Supreme Court Of Victoria Court Of Appeal , S Eapci 2024 0082 and John Myers v Victorian Civil And Administrative Tribunal & Ors (According To the Attached Schedule) [No 2]

Case •

[2024] VSCA 277

•

21 November 2024

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCI 2024 0082
JOHN MYERS Applicant
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ORS (ACCORDING TO THE ATTACHED SCHEDULE) [NO 2] Respondents

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JUDGES: Walker JA
WHERE HELD: Melbourne
DATE OF HEARING: Determined on the papers 
DATE OF JUDGMENT: 21 November 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 277
JUDGMENT APPEALED FROM: [2024] VSC 412 (Watson J)

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PRACTICE AND PROCEDURE – Costs – Whether circumstances justify departure from usual rule that successful party is entitled to costs – No circumstances justifying departure – Applicant’s financial position insufficient – Application for leave to appeal did not concern ‘public interest’ – Whether order sought by one party for costs on gross sum basis appropriate – Order appropriate to avoid further expense and delay.

Northern Territory v Sangare (2019) 265 CLR 164; Board of Examiners v XY [2006] VSCA 190; Chopra v Department of Education and Training [No 2] [2021] VSCA 112; Anderson v Stonnington City Council [No 2] [2020] VSCA 238; Giurina v Greater Geelong City Council [2021] VSCA 341; Bechara v Bates [No 2] [2018] FCA 583, applied; Oshlack v Richmond River Council (1998) 193 CLR 72; Cumming v Minister for Planning [No 2] [2020] VSCA 231, referred to.

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Counsel
Applicant: In person
First Respondent: Not applicable
Second Respondent: Mr L McAuliffe
Third Respondent: Ms R Walsh
Solicitors
Applicant: Not applicable
First Respondent: Not applicable
Second Respondent:  Office of the Victorian Information Commissioner
Third Respondent: Maddocks

WALKER JA:

  1. The applicant, Mr Myers, filed an application for leave to appeal against a decision of Watson J. I dismissed that application on 17 September 2024. I also determined that the application was ‘totally without merit’ pursuant to s 14D(3) of the Supreme Court Act 1986.[1]

    [1]Myers v VCAT [2024] VSCA 206 (‘Principal Reasons’).

  2. On that date, I also made orders that the parties file and serve any submissions they wished to make about the costs of the application for leave to appeal. The applicant, the second respondent and the third respondent each filed submissions in accordance with that order.[2]  

    [2]The first respondent did not take an active role in the proceeding and did not make any submissions as to costs.

  3. The second respondent sought an order that the applicant pay the second respondent’s costs of and incidental to the application for leave to appeal on a gross sum basis, that sum being $1,727.27.[3] It submitted that it was entitled to an award of costs given the Court’s refusal of the application for leave to appeal and the Court’s determination that the application was ‘totally without merit’. It also submitted that a gross sum was appropriate ‘to avoid the expense, delay, and aggravation involved in protracted litigation arising out of taxation’. It submitted that an order for a gross sum would best promote the overarching objectives of the Civil Procedure Act 2010, having regard particularly to the protracted nature of the proceedings to date. The second respondent sought only to recover counsel’s costs, and did not seek to recover the costs of the in-house legal practitioners who had acted for it.

    [3]The second respondent’s application was supported by the affidavit of Cara Louise O’Shanassy, sworn on 23 September 2024.

  4. The third respondent sought an order that the applicant pay its costs of and incidental to the application for leave to appeal on the standard basis. It submitted that it was entitled to an award of costs given the Court’s refusal of the application for leave to appeal and the Court’s determination that the application was ‘totally without merit’. The third respondent further submitted that impecuniosity alone is not a sufficient reason to deny a successful party its costs, and that the fact that it is a government department is irrelevant to the costs award.

  5. The applicant conceded that an unsuccessful party is ordinarily required to pay the costs of a successful party. However, he submitted that no order should be made requiring him to pay costs in this case due to his financial position and dependence on a disability support pension. He referred also to his status as a self-represented litigant and the fact that the second and third respondents are government agencies. The applicant submitted further that the proceeding concerned a matter of public interest, and that he should therefore not be required to pay the other parties’ costs. Alternatively, should the Court determine that a costs order ought to be made, the applicant submitted that the appropriate order would either be that the costs of this application be costs in the ongoing proceeding before Watson J, or that the parties should bear their own costs in relation to the application.

Consideration

  1. This Court has a broad discretion to award costs pursuant to section 24(1) of the Supreme Court Act 1986. The ‘usual order as to costs’ is that costs will follow the event.[4] The usual rule may, of course, be departed from in the exercise of the Court’s discretion. As the High Court held in Oshlack v Richmond River Council, there is no absolute rule with respect to the exercise of the discretion.[5]

    [4]See, eg, Northern Territory v Sangare (2019) 265 CLR 164, 173 [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25 (citations omitted) (‘Sangare’):

    A guiding principle by reference to which the [costs] discretion is to be exercised — indeed, ‘one of the most, if not the most, important’ principle — is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party.

    [5]Oshlack v Richmond River Council (1998) 193 CLR 72, 88 [40] (Gaudron and Gummow JJ), 121 [134] (Kirby J); [1998] HCA 11 (‘Oshlack’).

  2. In the present case, none of the matters raised by the applicant justify departing from the usual rule.

  3. In relation to the contention that the proceeding concerned the ‘public interest’, I accept that this may provide a basis for departing from the usual rule[6] (although it does not require such departure). However, in the present case I do not accept the applicant’s submission that his application for leave to appeal was one that concerned the public interest. Fundamentally the application concerned the applicant’s personal desire to have a lay person[7] make oral submissions on his behalf at trial. In my view that did not raise an issue of public interest that would justify a decision not to award the successful parties their costs. For completeness, nor do I consider that the underlying subject matter of the proceeding before Watson J concerns the public interest. Rather, while the litigation involves the operation of the Freedom of Information Act1982, the applicant seeks to advance a private interest in access to documents.[8]

    [6]See Oshlack (1998) 193 CLR 72, 90–1 [48]–[49] (Gaudron and Gummow JJ), 122 [134] (Kirby J); [1998] HCA 11; Cumming v Minister for Planning [No 2] [2020] VSCA 231, [9] (Tate, McLeish and Osborn JJA).

    [7]That is, a person who is not entitled to practise as a lawyer, which may include a person who is legally qualified but does not have a practising certificate and thus has no right of appearance (often referred to as a ‘McKenzie friend’). In the present case the applicant sought to have a person who has no legal qualifications make oral submissions on his behalf.

    [8]See Chopra v Department of Education and Training [No 2] [2021] VSCA 112, [27] (McLeish JA); Anderson v Stonnington City Council [No 2] [2020] VSCA 238, [6]–[7] (Maxwell P, Tate and McLeish JJA).

  4. In relation to the applicant’s reliance on his financial position and his dependence on a disability support pension, I do not consider those matters sufficient to justify a departure from the usual rule in the present case. Absent exceptional circumstances, the financial position of a party is not a matter relevant to the exercise of the costs discretion.[9] The applicant did not demonstrate any exceptional circumstances.

    [9]Board of Examiners v XY [2006] VSCA 190, [33]–[34] (Chernov JA, Nettle JA agreeing at [39]–[43], Neave JA agreeing at [44]), referred to with approval in Sangare (2019) 265 CLR 164, 174 [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25. In the latter case the High Court observed as follows:

    The successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.

  5. In relation to the applicant’s status as a self-represented litigant and the fact that the second and third respondents are government agencies, these matters have no relevance to the exercise of the costs discretion[10] (putting to one side the potential for matters of public interest to arise in cases involving government agencies, which I have dealt with above).

    [10]Sangare (2019) 265 CLR 164, 174 [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25.

The appropriate form of orders

  1. I do not consider that the costs of the applicant’s application for leave to appeal ought to be costs in the ongoing proceeding before Watson J. The application was made and has been determined, and it is appropriate that the question of costs be determined by this Court, not that they be reserved for future resolution by the trial judge.

  2. The third respondent sought an order that the applicant pay its costs of and incidental to the application on the standard basis. For the reasons explained above, I consider that it is appropriate to make that order.   

  3. In contrast, the second respondent sought an order for costs in a gross sum. As this Court observed in Giurina v Greater Geelong City Council:

    The Court may award a gross sum of costs in order to avoid the expense, delay, and aggravation involved in protracted litigation arising out of taxation. This involves a broad brush approach, without the rigour and precision of the process of taxation, however, the Court should be confident that the approach taken to the estimate of costs is logical, fair and reasonable.[11]

    [11]Giurina v Greater Geelong City Council [2021] VSCA 341, [16] (Kennedy, Walker JJA and Macaulay AJA) (citations omitted) (‘Giurina’).

  4. I am satisfied that in the present case it is appropriate to make a costs order on a gross sum basis as sought by the second respondent. Such an order will avoid further expense and delay in relation to the costs of the application for leave to appeal which, as I held in my Principal Reasons, was entirely lacking in merit.[12] 

    [12]See Giurina [2021] VSCA 341, [17] (Kennedy, Walker JJA and Macaulay AJA) (citations omitted); Bechara v Bates [No 2] [2018] FCA 583, [4] (Perry J).

  5. As to quantum, the second respondent sought an order for costs in the sum of $1,727.27. I am satisfied that this amount is logical, fair and reasonable. It relates only to counsel’s fees (exclusive of GST) and was supported by an affidavit that exhibited the relevant invoices. It is, on any view, a modest sum for the resolution of an application for leave to appeal in this Court and in that sense is generous to the applicant.

Conclusion

  1. For these reasons, the orders sought by the second and third respondents should be made, and I will make the following orders:

    (a)The applicant pay the second respondent’s costs of and incidental to the application for leave to appeal in the amount of $1,727.27.

    (b)The applicant pay the third respondent’s costs of and incidental to the application for leave to appeal on the standard basis.

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SCHEDULE OF PARTIES

JOHN MYERS First applicant
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL First respondent
OFFICE OF THE VICTORIAN INFORMATION COMMISSIONER Second respondent
DEPARTMENT OF EDUCATION Third respondent

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