Tutos v State of Victoria (No 2)

[2019] VSC 741

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S CI 2018 01793

BETWEEN:

MARIUS LUCIAN TUTOS	Plaintiff
v
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)	First Defendant
-and-
MERIT PROTECTION BOARDS	Second Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 November 2019
CASE MAY BE CITED AS:	Tutos v State of Victoria (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 741

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COSTS – Application by defendants for summary judgment pursuant to s 62 of the Civil Procedure Act 2010  – Where several defendants – Where statement of claim does not disclose a cause of action – Where application granted for one defendant – Where plaintiff given leave to file an amended statement of claim – Plaintiff to pay costs of successful defendant – Other costs to be costs in the proceeding – Supreme Court Act 1986 s 24(1) – Supreme Court (General Civil Procedure) Rules 2015 rr 63.03, 63.17, 63.20.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the First and Second Defendants	M Felman	MinterEllison

HIS HONOUR:

1. On 8 October 2019,[1] I granted an application for summary judgment against the plaintiff in relation to his claims brought against the second defendant. I also dismissed the application for summary judgment against the plaintiff in relation to his claims against the first defendant and granted the plaintiff leave to file and serve a further amended statement of claim in relation to those claims.

   [1][2019] VSC 673.

1. I reserved the costs of and incidental to the summons. These are my reasons for judgment on costs.

1. The defendants submitted that the plaintiff should be ordered to pay the second defendant’s costs incurred in defending the proceeding on a standard basis, but that the legal costs incurred in relation to the application by the first defendant should become costs in the proceeding.

1. In relation to the costs of the second defendant, the defendants submitted that the second defendant was successful in its application against the plaintiff, and that consistent with the principle that costs follow the event, the losing party should pay the costs of the successful party. They submitted that there must be special circumstances to depart from this practice and that there were no such special circumstances in this case.

1. In relation to the costs of the first defendant, the defendants submitted that rr 63.17 and 63.20 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) provided that the default position was that the costs of the application should become costs in the proceeding.[2]

   [2]Duffy v Marr [2017] VSC 384, [12].

1. The defendants submitted that there were no particular circumstances warranting a departure from this default position. They also submitted that there should be no order that prevents the first defendant from recovering their costs at the conclusion of the proceeding, should they be successful. They submit that the application for summary judgment was motivated by the plaintiff’s deficient pleadings, and while they have not been entirely successful in their application, the plaintiff’s pleadings have effectively been struck out.  

1. The plaintiff submitted that the defendants’ application has delayed the resolution of the proceeding and caused him to remain in Romania for six months longer than he had anticipated. He seeks an order for payment of $14,192.82 being ‘expenses caused by the delay in the proceedings’. This amount appears to be calculated by reference to Centrelink payments and minimum wage entitlements under Australian law. The plaintiff also claims $6,000.00 for ‘medical expenses caused by the delay and unpredictable medical conditions’. The plaintiff’s submissions otherwise did not engage with the bases upon which the defendants sought the orders they proposed.

1. Even if the plaintiff had established an entitlement to costs, the expenses he has claimed are not recoverable as costs in the proceeding. In any event, he has not established any entitlement to a costs order in his favour.

1. Further, I accept the defendants’ submissions in relation to the costs of the second defendant. There are no circumstances in this case that would warrant a departure from the usual rule that costs follow the event.

1. Without determining whether rr 63.17 and 63.20 create the default position submitted by the defendants, it is clear that the first defendant was partially successful against the plaintiff and as such the first defendant would have been entitled to press for the plaintiff to pay its costs. They have not however sought such an order.

1. In the exercise of my discretion, and for the reasons submitted on behalf of the defendants, it is therefore appropriate that the costs of the first defendant be costs in the proceeding.

Orders

1. The plaintiff must pay the second defendant’s costs on a standard basis. The costs of the first defendant will be costs in the proceeding. The Court will so order.

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