represented before the Tribunal except for one directions hearing where he was represented by Victoria Legal Aid.
On 10 March 2023, the Applicant sought leave to appeal the Tribunal’s orders under section 148(1)(b) of the VCAT Act in the Supreme Court of Victoria.[5] The initial notice of appeal raised three questions of law with supporting grounds.
[5]Mr Soo was initially self-represented in the proceeding before later being represented by counsel from the Victorian Bar pro-bono scheme.
The Applicant filed submissions in support of his original grounds of appeal on 1 August 2023 and the Respondent filed submissions addressing each of those grounds on 30 August 2023. The matter was fixed for hearing on 2 May 2024.
On 1 May 2024, the Commission sought leave to intervene to address a question of law within the public interest arising in relation to the provision of services by the Respondent, and the interaction between the Corrections Act 1986 (Vic) and the Equal Opportunity Act 2010 (Vic). Orders by consent were made by the Court on 2 May 2024, granting leave to the Commission to intervene. I note no consideration of the merits of the question of interest to the Commission was undertaken in the procedural decision to facilitate the Commission’s intervention.
The hearing was adjourned to 15 August 2024.
On 13 June 2024, the Applicant secured counsel through a referral made by the Court to the Victorian Bar Pro Bono scheme. As a result, a further adjournment was sought in order to allow time for filing of an amended notice of appeal and for all parties to file submissions in respect of that amended notice of appeal.
On 16 August 2024, the Applicant filed an amended notice of appeal which was expanded to include 14 questions of law supported by 32 grounds.
By submissions filed on 9 December 2024, the Respondent conceded question of law 1 and ground 1, and opposed the remaining 13 questions and the related grounds.
Separately, between 21 November 2024 and 21 May 2025, there was correspondence between the solicitors for the Respondent and the Applicant which attempted to resolve the appeal, focusing on allowing the appeal in respect of question 1 and its related ground. The relevant correspondence is exhibited to the affidavit of Elisabeth Buchan sworn 25 September 2025.[6]
[6]Affidavit of Elisabeth Buchan (filed 25 September 2025, S ECI 2023 01072, Supreme Court of Victoria), exhibits EB‑1.
An offer was made by the Respondent by letter dated 21 November 2024, which proposed consent orders pursuant to which the Applicant would be granted leave to appeal, the Tribunal’s order set aside, and the matter remitted to the Tribunal for rehearing with no order as to costs. This offer was rejected by the Applicant.
On 20 March 2025, an offer pursuant to the Calderbank[7] principles was made to the Applicant. The offer was expressed to be subject to the Applicant entering into a deed of release. The terms of the letter offered the Applicant $50,000 in full and final settlement on the basis that the appeal in the Supreme Court of Victoria was discontinued.
[7]Calderbank v Calderbank [1975] 3 All ER 333; applied in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.
No additional offer in respect of costs was made on the basis that the matter was referred by the Supreme Court of Victoria for pro bono assistance. Further, no indication was provided to the Respondent as to whether the Applicant was in fact liable to pay costs to those representing him.
The amount of $50,000 was considered by the Respondent to be[8]
well beyond what he is likely to receive if he achieved a successful outcome in the VCAT proceeding (in relation to which he will not receive his cost if he is successful) and is open to him (if required by the legal arrangements that he has entered into) to acquit any liability that he has the costs of the appeal from that amount.
[8]Affidavit of Elisabeth Buchan (filed 25 September 2025, S ECI 2023 01072, Supreme Court of Victoria), 10.
The letter also detailed why, in the Respondent’s view, the Applicant had poor prospects of achieving the outcomes sought on the appeal.[9] By letter on 2 April 2025, the Applicant rejected the Respondent’s offer and made a counter‑offer seeking the question of the Applicant’s costs to be heard on 22 May 2025 with the parties to confer on a timetable for affidavits and submissions. The Applicant indicated that it was prepared to agree to the amount of the settlement of the VCAT proceedings being confidential but not the fact of the settlement.
[9]Ibid 10–11.
On 4 April 2025, the solicitors for the Respondent requested an indication of the Applicant’s costs to date.
On 15 April 2025, the Applicant’s solicitors advised that the estimate for their client’s total legal costs to 2 April 2025, assessed on a standard basis, were $220,000–$250,000 inclusive of GST, professional fees, counsel fees, and disbursements. If the offer was accepted, the Applicant was prepared to agree to fixing the costs in the amount of $220,000, not including the additional costs incurred since 2 April 2025 for the preparation of the hearing on 21 and 22 May 2025, which involved significant further costs.
On 16 April 2025, the Respondent’s solicitors advised that they had not been able to obtain instructions by the Applicant’s deadline of 5:00pm on 16 April 2025.
On 12 May 2025, the solicitors for the Respondent wrote to the Applicant confirming the Respondent’s rejection of the Applicant’s offers of 2 and 15 April 2025, restating the Respondent’s offer of 20 March 2025. The offer was made pursuant to the Calderbank principles and was to remain open until 5:00pm on 19 May 2025. The offer reiterated why, in the Respondent’s view, the Applicant had poor prospects of achieving the outcomes sought on the appeal and explained why, in the Respondent’s view, the Applicant’s total legal costs to 2 April 2025 were disproportionately high.
On 20 May 2025, the Applicant’s solicitors rejected the Respondent’s offer of 12 May 2025 and made a counter-offer, subject to Court approval:
(a) to resolve the Tribunal claim on the basis the Respondent pay the Applicant an amount of $50,000 in full and final settlement of his claim, excluding legal costs (apportioned as $10,000 for pain and suffering, and $40,000 for current and future medical expenses);
(b) the execution of a deed of release including no admission as to liability and the amount of the settlement being confidential, but not the fact of the settlement; and
(c) the appeal in the Supreme Court of Victoria being resolved on the basis the application is allowed on ground 1 of the amended notice of appeal with the parties to confer on the question of the Applicant’s costs and the Respondent to pay the Applicant’s costs as agreed or taxed (‘the Counter‑offer’).
The Counter-offer was made pursuant to the principles in Calderbank and was expressed to remain open until the commencement of the hearing on 21 May 2025.
On 21 May 2025, the Respondent’s solicitors rejected the Applicant’s Counter‑offer of 20 May 2025 and extended the time for acceptance of the Respondent’s offer of 12 May 2025 to the commencement of the hearing on 21 May 2025. The Respondent expressed concern as to the rejection of the offer in the following terms:
We hold concerns about the reasonableness of your client’s rejection of the Calderbank Offer in circumstances where our client has offered to pay to Mr Soo the sum of $50,000 in full and final settlement of his claim (Settlement Sum) which is not materially different to the $50,000 Mr Soo seeks, being on account of $10,000 for pain and suffering and $40,000 for current and future medical expenses (which apportionment is not accepted by us for the reasons set out below), and which is expressed to be excluding legal costs in circumstances where, we understand, Mr Soo does not have any costs liability.
The Respondent’s offer of 21 May 2025 lapsed.
On 21, 22 and 26 May 2025, the application for leave to appeal and the appeal was heard and the Court reserved its decision.
On 4 September 2025, judgment was delivered and orders dismissing the appeal and affirming the orders of the Tribunal dated 10 February 2023 were made.
LEGAL PRINCIPLES
Under section 24 of the Supreme Court Act 1986 (Vic), ‘costs are in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid’. This discretion must be exercised judicially and is only confined to relevant considerations and ‘facts connecting with or leading up to the litigation’.[10]
[10]Northern Territory v Sangare (2019) 265 CLR 164, [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
Justice Edelman outlines several relevant principles to the discretion of costs, in Sea Shepherd Australia Ltd v The State of Western Australia,[11] where his Honour stated that:
[11](2014) 313 ALR 208, [5].
(a) The Court has a general discretion to award costs and, ‘without limiting [that] general discretion … the Court will generally order that the successful party to any action or matter recover his costs’.
(b) Costs are ‘compensatory’ in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
(c) As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
(d) The circumstances in which the Court will depart from the usual order for costs are rare and exceptional.
Therefore, costs will generally be awarded to a party on a standard basis. However, there are ‘special’ or ‘rare and exceptional’ circumstances whereby the Court may use its discretion to order that costs be paid on an indemnity basis.[12] The threshold of ‘special’ or ‘rare and exceptional’ must be met to depart from the usual rule.[13]
[12]Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 232 (Sheppard J).
[13]Oshlack v Richmond River Council (1998) 193 CLR 72, [66]–[67] (McHugh J).
Special circumstances, warranting a departure from the usual course, have been found to include:
(a) conduct which causes loss of time to the Court and to other parties;[14]
[14]Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991).
(b) the commencement or continuation of proceedings for an ulterior motive;[15]
(c) the undue prolongation of a case by groundless contentions;[16] and
(d) an unreasonable refusal of an offer to compromise,[17] or a Calderbank offer.[18]
[15]Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993).
[16]Ibid.
[17]For example, see Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721, 724 (Kirby P, Mahoney JA, Samuels AJA).
[18]Calderbank v Calderbank [1975] 3 All ER 333. For example, see Stewart v Atco Controls Pty Ltd (in liq) (No 2) (2014) 252 CLR 307, [4], [7]–[8] (Crennan, Kiefel, Bell, Gageler and Keane JJ).
Alternatively, there are instances where the Court has exercised the discretion to deny costs to a successful respondent where:
(a) the misconduct of a successful party may justify that costs not be ordered against a losing party;[19]
(b) the losing party had a genuine and reasonable concern about the substance of the litigation, thereby not justifying the order of costs against it; and
(c) there are public benefits arising from a proceeding which ultimately justify that costs not be ordered against a losing party.[20]
[19]Snow v Secretary, Department of Social Security (Costs) [2024] FCA 1076, [15] (O’Sullivan J).
[20]Environment Victoria Inc v AGL Loy Yang (No 2) [2023] VSC 86, [10] (Gorton J).
Ultimately, ‘the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis’.[21]
[21]Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 234 (Sheppard J).
APPLICANT’S SUBMISSIONS
The Applicant submits that the parties should bear their own costs of the application for leave to appeal and the appeal. The Applicant relies on the following four reasons.
Public Interest Nature
First, the appeal is public interest in nature because:
(a) The questions of law in the amended notice of appeal sought to determine the extent to which the State may interfere with the human rights of prisoners.
(b) The issues raised in the litigation concern the human rights of prisoners and persons with disability who deal with Courts and Tribunals. That is a freestanding basis on which the Court may conclude that the proceeding is in the public interest.
(c) It sought to clarify legal principles that affect an extremely wide and vulnerable section of the community. The issues raised are nothing less than whether the entire public prisoner community is protected from unlawful discrimination under Victorian law.
(d) The Department is the public body with responsibility for the management of prisons, and the Applicant, Mr Soo, is a former prisoner suing in respect of events that occurred when he was incarcerated.
(e) The intervention of the Commission is indicative of the public nature of the litigation. The Commission’s functions include to promote and advance the objectives of the Equal Opportunity Act 2010 (Vic). The Commission chose to intervene in this case in order to address a question of law of public interest.
I agree that, whilst there is a public interest in the proceeding arising from the question pertaining to the extent to which the State may interfere with the human rights of prisoners and the legal principles relevant to this question, the ambit of the appeal when properly considered did not extend to the determination of these questions.
I agree that as a general principle, the Respondent being a public body, its conduct and responsibilities are also more likely to raise matters which properly can be considered to be of public interest. However, it is the subject matter of the appeal which must be given greater consideration in this context.
I have considered the High Court case of Oshlack v Richmond River Council,[22] where Gaudron, Gummow, and Kirby JJ upheld the trial judge’s exercise of discretion to make no order as to costs, which relied in part on the litigation of the proceeding being in the public interest. This case clarifies that the existence of public interest does not, by itself, justify the Court departing from the usual order as to costs. The decision was concerned with whether the primary court took into account factors that were outside its broad costs discretion, not whether there was free‑standing public interest in the litigation. However, that does not mean that issues of public interest may not be a relevant discretionary consideration when considering the application.
[22]Oshlack v Richmond River Council (1998) 193 CLR 72.
However, as I explain below, it is my opinion that these factors do not meet the ‘special’ or ‘rare and exceptional’ circumstances threshold to justify the departure from the usual rule of costs that the successful party should receive their costs.
This proceeding was an application for leave to appeal an order of the Tribunal dismissing the Applicant’s proceeding pursuant to section 76 of the VCAT Act; though other legislative materials were relied upon in the appeal.[23] The allegations in this proceeding were personal in nature as they pertain to personal grievances in which the Applicant sought compensation. There does not appear to be evidence that the Applicant’s primary motivation was to uphold ‘the public interest and the rule of law’. Rather, this seems to have been a matter which was embraced by his pro bono lawyers.
[23]Being the Equal Opportunity Act 2010 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic), and the Racial and Religious Tolerance Act 2001 (Vic).
I further note that the Applicant did not instigate these proceedings for the public’s interest or on behalf of a community organisation,[24] nor is there evidence to the widespread public support of the Applicant’s cause.
[24]Cf Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 241–242.
Though significant questions of interpretation were agitated before me concerning services provided to prisoners, as I have stated,[25] this proceeding was not the vehicle for that debate. I further noted that ‘where a question of law has no real prospect of success, the public importance of the question will be diminished’.[26]
[25]Soo v Department of Justice and Community Safety (Corrections Victoria) [2025] VSC 548, [171].
[26]Ibid [122].
I further considered, inter alia, the case of Ruddock v Vadarlis (No 2),[27] where the Full Court stated:
That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation.
[27](2001) 115 FCR 229, [18].
Lastly, I have considered the assertion that public interest was evidenced by the intervention of the Commission in the proceeding as being a key factor. However, I note that there are several decisions that have been published which have the Commission as an intervenor on issues arising under the Charter of Human Rights and Responsibilities Act 2006 (Vic), where decisions of costs have not involved a departure from the usual order as to costs.[28]
[28]See Vallianos v Coroners Court of Victoria & Ors (Costs) [2023] VSC 121; Environment Victoria Inc v AGL Loy Yang (No 2) [2023] VSC 86.
Though there are elements to this proceeding that are of interest to the public, considering the factors of private interest and gain of the Applicant and the absence of public support in the community, it does not amount to a ‘special’ or ‘rare and exceptional’ circumstance to warrant the departure from the usual order as to costs.
Test Case
Second, the Applicant asserts that the proceeding is a test case and therefore costs should not be awarded against the Applicant. The Applicant asserts that questions under the amended notice of appeal are of ‘wide general importance and significance’, therefore meeting the threshold to be labelled a test case per Director of Public Prosecutions for Victoria v Ali (No 2).[29] Indeed, the Respondent contended that both the Applicant and the Commission pursued the litigation as a ‘test case’.
[29]DPP v Ali (No 2) [2009] VSCA 243.
Although the Applicant has attempted in the substantive proceeding through its amended notice of appeal to pose a question of ‘wide and general importance and significance’, this was misconceived. As I have stated in my primary judgment, this proceeding was not the vehicle to agitate the serious question of the ongoing jurisprudential controversy of the operation of section 44 of the Equal Opportunity Act 2010 (Vic) in the context of the provision of ‘services’. The decision appealed before me was confined to the decision of the Tribunal to dismiss the proceeding for want of prosecution pursuant to section 76 of the VCAT Act. This is a well‑trodden path and, as such, cannot be characterised as of ‘wide and general importance and significance’ and therefore cannot be categorised as a test case.
Concessions by the Respondent
Third, the Applicant opines that although the Applicant has been unsuccessful in the appeal, on the submissions of the parties in writing and at the hearing, he was assured a measure of success. The Respondent had conceded that the first question of law and ground of the amended notice of appeal would have succeeded and the matter should have been remitted to the Tribunal. Therefore, on the position of both parties at the hearing, the appeal would have succeeded and, had the ordinary rule applied, costs would have been awarded in the Applicant’s favour.
Therefore, the Applicant asserts that this should weigh in favour of the parties bearing their own costs. Moreover, there is no need to compensate a respondent for having to defend a proceeding it agrees should have succeeded.
I do acknowledge that question of law 1 and ground 1 of the amended notice of appeal was agreed by the Court to amount to procedural failure. However, I also note that in my judgment I further clarified that[30]
even though there has been a procedural failure, in my view it is not of such a character that there is any utility in remitting the proceeding on this ground. What I have said above … is pertinent in this regard.
[30]Soo v Department of Justice and Community Safety (Corrections Victoria) [2025] VSC 548, [132].
Evidently, the pursuit of this question of law and ground was inutile as none of the natural justice grounds were made out. There was no utility in referring the matter back to the Tribunal for reconsideration of the section 108 VCAT Act application as it was based on allegations of procedural fairness failures, which were considered on their merits in the substance of the appeal before me.[31] To then characterise the submissions on this question of law and ground as ‘successful’ is ill‑defined.
[31]See questions of law 2–5, 7–9, 11 and 12 and related grounds in the amended notice of appeal.
Further, the Applicant has had extensive opportunities to resolve this matter on the ‘success’ of question of law 1 and ground 1 which was conceded to by the Respondent. Therefore, I am of the belief that the Respondent should be compensated by way of an award of costs.
Applicant’s claim on the underlying merits of the appeal
Fourth, the Applicant contends that the Applicant was unsuccessful primarily because the Court held that the Tribunal’s findings as to the merits were irrelevant to its ultimate conclusion. But had he crossed that hurdle, the Applicant argues that there is no doubt that the Tribunal’s findings on the merits were wrong.
The Applicant highlights that the Respondent had accepted that significant elements of Judge Jenkins’ conclusions in her reasons are wrong, including on points agitated by the Applicant in the appeal.
To summarise my position on this, I refer to my primary judgment:[32]
These questions all proceed on a false premise that there was a determination of the merits of the Applicant’s claims made by the Tribunal. This is simply incorrect — the decision made, and the decision now under appeal, was a determination of a s 76 application for want of prosecution.
[32]Soo v Department of Justice and Community Safety (Corrections Victoria) [2025] VSC 548, [135].
The position put to me by the Applicant is misconceived. Though the Applicant agitated several grounds on the basis of error in the determination of the merits, the decision appealed before me was the dismissal of the application for want of prosecution under section 76 of the VCAT Act.
Therefore, I do not accept the Applicant’s position as to costs.
RESPONDENT’S SUBMISSIONS
The Respondent submits that costs should follow the event and seeks its costs in the following terms:
(a) the Applicant is to pay the Respondent’s costs of and incidental to the appeal from 10 March 2023 to 2 April 2025, on the standard basis, to be assessed by the Costs Court if not agreed; and
(b) the Applicant is to pay the Respondent’s costs of and incidental to the appeal from 3 April 2025, on an indemnity basis, to be assessed by the Costs Court if not agreed.
Standard basis for costs in favour of Respondent
The Respondent asserts that standard costs should be determined in favour of the Respondent because the only basis of success for the Applicant was leave to appeal being granted for question of law 1 and ground 1 of the amended notice of appeal. The application for leave to appeal on all other questions of law and grounds were refused and therefore wholly unsuccessful.
Further, neither the Respondent’s conduct nor any other relevant factor should cause the Court to depart from the ordinary rule of costs following the event.
Indemnity basis for costs in favour of Respondent
The Respondent submits that the Court should order the Applicant to pay the Respondent’s costs on an indemnity basis for the relevant period,[33] for the following reasons.[34]
[33]The relevant period commenced on the day after the Respondent’s Calderbank offer of 20 May 2025 lapsed.
[34]Affidavit of Elisabeth Buchan (filed 25 September 2025, S ECI 2023 01072, Supreme Court of Victoria) exhibits correspondence upon which the Respondent relies upon in respect of costs.
First, the Applicant failed to accept the Respondent’s Calderbank offer made on 20 March 2025, and restated on 12 and 21 May 2025. This was objectively unreasonable because:
(a) the Calderbank offer was received by the Applicant 62 days prior to the hearing of the appeal;
(b) the Calderbank offer was open for a reasonable period of 14 days;
(c) at the time of the offer, the Respondent considered and advised the Applicant’s solicitors in its letter of offer that:
(i) the Applicant had poor prospects of achieving the outcome he sought in the appeal proceeding; and
(ii) the settlement sum of $50,000 was well beyond what the Applicant would likely receive if he achieved a successful outcome in the underlying proceeding;
(d) the offer was clear; and
(e) the offer foreshadowed a claim for indemnity costs on the basis of the principles outlined in Calderbank v Calderbank.[35]
[35][1975] 3 All ER 333.
Second, the Applicant has rejected the Respondent’s attempts to resolve the matter, on the basis of the concession of question of law 1 and ground 1 since 21 November 2024. Had the attempts been accepted by the Applicant, the matter would have resolved on more favourable terms for the Applicant juxtaposed to those achieved on the appeal.
I acknowledge that the initial offer of 21 November 2024 was more formally made on 20 March 2025 (and expressed in Calderbank terms) and was subject to negotiation and a formal Counter‑offer by the Applicant (also stated in Calderbank terms). The Counter‑offer was rejected and the Respondent’s 20 March 2025 Calderbank offer was reinstated, expiring on 21 May 2025.
The Respondent’s attempts to resolve the appeal was litigation behaviour, which is to be commended, as it is behaviour which is consistent with the expectations of a public government entity pursuant to sections 22, 23 and 24 of the Civil Procedure Act 2010 (Vic).
Third, the Respondent asserts that the Applicant was unsuccessful in agitating 31 of its 32 grounds of appeal. The Applicant traversed all 32 grounds in its two written submissions[36] and orally at the hearing. The Respondent was required to prepare written arguments in respect of all grounds despite its frequent communication to the Applicant that it would be unnecessary for the Court to resolve the remaining 31 grounds. Consequently, the Respondent has incurred unnecessary costs despite efforts to maintain proportionate costs by not addressing the Court on issues that did not properly arise. The Court agreed with the Respondent’s assessment and refused leave to appeal on all but one ground, being the ground conceded by the Respondent.[37]
[36]Filed on 26 September 2024 and 24 January 2025.
[37]The Respondent conceded this ground in its submissions dated 9 December 2024.
Even setting aside the formal consideration of indemnity costs against the Calderbank principles, I am entitled to take into account the compliance with the overarching obligations of a party in exercising discretion as to costs. As I have previously noted, I consider the enlargement of the litigation, being as substantial as it was, added to the complexity and time of the litigation process and was wasteful and ill‑considered.
Whilst there is a serious question of ongoing jurisprudential controversy in respect of whether the Respondent is subject to the Equal Opportunity Act 2010 (Vic) on the operation of section 44 in the context of the provision of ‘services’, this proceeding was not a good choice of vehicle to ventilate that argument. That question, whilst of interest, was not germane to the order of 10 February 2023 made by the Tribunal. Thus, separate to the Calderbank considerations, I am of the view that there ought to be some further compensatory order as to costs for this course of conduct.
Fourth, the Respondent opines that the Applicant has deployed an unreasonable and disproportionate amount of legal resources against the Respondent in this litigation. This is evident by the Applicant’s disclosure that its legal bill was estimated to be assessed at $220,000–$250,000 prior to trial. Hence, the Applicant has not complied with its obligation pursuant to section 24 of the Civil Procedure Act 2010 (Vic) to ensure its legal costs are reasonable and proportionate to the issues in dispute.[38]
[38]Section 28 of the Civil Procedure Act 2010 (Vic) provides that the Court may take into account a breach of section 24 of the Civil Procedure Act 2010 (Vic) when exercising its discretion as to costs.
Considering all of the arguments put to me by the parties, I am satisfied that there is no good reason to relieve the Applicant from an award of costs against him.
Further, the refusal to settle the litigation at an earlier time, or at least by the final offer by the Respondent on 21 May 2025, was unreasonable conduct by the Applicant. Given the offer (made on 12 May 2025 and reiterated on 21 May 2025) and the unacceptable enlargement of the litigation by the Applicant beyond what was tenable given the terms of the Tribunal’s orders sought to be appealed, I am of the view that there are ‘special’ or ‘rare and exceptional’ circumstances warranting the departure from the usual rule of costs being paid on a standard basis, and I will award the Respondent a component of its costs on this more generous basis.
I am not, however, prepared to award the costs on an indemnity basis from 3 April 2025 as sought by the Respondent, but to award indemnity from the 5:00pm deadline on 21 May 2025 which was the expiry of the last offer made. I have done so because there was a course of negotiations which continued until that time. The position of the Respondent remained consistent, in its view, as to the merits of the Applicant’s claim.
CONCLUSION
In view of the foregoing, I will order that:
(a) the Applicant pay the Respondent’s costs of and incidental to the appeal from 10 March 2023 to 5:00pm on 21 May 2025 on a standard basis, to be assessed by the Costs Court if not agreed; and
(b) the Applicant pay the Respondent’s costs of and incidental to the appeal from 5:00pm on 21 May 2025 on an indemnity basis, to be assessed by the costs Court if not agreed.
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