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Spear v Hallenstein (No 2)

Spear v Hallenstein (No 2)

Case [2018] VSC 207 2 May 2018

Costs

Jurisdiction

Limitation Periods

Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spear v Hallenstein (No 2)

Details

AGLC: Spear v Hallenstein (No 2) [2018] VSC 207
Case: [2018] VSC 207
Decision Date: 2 May 2018

CaseChat Overview and Summary

Spear and Hallenstein came before the court in a dispute concerning the awarding of costs. The plaintiff sought a determination on the costs incurred during the case, which raised a jurisdictional question. The Supreme Court was tasked with deciding whether it had the jurisdiction to determine the plaintiff's application for costs.

The legal issues before the court involved whether the Supreme Court had the jurisdiction to make a decision on the plaintiff's application for costs. The court also needed to determine if there was any basis for departing from the usual rule as to costs, which is established in the case of Oshlack v Richmond River Council. The court had to consider whether the application raised a question of law that required a judicial determination, which would give the court jurisdiction to decide the matter.

The court found that the plaintiff's application did not raise a question of law that required a judicial determination. Therefore, the court did not have the jurisdiction to determine the application. The court further held that there was no basis for departing from the usual rule as to costs, as established in Oshlack v Richmond River Council. The court dismissed the plaintiff's application for costs.

The court ordered that the plaintiff pay the defendant's costs of the application, in accordance with the usual rule as to costs.

Orders