Spear v Hallenstein (No 2)
[2018] VSC 207
•2 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00116
| FAY SPEAR | Plaintiff |
| v | |
| HAROLD HALLENSTEIN (in his capacity as the State Coroner) | First Defendant |
| ROBERT HILL | Second Defendant |
| GLENN SAUNDERS | Third Defendant |
| PETER BUTTS | Fourth Defendant |
| JOHN COBURN | Fifth Defendant |
| JEFFREY FORTI | Sixth Defendant |
| DONALD SMITH | Seventh Defendant |
| RODNEY GRIMSHAW | Eight Defendant |
| CHRISTOPHER FERGUSON | Ninth Defendant |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 2 May 2018 |
CASE MAY BE CITED AS: | Spear v Hallenstein (No 2) (Costs) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 207 |
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PRACTICE AND PROCEDURE – Costs – Plaintiff’s application raised a jurisdictional question – Finding that Supreme Court does not have jurisdiction to determine application – No basis for departing from usual rule as to costs – Oshlack v Richmond River Council (1998) 193 CLR 72.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K E Foley with Mr T Farhall | Flemington & Kensington Community Legal Centre |
| For the First Defendant | No appearance | -- |
| For the Second to Ninth Defendants | Mr O P Holdenson QC with Mr C T Carr | Tony Hargreaves & Partners |
HIS HONOUR:
On 13 April 2018, I answered a separate question which had been ordered to be tried before the trial of the proceeding. By the answer to that question, I concluded that this Court does not have jurisdiction to hear and determine the plaintiff’s application under s 59 of the Coroners Act 1985 (‘1985 Act’).
Following delivery of judgment on the separate question, I gave directions to the parties for the filing of submissions on the future conduct of the proceeding and on the question of costs.
The parties are agreed that, in light of the answer to the separate question, the application brought by Originating Motion should be dismissed. I will make an order to that effect.
In relation to costs, the plaintiff submitted that there should be a departure from the usual rule that costs follow the event on the basis that there exist special circumstances of the kind recognised by the High Court in Oshlack v Richmond River Council.[1] The second to ninth defendants (‘the defendants’) resist that application and submit that costs should follow the event. I note that the first defendant did not participate in the hearing of the separate question and no party sought an order for costs in relation to him.
[1](1998) 193 CLR 72 (‘Oshlack’).
The starting point is that the power to award costs pursuant to s 24(1) of the Supreme Court Act 1986 is discretionary. However, the usual rule is that costs follow the event, and departure from the usual rule is only warranted in special circumstances.[2]
[2]See, eg, Kheirs Financial Services Pty Ltd v Aussie Home Loans Pty Ltd (2010) 31 VR 46, 50 [15], citing Donald Campbell & Co Ltd v Pollak [1927] AC 732, 809, 811.
The plaintiff submitted that the following factors weigh in favour of the Court departing from the usual rule in this case and making no order as to costs:
(a) First, the proceeding raised an important legal question, namely whether this Court has jurisdiction to hear and determine applications under s 59 of the 1985 Act.
(b) Second, the question raised in the proceeding has significance beyond the circumstances of the plaintiff, resolving the jurisdictional issue for all persons seeking to re-open an inquest under the 1985 Act. Further, because the separate question is connected to the coronial process, the significance of the jurisdictional question answered by the Court extends beyond individuals or a class of individuals.
(c) Third, the plaintiff conducted the proceeding in a way which allowed for it to be resolved efficiently and cost-effectively by way of the jurisdictional question being identified and determined at an early stage.
(d) Fourth, the separate question is connected to the important public functions of the Coroner. Given that the coronial process is public in nature, the proceeding was not primarily concerned with the vindication of individual rights of the moving party but rather with issues of more general importance and application.
The defendants resisted the submission that the Court should depart from the usual rule. In written submissions, the defendants addressed each of the four matters relied on by the plaintiff as follows:
(a) As to the plaintiff’s first point, the defendants submitted that the legal question that lay at the heart of the proceeding had already been determined by the judgment of this Court in Helmer v The State Coroner of Victoria.[3] In that regard, it is noted that, in the reasons for judgment on the separate question, I found that the jurisdictional question had been decided, and correctly so, by Habersberger J in Helmer.[4] The defendants further submitted that the jurisdictional question had arisen only as a side effect of the plaintiff seeking to quash particular findings made in a particular inquest.
[3][2011] VSC 25.
[4]Spear v Hallenstein [2018] VSC 169 [111]–[119].
(b) In relation to the second point raised by the plaintiff, the defendants argued that, to the extent the answer to the question given by the Court had significance beyond the present proceeding, that was a function of stare decisis and is not unusual or exceptional.
(c) In terms of the plaintiff’s approach to the proceeding, the defendants contended that the early identification and determination of the jurisdictional question did not bear on the question of costs, although it had the advantage of reducing the quantum of costs payable by the plaintiff by reason of the efficient conduct of the proceeding.
(d) Finally, the defendants argued that the fact that the Court had held that there was an absence of jurisdiction distinguished this case from those cases in which a party seeks to invoke a special jurisdiction in which the public may participate for the achievement of a broader public interest.
The plaintiff relied on the judgment of the High Court in Oshlack to establish that there are special circumstances for departing from the usual rule. That case arose out of an application made under s 123 of the Environmental Planning and Assessment Act 1979 (NSW) which challenged a decision by a local council in its planning sphere.
The majority of the High Court held that the trial judge had not taken account of irrelevant considerations in refusing to make an order for costs in favour of the successful council.[5] The trial judge, in exercising his discretion as to costs, had taken into account considerations including (a) the policy of the legislation; (b) the fact that the applicant had no personal interest in the proceeding but was seeking a declaration that the council’s consent to development of land which would threaten natural habitat was void; and (c) the fact that the litigation raised issues about the interpretation and administration of environmental legislation.
[5]Oshlack (1998) 193 CLR 72, 91 [49]–[50] (Gaudron and Gummow JJ), 123–7 [135]–[144] (Kirby J).
Oshlack does not stand for the proposition that the presence of some public interest, broader than the interest of the individual party bringing the proceeding, justifies departure from the usual rule.[6] In some proceedings, it may be appropriate that there be a special order as to costs where the proceeding concerns broad issues of public administration.[7] That may be particularly so where the parties to the proceeding include a government agency charged with the overall administration of an Act which has as its focus public interests.
[6]Ibid 84 [30]–[31], 90–1 [48]–[49] (Gaudron and Gummow JJ), 122–3 [134] (Kirby J). See also South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411, 412 (Kirby J); Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 237–40 [18]–[22] (Black CJ and French J); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91, 94 [13]; Hoskin v Greater Bendigo City Council [2015] VSCA 370 [12].
[7]See Oshlack (1998) 193 CLR 72, 123–4 [136] (Kirby J), citing R v Archbishop of Canterbury [1902] KB 503, 572 and Latoudis v Casey (1990) 170 CLR 534, 550.
The proceeding did have an important public aspect and, as was noted in the reasons for judgment on the separate question, the coroner performs a very important public function. That is particularly so where the inquest relates to a death that involved members of the police force.
In the present case, I am not satisfied that there should be a departure from the usual rule. The plaintiff brought this proceeding to quash a finding in relation to a particular inquest in which she had a personal interest. The question of construction was determined by the separate question and did not depend upon that personal interest. Nevertheless, the proceeding as a whole had a private dimension.
Further, it is to my mind important that the defendants are private citizens and were not joined to the proceeding in a public or official capacity. I recognise that they were all members of Victoria Police and that the issue in the inquest related to matters that arose in the course of duty. However, that does not diminish the fact that the defendants were representing their own interests in the proceeding. The fact that the issue in dispute had been determined adversely to the plaintiff in the decision of Helmer is also part of the overall circumstances relevant to the exercise of discretion.
In the circumstances of this case, I am persuaded that it is appropriate that costs follow the event.
Accordingly, I shall order that the proceeding be dismissed and that the plaintiff pay the second to ninth defendants’ costs of the separate question and of the proceeding, including any reserved costs.
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