Visedo v State of Victoria (Ruling)
[2022] VCC 1302
•15 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-00217
| CHARLES VISEDO | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | JUDICIAL REGISTAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2022 | |
DATE OF RULING: | 15 August 2022 | |
CASE MAY BE CITED AS: | Visedo v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1302 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Order for costs rule 63A.24 of the County Court Civil Procedure Rules
Legislation Cited: County Court Act 1958; County Court Civil Procedure Rules 2018; Magistrates’ Court Act 1989; Crimes Act 1958; Local Court Act 2007 (NSW); Local Government Act 2020; Supreme Court Act 1986; Civil Procedure Act 2010
Cases Cited:Mostafa v Sherif and Anor (No 2) [2020] VCC 1901
Ruling: The plaintiffs’ costs are ordered on the appropriate Magistrates’ Court Scale of Costs. No Order for Costs on this application.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Evatt | Deo Indevar |
| For the Defendant | Mr C Morshead | Hall & Wilcox |
HIS HONOUR:
Summary
1This is a Summons application by the plaintiff seeking the following orders:
(a) pursuant to s78A of the County Court Act 1958, the defendant is to pay the plaintiff’s costs of the proceedings, to be taxed in default of agreement, on the basis that Rule 63A.24 of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”) does not apply to the plaintiff’s claim;
(b) costs of this application; and
(c) any other orders this Court sees fit to make.
2In support of the application, I had the assistance of two affidavits of the plaintiff’s solicitor, Deo Indevar, affirmed on 26 May 2022 and 4 July 2022, and written submissions, filed 21 June 2022.
3For the defendant, I had written submissions, dated 1 July 2022 and an affidavit of Lauren Handreck, affirmed on 1 July 2022.
4When the plaintiff commenced proceedings on 21 December 2020, he was a self-represented litigant. A notice of solicitor acting was filed on 5 July 2021. I note no amendments have been made to the Statement of Claim since 21 December 2020.
5The plaintiff claims aggravated and exemplary damages for false imprisonment, battery and assault. It is pleaded that on 20 June 2019, the plaintiff, while at his residence at 94 Pearson Street, Brunswick West, responded to an attendance on the premises by members of Victoria Police (“VicPol”). He was informed he needed to attend the police station and was placed under arrest. The plaintiff alleges he sustained loss and damage, a loss of liberty and was shocked and distressed. Paragraphs 3 to 7 inclusive of the Statement of Claim pleads events related to why members of VicPol attended the plaintiff’s premises.
6The Defence was filed on 20 September 2021.
7Initial timetabling orders were made by me on 23 June 2021, listing the matter for trial on 28 April 2022. On 19 April 2022, Judge Pillay made an order vacating the trial date and listing the matter for an administrative hearing on 24 May 2022. By that date, the parties were to submit proposed orders relevant to the finalisation of the proceedings.
8The Court was informed the proceeding had settled by the acceptance by the defendant of an Offer of Compromise served by the plaintiff on 31 March 2022. The only issue outstanding was in relation to Rule 63A.24 of the Rules.
9I was informed of the settlement amount, which was less than 50 per cent of the Magistrates’ Court jurisdictional limit.
10The following is not in dispute between the parties:
(a) on 31 March 2022, a conversation took place between the plaintiff and defendant’s solicitor about a method of resolving the matter and the use of an Offer of Compromise;
(b) later that day, the defendant’s solicitor provided the appropriate wording to the plaintiff’s solicitor for the Offer of Compromise.
(c) the plaintiff’s solicitor then served an Offer of Compromise with the agreed wording;
(d) the defendant accepted the Offer of Compromise.
11The plaintiff’s Offer of Compromise was Exhibit D14 to the plaintiff’s solicitor’s first affidavit and the defendant’s acceptance was Exhibit D15 to that affidavit. The defendant’s preferred wording was replicated in the plaintiff’s Offer of Compromise, dated 31 March 2022. The applicable paragraph is:
“In addition to this offer, the Defendant is to pay the Plaintiff’s costs of the proceedings, which are to be taxed in accordance with the County Court Civil Procedure Rules 2018, including consideration of whether rule 63A.24 applies, in default of agreement.”
12Because the parties had discussed and agreed upon the wording of the Offer of Compromise, the parties informed me they agreed the offer was capable of being accepted in this form.
13The dispute between the parties raises the following for consideration:
Does s100(2) of the Magistrates’ Court Act 1958 (“The Act”) preclude the plaintiff commencing these proceedings in the Magistrates’ Court? If so, given the amount of the settlement, should I exercise my discretion under Rule 63A.24 and order what costs apply to the settlement of the proceeding?
Consideration
14Rule 63A.24 of the Rules provides:
“Money claim in wrong court
(1) Where in a proceeding for debt or damages the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding one‑half of the amount of the jurisdictional limit of the Magistrates' Court in a civil proceeding (at the time the proceeding commenced), the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the Magistrates' Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates' Court, but shall not be required to pay to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff.
(2)For the purpose of paragraph (1), the amount which a plaintiff recovers by judgment or otherwise shall include any amount which under section 66(1) of the Workers Compensation Act 1958 as amended by the Workers Compensation (Actions) Act 1981 and in force for the time being or pursuant to section 79(3) of the Workers Compensation Act 1958 as in force immediately before the commencement of the Workers Compensation (Actions) Act 1981 is deducted from the amount for which the plaintiff would, but for the deduction, be entitled to judgment.
(3) Paragraph (1) does not apply where a claim of the defendant against the plaintiff for the recovery of a debt or damages is set off against the claim of the plaintiff under Rule 13.14 and the amount for which the plaintiff would, but for the set-off and any deduction of the kind referred to in paragraph (2), be entitled to judgment exceeds one-half of the amount of the jurisdictional limit of the Magistrates' Court in a civil proceeding.”
15Order 26 of the Rules, is headed “OFFERS OF COMPROMISE”. Rule 26.02(4) states:
“(4) An offer of compromise must state either—
(a) that the offer is inclusive of costs; or
(b) that costs are to be paid or received, as the case may be, in addition to the offer.”
16Section 78A of the County Court Act, is headed “Costs”. Subsection (1) states:
“(1)The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.”
The Plaintiff’s submissions
17The plaintiff referred to s100 of the Act on the extent of jurisdiction of the Magistrates’ Court. Subsection (2) says:
“(2) The Court does not have jurisdiction in any cause of action—
(a) in which the effect of, or the validity or invalidity of, any act, matter or thing done or omitted to be done by any person or body whatsoever in the exercise or purported exercise of any power or duty conferred or imposed on that person or body or purportedly conferred or imposed on that person or body by or under—
(i) any royal prerogative; or
(ii) any statute—
is sought to be determined or declared;”
18The plaintiff submits that the issue is whether the plaintiff’s cause of action in false imprisonment seeks to have determined the effect of an exercise of power to arrest under the Crimes Act 1958.
19The plaintiff referred to several authorities in New South Wales and s33 of the Local Court Act 2007 (NSW), which specifically states the Local Court had no jurisdiction over claims of false imprisonment.
20The plaintiff noted the Defence pleaded reliance on s459 and s462A of the Crimes Act. The defendant pleaded lawful justification for the arrest and detention of the plaintiff. If the matter had proceeded to trial, the Court would have been required to determine the validity or invalidity of the exercise of power to arrest under those sections.
21The plaintiff therefore submits that the Magistrates’ Court did not have jurisdiction under s100(2) for this claim. Because of that, the plaintiff had no other option but to present the proceedings in the County Court and, therefore, the Court should exercise its discretion, pursuant to R63A.24, that the Rule should not apply. I should order the plaintiff’s costs pursuant to the County Court scale.
The Defendant’s submissions
22The defendant submitted that s100(1)(a) of the Act says that the Magistrates’ Court has jurisdiction:
“… to hear and determine any cause of action for damages or a debt or a liquidated demand if the amount claimed is within the jurisdictional limit.”
23The exception under s100(2)(a) of where the Court does not have jurisdiction, requires the Court to focus on the language used in that section. It confines this exception to a statutory power or duty. This must be contrasted with the position in New South Wales under the Local GovernmentAct 2020, where false imprisonment is specifically excluded. It was submitted, if it was the intention that false imprisonment be excluded under the Act, then it should have been drafted in specific terms.
24Further, when reference is made to the plaintiff’s Statement of Claim, it does not make any specific pleading relevant to the Crimes Act. While pleaded in the Defence, I was referred to s32(1) of the Supreme Court Act 1986, which outlines the process that applies where a Defence raises matters outside an inferior court’s jurisdiction. That section says:
“(1) If as to any claim brought in an inferior court the defendant raises—
(a) a defence; or
(b) …
which involves a matter exceeding the jurisdiction of that court, then, unless an order is made under the Courts (Case Transfer) Act 1991 transferring the proceeding to a court with jurisdiction, that court must determine all the issues raised in the proceeding that relate to the claim of the plaintiff and the defence to it and may grant relief on the counter-claim to the extent that it is within its jurisdiction to do so.”
No application has been made by the plaintiff to transfer the proceedings.
25It was further submitted that the pleadings do not make any reference to the VicPol officers exceeding the jurisdiction or their power and for these reasons the issue of the statutory powers are not enlivened.
26The submissions referred to a number of authorities and in particular the matter of Mostafa v Sherif and Anor (No 2)[1] (“Mostafa”), a decision of Judge Cosgrove of this Court. Judge Cosgrove summarised the key factors that may be taken into account in determining whether the discretion under Rule 63A.24 should be exercised and these were:
(a) the amount claimed and the reasons for it;
(b) the amount actually recovered and the reason for this;
(c) the difficulty, or otherwise, of assessing the likely damages awarded;
(d) the complexity, or otherwise, of the case, factually and/or legally;
(e) the nature of the proceeding in question and how this impacts, if at all, upon the need to proceed in a higher or specialist court; and
(f) the conduct and attitudes of the parties to the litigation.
[1][2020] VCC 1901
27Also included, was a review of several false-imprisonment cases, where the amount awarded for damages was under 50 per cent of the Magistrates’ Court jurisdiction. It was argued the Statement of Claim did not articulate any amount for damages. Limited material was served and there was nothing specifically unique to these factual circumstances, which would suggest that the plaintiff’s assessment of damages would be outside the range of those previous decisions.
Reasons
28What was intended by s100(2) of the Act with respect to the civil jurisdiction of the Magistrates’ Court is unclear and interpretation of that section is difficult. It would appear, on a broad interpretation, to exclude many matters by reference to any power or duty conferred or imposed under any statute. Neither party was able to provide any clear authority on its interpretation with respect to the matters excluded by ss(2).
29In Civil Procedure Victoria (Williams), the commentary was limited to a discussion on issues around the monetary jurisdiction and did not address this issue.
30I found some guidance in the commentary in Victorian Courts[2] at paragraph MCA100.560, where it was said:
“Legislation creating particular remedies may specify the courts in which those remedies may be obtained. Where there is such specification and the Magistrates' Court is not included in the courts so specified, or if exclusive jurisdiction is given to some other court, the cause of action is one which is excluded from the jurisdiction of the court.”
[2] Westlaw AU, Victorian Courts (online at 4 August 2022) ‘Magistrates Court Act 1989’ (Annotated), ‘Part 5 – Civil Proceedings (ss100-114)’ [MCA100.560].
31The Explanatory Memorandum merely said that clause 100 sets out the civil jurisdiction of the Magistrates’ Court.
32Further, the Second Reading Speech on the Bill discussed only the monetary jurisdiction.
33The defendant’s submission was that, if it was intended to exclude matters such as this, as was done in a New South Wales local court, then the Act should specifically state this.
34I note amendments introduced by ss2A. This states the jurisdictional limit does not apply to any questions or matters that the Court has jurisdiction to determine arising under Part IV of the Accident Compensation Act 1985, Part 3A of the Victorian Civil and Administrative Tribunal Act 1998 and the Workplace Injury Rehabilitation and Compensation Act 2013. This would suggest an intention to make it clear that the Magistrates’ Court had power to deal with matters under those sections of the Acts, which supports the broader interpretation of s100(2).
35The defendant, being the State of Victoria, and responsible for the defence of matters such as this, did not specifically plead any jurisdictional issues in its Defence. The issue was first raised by the defendant in correspondence of 21 September 2021. When raised, it was in the context of a review of cases involving unlawful imprisonment and the amount awarded for damages. However, I should not speculate why the jurisdictional issue was not raised by the defendant.
36With respect to operation of Rule 63A.24, much guidance can be obtained from the Ruling in Mostafa and the key factors identified by Judge Cosgrove.
37I should also consider the Civil Procedure Act 2010 (“CPA”) and the requirement to give effect to the overarching purpose of the Act. The overarching purpose of the Act, as set out in s7, is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
38Section 9 of the CPA at ss(1)(g) says that, in making an order or giving any direction, the Court, in furthering the overarching purpose, should have regard to dealing with a civil matter in a manner proportionate to ss(i), “the complexity or importance of the issues in dispute and ss(ii), “the amount in dispute”.
39Subsection (ii) sets out the matters I should have regard to for the purposes of ss(i), which includes:
“(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;”
40Part 2.3 are the overarching obligations and s24, is headed “Overarching obligation to ensure costs are reasonable and proportionate”. It says:
“A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to —
(a) the complexity or importance of the issues in dispute; and
(b) the amount in dispute.”
41Contained within the affidavit material, is correspondence passing between the practitioners. That correspondence suggests to me the practitioners, when negotiating to settle the Claim, did their best to comply with their obligations under the CPA. The defendant, at an early stage in the negotiations, made reference to comparative judgments for similar matters and raised the issue of the potential application of Rule 63A.24.
42But the use of an Offer of Compromise with the wording on Rule 63A.24 did leave the final resolution of all matters unresolved. Given the nature of negotiations and discussions between the practitioners, they may have been optimistic the cost issue would also resolve.
43Unfortunately, the negotiations and discussions between the practitioners on Rule 63A.24 were not conducted in a similar manner to settlement of the claim.
44Correspondence from the plaintiff’s solicitor, dated 12 April 2022, sets out the plaintiff’s argument why the matter was commenced in the County Court. That correspondence included the following paragraph:
“We seek a confirmation from the Defendant that Rule 63A.24 does not apply in respect of costs of the proceedings by 5pm on Thursday 14 April 2022. Failing this, I am instructed to file, without further notice, a motion with the Court seeking a determination as to the applicability of Rule 63A.24, in which event, the Plaintiff will also seek costs of the motion.”
45The defendant solicitor responded on 15 April 2022, stating they did not have instructions to respond to the proposal, but noted that the application of Rule 63A.24 had been a live issue throughout the proceedings. The defendant said:
“… Before embarking on a Court application, it may be worthwhile attempting resolution by negotiation before taking the dispute to the Court. We suggest you provide us with an estimate of your client’s standard costs.”
46The reply from the plaintiff’s solicitor on 19 April 2022 was:
“Thank you for your email.
The Plaintiff has indicated his position regarding Rule 63A.24 of the County Court Civil Procedure Rules 2018 (Vic) in our letter dated 12 April 2022.
We consider that this issue needs to be resolved before the parties can sensibly discuss the quantum of costs.
We invite you to obtain instructions from your client regarding rule 63A.24. In the event that there is no agreement by 4pm on Thursday 21 April 2022, we will seek to file our motion with the County Court.”
47It appears that despite the limited monetary amount of the settlement, and with some uncertainty on the application of s100(2), the path chosen by the plaintiff was to issue a Summons and seek a determination by the Court without attempting to negotiate costs. Was this a reasonable endeavour to ensure costs are proportionate?
48As this matter resolved by negotiation, I do not have the benefit of reasons pursuant to a judgment.
49I am not satisfied, on the material before me, that s100(2) does preclude the proceedings being brought in the Magistrates’ Court. Given that position, the question then is, can I make an Order on costs pursuant to Rule 63A.24 without determining the application of s102? For the reasons I set out, I believe I can.
50The power granted to the Court under Rule 63A.24, makes it clear there is a discretion with the Court on the application of the Rule. The Rule says, “unless the Court otherwise orders”. This power is consistent with s78A of the County Court Act.
51Further, the CPA obligations require the Court to consider proportionality and compliance with the objections of the Act.
52But I am also satisfied that, even if I was to find s100(2) precluded the plaintiff commencing the proceedings in the Magistrates’ Court, this Court would still have the power to make what Cost Order it considered appropriate.
53The following factors apply for the Order I make:
(a) the amount that has been recovered is clearly well under 50 per cent of the jurisdictional limit;
(b) the parties agree that the matter was resolved by negotiation without progressing through most of the normal interlocutory steps;
(c) there is no evidence before me that this case involved any great complexity, either factually or legally;
(d) the conduct and attitude of the parties up until the point of the dispute on the application of Rule 63A.24 was to attempt to resolve the matter without proceeding to a hearing;
(e) the bringing on of this matter to a hearing on Rule 63A.24 was entirely the choice of the plaintiff, and without negotiation.
54I will make an order that the defendant pay the plaintiff’s costs on the applicable Magistrates’ Court scale. However, I will not make an order that any amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates’ Court is to be deducted from those costs. My reason for this is, because I have taken into consideration the position the plaintiff was placed in with the possible application of s100(2), and the matters I have raised with respect to the defendant’s knowledge, or otherwise, of its application.
55For costs on the Summons application, I note this was an issue in dispute between the parties for some time. I further note that the parties agreed to the wording of the Offer of Compromise. A factor I have also considered, is the attempt by the defendant to negotiate costs and the plaintiff’s refusal. Therefore, I do not believe either party should benefit with an order for costs.
56Finally, it is unclear, on the material before me, whether it was the plaintiff, himself, or his solicitor, that chose to bring this issue on without negotiation. Given the matters raised pursuant to s24 of the CPA, and my ruling on the application of the Magistrates’ Court costs scale, I trust the plaintiffs costs are proportionate to the amount recovered.
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