Thompson v Racing Victoria Ltd (No 2)
[2020] VSC 684
•16 October 2020
| 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. |
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 that RVL should pay Ms Thompson’s costs of the proceeding in this Court (including reserved costs) on the standard basis.[4] I directed that if either party wished to contend that some different order as to costs should be made, then, in default of agreement, that party should file and serve a written submission as to costs within 14 days and the opposite party should file and serve a reply within 14 days thereafter.[5]
[2]Oshlack v Richmond River Council (1998) 193 CLR 72, 97–98 [67]-[70] (McHugh J); 124 [137] (Kirby J); Chen v Chan [2009] VSCA 233 [10]; Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] (2015) ALR 192; Paragreen v Lim Group Holdings Pty Ltd (No. 2) [2020] VSCA 97 [5]; Australian Competition and Consumer Commission v Pacific National Pty Limited (No. 2) [2020] FCAFC 98 [5].
[3]See further below.
[4]Thompson v Racing Victoria (No 1) (n 1) [54].
[5]Ibid.
Ms Thompson did not, within the 14 day period, make a submission seeking a different order as to costs. However, RVL did. Ms Thompson subsequently filed a submission which, in the main,[6] was in the nature of a reply to RVL’s submission.
[6]Ms Thompson’s submission also purported to raise a claim for the costs of the proceedings at VCAT and at the Racing Appeals and Disciplinary Board (see below).
RVL’s principal contention is that Ms Thompson’s success was wholly attributable to ‘late amendments’ to her grounds of appeal and that RVL’s costs were unduly increased and/or partly wasted as a result of that lateness. RVL also says that certain other procedural steps taken, or omitted, by Ms Thompson in the litigation led or contributed to an undue increase, or partial waste, of the costs incurred by RVL. Ms Thompson denies that her success was wholly attributable to the ‘late amendments’. As will be seen, I agree with Ms Thompson in that respect. Only in part did the late amendments contribute to her success, and then only in a very limited sense. The ‘late amendments’, as properly identified, related entirely to the proper interpretation of the relevant Rules of Racing, and, even then, related only to the first of the two charges against Ms Thompson. Further, it should have been obvious to RVL, as a normal risk of litigation, that the Court itself was under a duty to adopt what it considered to be the proper interpretation of the relevant Rules.[7] Ms Thompson also says that, in any event, RVL has not justified or substantiated its claim of increased or wasted costs, whether in relation to the late amendment point or otherwise. I largely agree with Ms Thompson in that regard too, but some minor reductions to her costs as claimed are nevertheless warranted because of deficiencies in the conduct of her case, as I will explain in due course.
[7]Thompson v Racing Victoria (No 1) (n 1) [11].
Procedural chronology and related findings
At the risk of repeating some material contained in my principal judgment, I set out the following procedural chronology, together with some related findings.
VCAT’s final decision was given on 5 April 2019. The disqualification period was expressed to commence on 13 April 2019. Without a further stay from VCAT, Ms Thompson needed to come to this Court fairly quickly. Her notice of appeal was filed on 18 April 2019, together with a summons for directions. The notice of appeal included 11 separate paragraphs under the heading ‘Questions of law’ and 11 corresponding paragraphs under the heading ‘The grounds relied upon are’. The first question and ground ‘pair’ related to liability on the first charge. The second question and ground ‘pair’ related to liability on the second charge. The other nine ‘pairs’ related to penalty alone.
Ms Thompson had sworn an affidavit on 8 April 2019, and it was filed on 24 April 2019. It exhibited the VCAT decisions and the prior decisions of the Racing Appeals and Disciplinary Board (‘RADB’). Otherwise, it appeared to be directed principally to the obtaining of a stay, in that it dealt mainly with Ms Thompson’s character and standing in the racing industry and the consequences of disqualification for her and for her father. It did not exhibit any transcripts of the VCAT hearings (which may well have been unavailable at that early stage) or any of the VCAT exhibits tendered by RVL.
Consent directions were given on the papers by Judicial Registrar Clayton on 29 April 2019. They were largely in the standard JRA List form. They included a stay of the VCAT orders until further order. A relatively early hearing date of 15 August 2019 was fixed. Ms Thompson was to file and serve any further affidavits, including, where applicable, an affidavit exhibiting the transcript of any relevant hearing, upon which she intended to rely, on or before 20 May 2019. RVL was to file and serve any affidavit on which it intended to rely on or before 3 June 2019. Ms Thompson was to file and serve a written outline of submissions and serve a list of authorities on or before 10 June 2019. RVL was to file and serve a written outline of submissions in response and serve a list of authorities on or before 1 July 2019. Ms Thompson was to file and serve a written outline of submissions in reply and serve any additions to the list of authorities on or before 18 July 2019. Ms Thompson was to file and serve a combined list of authorities and a court book on or before 1 August 2019. Liberty to apply was reserved.
Ms Thompson did not file or serve any further affidavit on or before 20 May 2019. Contrary to the directions, she did not file or serve written submissions or a list of authorities on or before 10 June 2020. There is nothing to indicate that she has ever given any explanation to the Court or to RVL for this non-compliance. On the other hand, RVL did not apply to the Court, either pursuant to the liberty to apply reserved by Judicial Registrar Clayton or otherwise, for an order requiring Ms Thompson to file further material before RVL was called upon to respond. Instead, on 1 July 2019, RVL filed an outline of submissions comprising 21 pages, 121 paragraphs and 72 footnotes. Under the heading ‘Basis on which these submissions have been prepared’, RVL noted the procedural steps that Ms Thompson had actually taken to that point, and noted that, notwithstanding Judicial Registrar Clayton’s directions, Ms Thompson had not served either any further affidavits or an outline of submissions. RVL said that its submissions had therefore been prepared on the basis that Ms Thompson intended to rely only on her 8 April 2019 affidavit and on the grounds set out in the notice of appeal. RVL did not, before or at that time, or subsequently, file any affidavit in opposition to Ms Thompson’s affidavit material.
On 23 July 2019, without previously (or subsequently) seeking any amendment to the timetable, Ms Thompson filed an outline of submissions of 12 pages. Once again, it seems that no explanation for the lateness of this outline was offered by Ms Thompson. The outline included arguments, some quite detailed, in support of the grounds of appeal. Notably, it included an argument in support of ground 2 (which ground raised the proper construction of AR175(o)(iii) on which the second charge was based) that corresponded closely with the construction of that provision later adopted by the Court in holding that the second charge could not be sustained. On the other hand, Ms Thompson’s outline of submissions, somewhat unhelpfully, made no express reference to any part of RVL’s submissions of 1 July 2019.
On 24 July 2019, Ms Thompson filed and served a notice to produce. It purported to require RVL to produce for inspection at the hearing a ‘disciplinary file’ of RVL relating to a named individual said to have been accused by RVL, in the past, of failures in connection with nutrition and/or veterinary care for his horses, and another ‘disciplinary file’ of a corresponding kind relating to a different individual. Apparently, the notice to produce was purportedly based on Ms Thompson’s assertion in her eleventh question of law/ground of appeal that VCAT should have required RVL to disclose ‘the facts’ of the cases of the two named individuals. The suggestion was, apparently, that the revelation of those ‘facts’ might have assisted Ms Thompson in preparing her submissions on penalty, by way of supplying a comparison with those other cases. However, neither case had actually been prosecuted before the RADB or VCAT.
On 5 August 2019, RVL’s solicitors wrote a detailed letter to Ms Thompson’s solicitors objecting to the notice to produce. RVL asserted that, before VCAT, counsel for Ms Thompson had only referred to the cases of the two individuals in a passing way and had not demanded that the files be obtained or produced. RVL further asserted that, in any event, there was no legitimate forensic purpose for the notice to produce in the context of the proceeding in this Court under s 148 of the VCAT Act. On the same day, RVL issued a summons, pursuant to Rule 35.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), returnable at the trial, for an order that RVL was not required to produce any document in response to the notice to produce. The summons was supported by an affidavit of a solicitor for RVL which exhibited the letter of 5 August 2019. At the hearing, counsel for Ms Thompson sought to press the notice to produce but I ruled that RVL’s objections were sound and declined to order that the material in question be produced.[8] The upshot of my ruling was that ground 11 was bound to fail for want of evidentiary support. It was a misconceived ground in any event. As indicated above, this proved to be of no consequence for the success of the appeal, but, in my view, Ms Thompson should receive no costs in relation to the notice to produce and some allowance against her other costs should be made to compensate RVL for the costs to which it was put on this account.
[8]Transcript of Proceedings, Thompson v Racing Victoria Ltd (Supreme Court of Victoria, S ECI 2019 01730, Cavanough J, 15 August 2019) 1, 69-71.
On Monday 12 August 2019, my Associate emailed the legal practitioners on both sides inviting them to consider, and to be prepared to make submissions on, seven stated questions of a legal nature, whether or not those questions were covered by the notice of appeal as it then stood. The first question invited submissions as to whether the principle of legality and/or the principle of strict construction of penal provisions had relevance for interpreting the Rules of Racing. The second to fourth questions related to the proper interpretation of the words ‘to provide proper and sufficient nutrition for a horse’ in AR175(o)(iv) of the Rules of Racing. The fifth to seventh questions related to the proper interpretation of the expression ‘veterinary treatment’ in AR175(o)(iii). Later the same day, my Associate emailed the practitioners again, drawing their attention to additional authorities in relation to the first question raised. More generally, the email referred the practitioners to certain statutory provisions relating to the welfare of animals[9] and to a particular journal article,[10] and the practitioners were invited to be prepared to advance such submissions as they may be advised in relation to any relevant comparison with AR175(o).
[9]Prevention of Cruelty to Animals Act 1986 (Vic) esp ss 9(1)(f) and (i).
[10]Steven White, ‘Standards and Standard-Setting in Companion Animal Protection’ (2016) 38(4) Sydney Law Review 463, esp the section headed ‘Duty of Care’.
On Tuesday 13 August 2019, Ms Thompson filed and served a document entitled ‘further outline of submissions’ which responded to the Court’s emails of the previous day. First, Ms Thompson adopted, in effect, the proposition that the principle of legality and the principle of strict construction of penal provisions (as referred to by Bell J in Riley v Racing Victoria Ltd[11]) were applicable to the interpretation of the Rules of Racing. It will be recalled that, in the end, I did not find it necessary to rule on that question in my substantive judgment.[12] Second, Ms Thompson adopted, in effect, the proposition that in AR175(o)(iv) the word ‘nutrition’ is used in the sense of food or nutriment, not in the sense of the action or process of supplying or receiving nourishment; and Ms Thompson submitted that, applying the proper interpretation of the Rule, the first charge could not be made out on the (uncontroversial) facts as found by VCAT. As indicated in my substantive judgment,[13] this submission was not covered by the notice of appeal as originally filed. However, as is also noted there, Ms Thompson’s counsel had put the point to VCAT, but VCAT had omitted to deal with it.[14] Third, Ms Thompson submitted that veterinary ‘treatment’ was to be distinguished from veterinary assessment, testing and advice, and that, again, it was not open to VCAT, on its own findings of fact, to conclude that the second charge had been proven once the proper interpretation of AR175(o)(iii) was applied. Contrary to RVL’s present contentions, this was not a new point. It was in substance covered by question of law/ground 2 as set out in the notice of appeal as originally filed. The Court referred to it in the emails of 12 August 2019 in order to highlight to the parties that it was a point as to which the Court was particularly interested to hear submissions.
[11][2015] VSC 527 esp [32].
[12]Thompson v Racing Victoria (No 1) (n 1) [51].
[13]Ibid [12].
[14]Ibid [12], [27].
What happened next is set out in paragraphs 13 and 14 of my principal judgment, as follows (omitting footnotes):
13On the day before the hearing, RVL filed a document entitled ‘Written Outline of Reply Submissions’. It was 16 pages long, comprising 90 paragraphs and 69 footnotes. It addressed in detail all of the questions which had been raised by the Court, together with the related points sought to be relied upon by Ms Thompson in her supplementary written submissions. It also addressed written submissions previously filed and served by Ms Thompson.
14At the hearing, counsel for RVL formally opposed any application by Ms Thompson to raise anything not covered by her notice of appeal. However, counsel acknowledged that he was ready to deal with all of the relevant points; he expressly declined to seek an adjournment (though reserving his client’s position on costs); and he declined to insist that the notice of appeal be formally amended as a condition of the grant of leave to Ms Thompson to rely upon the additional matters in question. Accordingly, I granted leave to Ms Thompson to proceed as though the notice of appeal had been formally amended so as to raise all of the matters that had been referred to in the prior written communications to the parties from the Court.
Consideration of RVL’s more detailed submissions on costs
In those circumstances, RVL seeks orders that:
(a) the parties bear their own costs of the proceeding in this Court, including reserved costs, up to the time when, on 13 August 2019, Ms Thompson filed her document entitled ‘further outline of submissions’ foreshadowing the ‘late amendments’;[15] and
(b) RVL pay Ms Thompson’s costs of the proceeding in this Court on the standard basis, including any reserved costs, on and from the time at which Ms Thompson filed that document.
[15]This was the document referred to in paragraph 14 above. It was also referred to in paragraph 12 of the principal judgment as a supplementary written submission of three pages.
RVL accepts that, ordinarily, costs follow the event. But it submits that costs are a matter in the Court’s discretion under s 24 of the Supreme Court Act 1986 (Vic), and that a court may, either wholly or partly, deny costs to a successful party who has placed upon the unsuccessful party an unjustified costs burden. As a matter of general principle, so much may be accepted.
RVL further submits that situations of the exceptional kind to which it refers may include a situation where a party’s success stems from a late amendment of its case, or where the successful party delayed raising a decisive point until the last minute. In such a situation, RVL submits, the costs incurred by the opponent are likely to have been increased (and indeed wasted) by those omissions. Accordingly, RVL submits, a situation of such a kind is a candidate to deprive the successful party of at least some of its costs.[16] Once again, this much may be accepted as a matter of general principle.
[16]Here, RVL cites G E Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018) [8.48].
RVL refers to Faraday v Rappaport (‘Faraday’),[17] a decision of White J of the Supreme Court of New South Wales. RVL submits that White J considered it appropriate to make a substantial discount of the costs ordered in favour of the plaintiff in that case, for reasons including that the claim on which the plaintiff succeeded was raised only by a late deemed amendment.[18] It is true that, in Faraday, White J took into account on costs the fact that the only matter on which the plaintiff succeeded was a claim raised by a late deemed amendment. However, that is not the situation here. In the present case, no new claim was raised at all. A ground was raised that was new to this proceeding but which had actually been raised below. The ground related to only one of the charges, not to both. Moreover, it was a ground relating to a point of construction of the Rules of Racing, being a point that was first raised in this proceeding by the Court itself, in accordance with established principle. As indicated above, RVL should have anticipated that the Court would raise the matter. As to the second charge, as is also mentioned above, the ground on which Ms Thompson succeeded was not new. It was included in her notice of appeal as originally filed and was the subject of detailed supporting submissions in her outline of 23 July 2019.
[17][2007] NSWSC 253 (‘Faraday’).
[18]Ibid [30]–[32].
Faraday was a very different case in other ways, too, as Ms Thompson points out in her reply costs submissions.[19] In Faraday there were three interrelated proceedings. Numerous matters apart from the late amendment were taken into account against the plaintiff on costs. Those matters included a finding that wrongful conduct of the plaintiff was the immediate precipitating factor for the litigation as a whole; that the length and difficulty of the litigation was extended by false denials and explanations on the part of the plaintiff; and that the parties had had mixed success in the litigation as a whole. There are no equivalents here.
[19]Appellant’s costs submissions dated 25 September 2020 [6].
As to the ‘late amendment’ principle more generally, RVL notes that in Faraday[20] White J cited the following sentence from the judgment of Stuart-Smith LJ in an English case, namely Beoco Ltd v Alfa Laval Co Ltd (‘Beoco’):[21]
As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment.
[20]Faraday (n 17) [26].
[21][1995] QB 137, 154 (‘Beoco’).
Even in that single sentence, Stuart-Smith LJ specifies two conditions for the application of the late amendment principle, namely that the amendment substantially alters the case the defendant has to meet and that the amendment is one without which the action will fail. Neither condition is met here. Given that it was to be expected that RVL would have to grapple with the proper construction of the Rules of Racing in any event, it is too much to say that the ‘amendment’ substantially altered the case that RVL had to meet. And it certainly cannot be said that, without the amendment, the appeal would have failed entirely. Ms Thompson would still have succeeded in relation to the second charge, at least. It was not necessary for me to consider or determine the merits of the ground originally advanced in relation to the first charge. Further, as found in my principal judgment, both penalties would have been set aside in any event because of VCAT’s legal error in increasing the penalty because Ms Thompson disputed the charges.
In Beoco, immediately after the sentence quoted above, Stuart-Smith LJ, with whom the other members of the English Court of Appeal agreed, added a further proviso to the ‘late amendment’ principle as follows:
There may, of course, be special reasons why this general rule should not be applied. An example of this is to be found in [a previous case] where the judge was satisfied that, even if the amendment had been made earlier, the action would have been vigorously resisted.
In Cellarit Pty Ltd v Cawarrah Holdings (No 2) (‘Cellarit’),[22] a case decided by the Court of Appeal of New South Wales in 2018 (11 years after Faraday), McColl JA, with whom Macfarlan JA and Leeming JA agreed, summarised the ‘late amendment principle’ by reference to Beoco, and did so consistently with the larger passage from Beoco that contains the further proviso, as follows:[23]
As a general rule, where a plaintiff makes a late amendment which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. The general rule may not apply, for example, where even if the amendment had been made earlier, the action would have been vigorously resisted.[24]
Like the other conditions, the further proviso is relevant here. That is because, based on what actually happened, I am satisfied that RVL would have vigorously resisted this appeal even if the subject matter of the so called ‘late amendment’ had been included in the notice of appeal from the outset. That is shown by the terms of RVL’s written submissions of 14 August 2019 and by the tenor of its oral submissions at the hearing.
[22][2018] NSWCA 266.
[23]Ibid [40] (McColl JA).
[24]Citing Beoco (n 21) 154.
I note that, in Cellarit, too, it was held that the conditions for application of the late amendment principle were not met. It was apparent from the pre-trial correspondence between the parties in Cellarit that they were in dispute about the relevant issue; the raising of that issue by the late amendment did not take the unsuccessful party by surprise; the relevant claims were not claims without which the successful party would have failed; the amendment could not be said to have ‘substantially’ altered the case which the unsuccessful party had to meet; and it was apparent that even if the relevant claims had been pleaded earlier, the opposite party would still have vigorously resisted them.[25] In my view, much the same applies here.
[25]In Cellarit (n 22) [41]–[49], McColl JA contrasted Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318. Compare also Ciaglia v Ciaglia [2010] NSWSC 723 [9] (White J).
RVL contends that Ms Thompson’s grounds of appeal as initially filed were not determined by the Court, and were not further mentioned in the Court’s reasons beyond setting out the background to Ms Thompson’s grounds of challenge as originally pleaded and their subsequent expansion. That is simply not so. Ground 2 as initially filed was upheld by the Court. As it happens, ground 11 was also dealt with. As mentioned above, ground 11 was, in substance, rejected in running. An adjustment in RVL’s favour in relation to costs will be made on that account.
RVL further says that the Court ‘recognised’ (although did not finally determine) that not all of Ms Thompson’s grounds of appeal as initially filed raised a question of law. That is an overstatement. I merely said that it ‘may be thought that not all of Ms Thompson’s points relating to the penalties imposed raised a question of law’.[26] I went on to say that the issue need not be pursued in any depth because, in any event, both charges fell to be dismissed on grounds that, in my opinion, ‘plainly’ did raise questions of law.[27] It was at least arguable that most, if not all, of Ms Thompson’s points as to penalty were admissible under s 148 of the VCAT Act, as is indicated by what was said in paragraph 46 of my principal judgment and in the cases there referred to, including especially Stirling v Legal Services Commissioner,[28] a case to which substantial reference was made in Ms Thompson’s written submissions of 23 July 2019.[29]
[26]Thompson v Racing Victoria (No 1) (n 1) [10].
[27]Ibid.
[28][2013] VSCA 374 [63]–[77].
[29]Ms Thompson’s outline of submissions dated 23 July 2019 [5], [19].
Next, RVL notes that it was said in the Court’s reasons that Ms Thompson had at least one good (original) ground going to penalty alone, but RVL submits that that ground was not a basis for the final order. Technically that may be so, but Ms Thompson did achieve a favourable ruling on that ground, which therefore assists her position on costs.
In all of the circumstances, I do not accept RVL’s submission that its costs were ‘increased and wasted’ by Ms Thompson’s omission to include in her original notice of appeal the ground that ultimately succeeded in relation to the first charge. In my view, RVL would still have addressed all of the other matters that were originally raised by Ms Thompson, as RVL actually did in the submissions which it filed. The fact that not all of those matters needed to be determined as part of the final judgment was an ordinary incident of litigation. Had Ms Thompson included the construction point relating to AR175(o)(iv) in her original notice of appeal, RVL would merely have had to include in its earlier submissions the responses which it ultimately did advance in its outline of 14 August 2019 and at the hearing. The hearing still took only a single day.
On the other hand, as already indicated, I would not allow Ms Thompson the costs of the notice to produce or any costs of responding to RVL’s summons challenging the notice to produce. I would also make some allowance against Ms Thompson’s general costs to compensate RVL on this account. Further, Ms Thompson’s non-compliance with Judicial Registrar Clayton’s directions plainly caused some inconvenience to RVL and led to some unavoidable duplication of effort on its part, particularly in relation to its written submissions.
Conclusion as to the costs of this proceeding
So, in relation to the costs of the proceeding in this Court, endeavouring to do justice to both sides, I would require RVL to pay 90 per cent of Ms Thompson’s costs of the proceeding, including reserved costs, and including the costs of the dispute about costs, but excluding any costs of or incidental to Ms Thompson’s notice to produce of 24 July 2019, to be taxed on the standard basis in default of agreement.
The costs below
That leaves one further matter. In the last sentence of Ms Thompson’s written costs submissions dated 25 September 2020, she submitted that RVL should be ordered to pay not only her costs of this proceeding, but also the costs of the RADB hearing and of the VCAT proceeding. In support she says, only, that she ‘should never have been charged’.
There are several reasons why it would be inappropriate for me to entertain, much less to grant, this claim.
No claim for the costs of the proceedings in the RADB or in VCAT was included in the notice of appeal. Ms Thompson simply claimed ‘costs’. In context, this should be taken to be a claim for the costs of this proceeding only.
Nor did Ms Thompson raise the matter of the RADB costs or VCAT costs in any of her pre-trial submissions or at the oral hearing.
In the paragraph of my principal judgment that relates to costs,[30] I referred expressly to the ‘costs of the proceeding in this Court (including any reserved costs)’, but I did not refer to the costs below. In my authenticated order, I reserved ‘costs’ meaning, in the usual way, the costs of this proceeding.
[30]Thompson v Racing Victoria (No 1) (n 1) [54].
Most importantly, in paragraph 54 of my principal judgment, I directed that if any party wished to contend that some order different from an order simply requiring RVL to pay Ms Thompson’s costs of this proceeding should be made, that party was to file and serve a written submission as to costs within 14 days. As mentioned above, Ms Thompson did not file any submission as to costs within 14 days. Had she done so, and had she then raised (for the first time) a claim for the costs of the proceedings below, RVL would have had an opportunity to respond to that claim. It would be quite inappropriate to entertain the claim now without RVL having had any opportunity to respond to it.
In passing, I note that, in any event, in relation to appeals under s 148 of the VCAT Act, it will only be in an unusual case that this Court would itself entertain, much less grant, a claim for costs incurred at VCAT.[31] Usually, this Court would remit the matter of costs incurred at VCAT to VCAT, to be dealt with as a matter of VCAT’s discretion under s 109 of the VCAT Act.[32] Ms Thompson’s costs submissions do not address this consideration at all. Nor do they include any express request (even in the alternative) for the question of the VCAT costs to be remitted to VCAT. I note again, as I did in paragraph 17 of my principal judgment, that, at the hearing, both sides said that if I were minded to remit any part of the matter to VCAT for rehearing or redetermination, they wished to be heard on whether, despite certain recent amendments to the Racing Act 1958 (Vic), VCAT would retain jurisdiction to deal with the remitted matter.[33] Again, Ms Thompson’s costs submissions make no reference to that point.
[31]Leeda Projects Pty Ltd v Zeng [2020] VSCA 192 [3] (Tate JA), [193]–[205] (McLeish JA); cf Champion v Rohrt [2016] VSCA 215 [66] (Santamaria and McLeish JJA).
[32]Ibid.
[33]See now Douglas v Harness Racing Victoria [2020] VSC 568 (Richards J).
As to the costs incurred by Ms Thompson at the RADB, there appears to be real doubt as to whether the RADB had any power to order a party before it to pay another party’s legal costs. The Rules of Racing, under which the RADB was set up, did not explicitly give the RADB any such power. Nor did the Racing Act 1958 (Vic). The nearest was the power of the RADB under LR6E(1)(e) of the Rules of Racing to ‘give any judgment or decision or make such order as in the RAD Board’s opinion the justice of the case requires’. However, it is well established that no court or tribunal has power to award costs unless the power has been conferred by a statute or pursuant to a statute, although such a power can be conferred either expressly or by necessary implication.[34] I am not aware of any RADB decision in which the Board has purported to make an order as to costs.
[34]Warner v Motor Accidents Insurance Board (2019) 29 Tas R 416, 421 [11] (Blow CJ) and cases there cited.
If the RADB had no power to award costs, then VCAT gained no power to award costs in relation to a RADB hearing.[35] I note that in 2018, in Goodrich v Racing Victoria Racing Appeals and Disciplinary Board & Racing Victoria (No 2)(Review and Regulation),[36] VCAT records that RVL submitted in that case that VCAT did not have power to order Racing Victoria Ltd to pay Ms Goodrich’s costs incurred in the proceeding before the RADB. VCAT did not decide this point. Nor was it decided in the subsequent appeals to the Trial Division[37] and to the Court of Appeal[38] in that matter. If VCAT had no power to award costs in relation to an RADB hearing, then neither does this Court. Again, Ms Thompson’s written submissions as to costs make no reference to this difficulty.
[35]See and compare Donohue v Building Practitioners Board (No 2)(Review and Regulation) [2016] VCAT 1593 [19].
[36][2018] VCAT 405 [23(g)].
[37]Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248.
[38]Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2020] VSCA 110.
Having regard to all of these circumstances, if and to the extent that I have power to award to Ms Thompson any costs in relation to the VCAT proceedings or the RADB proceedings, I would exercise my discretion to make no such order.
Form of order
For these reasons, I will make an order to the following effect:
The respondent, Racing Victoria Ltd, shall pay 90 per cent of the costs of this proceeding of the appellant, Ms Jody Thompson, including reserved costs, and including the costs of the dispute about costs, but excluding Ms Thompson’s costs of and incidental to her notice to produce dated 24 July 2019, and in default of agreement such costs shall be taxed on the standard basis.
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