Thompson v Racing Victoria Ltd (No 2) - [2020] VSC 684

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01730

JODY THOMPSON	Appellant
v
RACING VICTORIA LIMITED (ACN 096 917 930) (No 2)	Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	Not applicable. Matter determined on the papers. Written submissions filed 22 September 2020 and 25 September 2020
DATE OF JUDGMENT:	16 October 2020
CASE MAY BE CITED AS:	Thompson v Racing Victoria Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 684

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COSTS – Successful appeal from Victorian Civil and Administrative Tribunal (‘VCAT’) in occupational disciplinary matter that commenced before Racing Appeals and Disciplinary Board (‘RADB’) – General principle that costs follow the event – ‘Late amendment’ principle – Appellant’s late amendments not increasing or wasting respondent’s costs – No discount on that basis – Other aspects of appellant’s conduct of proceeding warranting small discount – Respondent to pay 90% of the appellant’s costs of the proceeding but excluding costs of misconceived interlocutory application – Costs of proceedings below in VCAT and RADB – No proper claim for such costs – Inappropriate in this case for Supreme Court to order payment of VCAT costs or to remit the question of VCAT costs to VCAT – Doubts as to power of RADB, VCAT or Supreme Court to award costs in respect of RADB proceeding – No order as to costs below.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Not applicable	-
For the Defendant	Not applicable	-

HIS HONOUR:

Introduction and summary

These reasons deal with the question of costs in this matter, following my judgment and orders of 8 September 2020.[1]
[1]Thompson v Racing Victoria Ltd [2020] VSC 574 (‘Thompson v Racing Victoria (No 1)’).

The appellant, Jody Thompson, a professional racehorse trainer, achieved a wholly successful outcome in this appeal from the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), including by way of achieving the setting aside of VCAT’s decision that would have disqualified her from participating in racing for a least three months, and by way of achieving a substituted final order to the effect that the two charges in question, being charges of ‘serious offences’ under the Rules of Racing which had been brought against her by the respondent, Racing Victoria Ltd (‘RVL’), be dismissed. In civil litigation in the courts, costs usually follow the event, i.e. the outcome of the case, even where the successful party has not succeeded on all heads of claim or all issues.[2] As it happens, putting aside one matter (being a ruling I made in the running in connection with a certain ground of appeal relating only to penalty[3]), Ms Thompson was entirely successful not only in relation to the ultimate outcome but also on all of the issues that were actually decided in my reasons for judgment. Accordingly, in those reasons I expressed the provisional view…

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: [2020] VSC 684
Decision Date: 16 October 2020

CaseChat Overview and Summary

In Thompson v Racing Victoria Ltd (No 2), the appellant, Mr Thompson, appealed against a decision of the Victorian Civil and Administrative Tribunal (VCAT), which had itself overturned a decision of the Racing Appeals and Disciplinary Board (RADB). The dispute involved occupational disciplinary matters pertaining to Mr Thompson's conduct as a racing participant. The Supreme Court of Victoria was tasked with assessing the costs implications of the appeal process, including the costs of the proceedings in VCAT and RADB.

The primary legal issues before the court were the appropriate allocation of costs between the parties in light of the appellant's late amendments and his overall conduct of the proceedings. The court had to determine whether the late amendments warranted a reduction in costs and whether the appellant's conduct in other respects justified a discount on costs. Additionally, the court examined whether the respondent should be required to pay a portion of the appellant's costs and whether there was a basis for the respondent to be ordered to pay costs incurred in the proceedings before VCAT and RADB.

The court found that the appellant's late amendments did not result in additional or wasted costs for the respondent and thus did not warrant a discount on that basis. However, other aspects of the appellant's conduct during the proceedings did justify a small discount on costs. The court ordered the respondent to pay 90% of the appellant's costs of the appeal, excluding the costs of an interlocutory application that was deemed misconceived. The court did not make any order regarding the costs of the proceedings in VCAT and RADB, given the uncertainties surrounding the power of those tribunals to award costs and the inappropriateness of the Supreme Court intervening in that matter.

There was no order as to the costs incurred in the proceedings below in VCAT and RADB. The court concluded that it was inappropriate to order the respondent to pay the appellant's costs of the proceedings in VCAT or to remit the question of those costs back to VCAT for determination. Furthermore, there were doubts as to whether the RADB, VCAT, or the Supreme Court had the authority to award costs in respect of the RADB proceedings.

Orders