Tucker v State of Victoria [No 2]
[2023] VSCA 180
•9 August 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0002 |
| TOBIAS JOHN TUCKER (ALSO KNOWN AS TOBY TUCKER) | Appellant |
| v | |
| STATE OF VICTORIA [NO 2] | First Respondent |
| AND | |
| PAUL BRODERICK (IN HIS CAPACITY AS COMMISSIONER OF STATE REVENUE) | Second Respondent |
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| JUDGES: | NIALL and OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 9 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 180 |
| JUDGMENT APPEALED FROM: | [2022] VSC 760 (McDonald J) |
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COSTS – Whether to award costs at first instance and on appeal – Issue of whether appellant instituted proceedings vexatiously or without reasonable cause or committed unreasonable act or omission best determined by Trial Division at conclusion of proceeding – Respondents’ costs at first instance reserved to Trial Division – Measure of success for each party on appeal – No order as to costs on appeal.
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| Counsel for written submissions | |||
| Appellant: | In person | ||
| Respondents: | Mr JL Bourke KC with Ms R Preston | ||
Solicitors | |||
| Appellant: | — | ||
| Respondents: | Maddocks | ||
NIALL JA
OSBORN JA:
On 25 May 2023, this Court handed down its reasons in this proceeding.[1] These reasons deal with the question of costs. They assume a familiarity with our reasons on the application for leave to appeal.
[1]Tucker v State of Victoria [2023] VSCA 126.
In short, in a separate proceeding the appellant seeks to impugn an order for the payment of $199,681.46 in damages (‘the damages order’) on the ground the order was tainted by fraud (‘the fraud proceeding’). In the fraud proceeding, the appellant sought by summons a stay of the damages order, a release from his undertaking as to damages and consequential orders. A judge in the Trial Division refused the orders sought by the appellant and stayed the fraud proceeding until the appellant complied with his undertaking by paying the damages.
The appellant sought leave to overturn the stay of the fraud proceeding. In the reasons of this Court delivered on 25 May 2023, it was determined:
(a)the judge was correct to refuse the appellant’s applications for a stay of the damages order and to be released from the undertaking; and
(b)the judge erred in staying the fraud proceeding.
As a result, the application for leave to appeal was granted and the appeal was allowed. The judge’s orders were set aside and in their place the appellant’s summonses were dismissed and the appellant was ordered to pay the respondents’ costs of each summons.
The parties were given the opportunity to file and serve brief written submissions as to costs. The parties were subsequently given the opportunity to file further written submissions on costs, including on costs before the judge in the Trial Division.
The parties’ submissions
In his initial submissions, the appellant submits that the slip rule ought to apply to set aside the order made by this Court that the appellant pay the respondents’ costs of each summons, as it was subject to s 570 of the Fair Work Act 2009 (Cth) (‘FWA’).[2] In his further submissions, the appellant submits that costs in the fraud proceeding in the Trial Division are subject to s 570 of the FWA because the claim for relief is a matter arising under the FWA and the fraud claim is part of an overall or wider ‘controversy’, that is, a workplace dispute governed by the provisions of the FWA.
[2] Section 570 of the FWA provides:
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
As to the costs of the appeal, the appellant submits that justice dictates he should be indemnified for his expenses unnecessarily incurred in correcting the primary judge’s error. The appellant submits this peculiar injustice could be ameliorated by the Court’s broad discretion to order the Registry to refund the appellant’s court fees, or alternatively by an order that the respondents pay his costs. The appellant submits that despite not all of his submissions being accepted, there is no basis to award costs in favour of the respondents given the appeal was ultimately allowed. In his further submissions, the appellant submits it may be that the discrete issue of a stay, on appeal, is too disparate to engage s 570 of the FWA and thus, the Court may award the appellant costs of the appeal.
As to the primary judge’s costs orders, in his further submissions the appellant submits they were problematic for the following reasons:
(a)they were in respect of the respondents’ two applications in circumstances where those applications were not, and have not been, heard or determined;
(b)the appellant’s non-compliance with the undertaking was no basis to award costs even if s 570 of the FWA applied;
(c)the decision to refuse the appellant’s applications was not enough to render them untenable, unreasonable and vexatious;
(d)the judge should have published written reasons for making such extreme costs orders consistent with the open court principle; and
(e)there may be a basis to award costs against the respondents, given their failure to assist the Court.
The appellant submits that he should at least be indemnified by the respondents in each of his successful applications in this proceeding and the three proceedings that were the subject of Tucker v State of Victoria.[3] Given the State (which is the first respondent in this proceeding) and its agents were the respondents to each of the applications, it is open to the Court, on its own motion, to stay, set aside or amend the appellant’s obligation to pay the State damages.
[3][2021] VSCA 120 (‘Tucker Appeal No 1’).
The respondents submit they were in truth the predominantly successful parties. The appeal was successful only in relation to the judge’s decision to stay the proceeding pending compliance with the undertaking, and the focus (and associated legal expenditure) of the appellant’s appeal was on the appellant’s release from the undertaking and stay of the damages order, on which the respondents were successful.
The respondents submit the matters the appellant relied on in support of his summonses, below and on appeal, did not disclose an arguable case, the statement of claim and further and better particulars failed to disclose a proper basis for the claims made and the proceeding lacked reasonable prospects of success. In the circumstances, the appellant engaged in ‘unreasonable acts or omissions’ or otherwise sought to appeal the dismissal of his summonses ‘without reasonable cause’, enlivening the discretion to order that a party pay costs in s 570 of the FWA. The respondents submit a costs order should follow in their favour.
The respondents submit they acted reasonably in seeking to defend the primary judge’s decision to stay the fraud proceeding until the undertaking was complied with, and as such no costs order should be made against them in respect of this aspect of the appeal.
As to the application of s 570, in their further submissions the respondents state they had concluded that they were bound to accept that the appeal and the proceeding below were ‘in relation to’ a matter arising under the FWA and therefore s 570 applies. The respondents’ earlier written submissions accordingly assume the application of s 570, but the respondents submit the appellant should pay their costs whether or not this Court determines that s 570 applies.
In their further submissions, the respondents submit there is no error in the primary judge’s determination that the appellant pay the respondents’ costs, raising the following unreasonable acts and omissions by the appellant that caused the respondents to incur costs:
(a)the appellant commencing the fraud proceeding where the proceeding lacked reasonable prospects of success;
(b)the appellant’s summonses being made and pressed in the absence of any cogent evidence in support, causing the respondents to incur costs responding to matters which this Court has found did not disclose an arguable case; and
(c)the appellant’s breach of his undertaking as to damages, which was itself an unreasonable act or omission, and without which the summonses would not have been made and the respondents would not have had to bear the associated costs.
Decision
The potential application of s 570 of the FWA presents as a threshold issue.
Notwithstanding the position of the parties that in light of this Court’s decision in Tucker Appeal No 1, s 570 of the FWA applies to this proceeding, we are not presently disposed to proceed on that basis. The jurisdiction of this Court that is invoked by the appellant is one directed to an order of a superior court of record, not the underlying rights that gave right to that order. Accepting that the words in s 570 are broad and require that the proceeding be one in relation to a matter arising under the FWA, there is at least an arguable case that the present proceeding is not of that kind, and that this issue was not determined by this Court in the earlier appeal. In reaching this conclusion we have had regard to our duty under s 8 of the Civil Procedure Act2010 to seek to give effect to the overarching purpose stated in s 7 and facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Particularly in the context of interlocutory steps, the determination of costs is a matter for the Court and not merely the parties.
Recognising the approach taken by the parties, it is inappropriate that we say any more about the topic at this stage.
Dealing first with the costs of the hearing at first instance, we are persuaded that the appropriate order is to reserve the respondents’ costs to the Trial Division. The respondents were successful in resisting the two summonses filed by the appellant. On the assumption that s 570 applies, the issue of whether costs are available on the basis that the appellant instituted the proceedings vexatiously or without reasonable cause or has committed an unreasonable act or omission that caused the respondents to incur costs is best determined by the Trial Division at the conclusion of the proceeding. We are satisfied that, on no account, should the appellant be entitled to his costs of the two summonses.
As to the costs in this Court, we are persuaded that each party has had a measure of success and we propose to make no order as to the costs of the application for leave to appeal or of the appeal.
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