Swindells v Victoria - [2016] VSCA 77

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0018

ANDREW HYDE SWINDELLS	Applicant
v
STATE OF VICTORIA	First Respondent
and
PETER BATCHELOR	Second Respondent

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JUDGES:	WARREN CJ, TATE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 77
DECISION MAY BE CITED AS:	Swindells v Victoria (No 2) [2016] VSCA 77

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COSTS — Whether any special circumstances relevant to discretion as to costs — Whether respondents ought to have settled proceeding — Application for leave to appeal wholly unsuccessful — Impecunious applicant — Relevance of personal difficulties — No point of principle.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person.
For the Respondents	Ms R M Doyle SC with Ms D A Siemensma	Minter Ellison

WARREN CJ:
TATE JA:
SANTAMARIA JA:

On 16 February 2016, this Court delivered its substantive reasons in this proceeding[1] and made orders dismissing the application for leave to appeal.
[1]Swindells v Victoria [2016] VSCA 9.

The respondents sought their costs of the proceeding on a standard basis in accordance with the usual rule.[2]
[2]As the applicant was unable to be present upon the delivery of judgment, the Court made orders providing him with seven days in which to file written submissions in response to the respondents’ costs application. The applicant filed written submissions later that day.

In response, the applicant’s principal submission was that each party should bear its own costs of the proceeding.

In support of this submission, he argued that an adverse costs order would have an exacerbated effect on him in circumstances where his removal from the office of mining warden has already had a profound effect on his mental state, his family and his career prospects. He said that he had lost his reputation, and had applied unsuccessfully for over 2000 positions since his removal. His physical and mental health had suffered and he had commenced taking prescription medication. He found it difficult to provide financial and emotional support to his family, and his marriage had broken down. He contended that an adverse costs order would magnify these effects and unfairly impact his young children and his estranged wife. He said that he had no assets and no capacity to meet any costs order that might be made against him.

The applicant further contended that the respondents ought to have settled the litigation, both as a matter of business practice and because it was in his submission ‘the usual course of action’ in an employment termination case. In particular, he contended that the respondents ought to have accepted an offer he claims to have made when the Minister first raised concerns about his conduct as mining warden, whereby he offered to resign in return for a payment equivalent to the value of the remainder of his contract. No evidence of such an offer was put before the Court. The applicant submitted that the offer was unreasonably refused by the respondents.…

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.

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Details

Case: [2016] VSCA 77
Decision Date: 20 April 2016

CaseChat Overview and Summary

The matter of Swindells v Victoria came before the court, involving the applicant who sought leave to appeal a decision regarding costs. The applicant argued that there were special circumstances justifying a deviation from the usual costs order, specifically that the respondents should have settled the proceeding. The court was tasked with determining whether any exceptional circumstances existed that warranted a departure from the standard costs order, as well as whether the respondents' failure to settle the proceeding constituted such a circumstance.

The court examined the legal issues surrounding the applicant's request for leave to appeal. It assessed whether there were any special circumstances that would influence the exercise of the court's discretion over costs, particularly focusing on whether the respondents' failure to settle the proceeding should be considered an exceptional circumstance. The court also considered the applicant's personal circumstances and difficulties in determining whether these factors were relevant to the exercise of its discretion.

The court ruled that there were no special circumstances present that would justify a deviation from the usual costs order. It found that the applicant's personal difficulties, while unfortunate, did not constitute a relevant factor in the exercise of its discretion regarding costs. Additionally, the court determined that the respondents' failure to settle the proceeding did not amount to a point of principle or exceptional circumstance that would warrant a different costs order. Consequently, the application for leave to appeal was wholly unsuccessful.

The court concluded that the application for leave to appeal was dismissed, with no orders for costs. The court emphasised that the applicant's financial situation and personal difficulties, while unfortunate, did not create any special circumstances that would alter the usual costs order. The court also noted that the respondents' failure to settle the proceeding did not rise to the level of a point of principle or exceptional circumstance that would affect the costs order.

Orders