State of Victoria v Kozarov (No 2)

[2020] VSCA 316

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0032

STATE OF VICTORIA	Appellant
v
ZAGI KOZAROV (NO 2)	Respondent

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JUDGES:	BEACH, KAYE JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	7 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 316

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PRACTICE AND PROCEDURE – Costs – Whether appropriate to apportion costs – Intertwinement of issues – Not appropriate to apportion costs – Whether issue-based costs order should be made – Issue-based costs order not appropriate – Appropriate for costs to follow the event.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance	Russell Kennedy Solicitors
For the Respondent	No appearance	Bowman Knox

BEACH JA
KAYE JA
MACAULAY AJA:

1. On 24 November 2020, this Court made orders granting the defendant leave to appeal, allowing the appeal on ground 2, setting aside the orders made by the primary judge and, in their place, ordering that there be judgment for the defendant.[1]  In the order, in Other Matters, we said that in the event that a consent order on costs was not filed by 4 pm on 26 November 2020, the Court would determine costs issues on the papers based on the written submissions of the parties filed in accordance with paragraphs [4] and [5] of the order.  Paragraphs [4] and [5] of the order of 24 November 2020 were as follows:

4The appellant file and serve submissions as to the costs of the appeal and the proceeding at first instance, limited to three pages, by 4 pm on 30 November 2020.

5The respondent file and serve submissions as to the costs of the appeal and the proceeding at first instance, limited to three pages, by 4 pm on 4 December 2020.

[1]State of Victoria v Kozarov [2020] VSCA 301.

1. The parties were not able to agree on appropriate orders as to costs.  On 30 November 2020, the appellant (defendant) filed submissions in which it sought the costs of the proceeding below and the appeal to be paid by the respondent (plaintiff) on a standard basis.

1. On 1 December 2020, the solicitors for the respondent sent a letter to the Court, enclosing a letter they had written to the solicitors for the appellant on 2 July 2020, and a letter the solicitors for the appellant had written to them on 8 July 2020.  In essence, the respondent contended that she should not have to pay the appellant’s costs of the appeal referable to ground 1, and that the appellant’s costs should be ‘limited to payment of costs associated with the preparation of ground 2 only’.

1. On 4 December 2020, the solicitors for the respondent sent two further letters to the Court:  the first one at 4.47 pm;  and the second one at 4.48 pm.  In the 4.47 pm letter, the solicitors for the respondent sought to withdraw their letter of 1 December 2020.  In the 4.48 pm letter, the respondent made the following submissions:

1On the Court’s own motion, it has already made orders in relation to the trial.  In our view, the only issue the respondent has been requested to address is the costs associated with the appeal.

2The respondent does not cavil with the law as articulated by the appellant.  The Court has [a] discretion as to costs.

3The respondent was successful with respect to ground 1;  and ground 1 occupied the bulk of the trial and appeal.

4The respondent respectfully submits that she ought to be entitled to the bulk of her costs associated with the prosecution and defence of ground 1 of the appeal.

1. The assertion in the 4.48 pm letter that the only issue the respondent has been requested to address is the costs associated with the appeal is simply wrong.  By paragraphs [4] and [5] of our order of 24 November 2020, the parties were required to address both ‘the costs of the appeal and the proceeding at first instance’.

1. The issues raised by grounds 1 and 2 were, as our primary reasons show, intertwined.  In our view, there is no basis for apportioning costs or making some other issue-based costs order, either in respect of the trial or the appeal.  Nor is there any basis for awarding any costs to the respondent as sought in the 4.48 pm letter.

1. The appellant succeeded on appeal and, as a consequence, succeeded at trial.  It was not unreasonable for the defendant to dispute both foreseeability and causation at trial or on appeal.  In our view, costs should follow the event in respect of the proceeding at first instance and the appeal.

1. We will make the following orders:

(1)The respondent is to pay the appellant’s costs of the appeal, including any reserved costs, on a standard basis, to be assessed by the Costs Court if not agreed.

(2)The respondent is to pay the appellant’s costs of Supreme Court Proceeding No S CI 2016 04411, including any reserved costs, on a standard basis, to be assessed by the Costs Court if not agreed.

1. The respondent will be granted an indemnity certificate pursuant to s 4 of the Appeal Costs Act 1998. 

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