Webb v Secretary to the Department of Justice (No 2)
[2016] VSC 70
•3 March 2016
| IN THE SUPREME COURT | Not Restricted |
OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 1811
| GREGORY ROBERT WEBB | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Defendant |
---
JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers (last written submission 4 February 2016) |
DATE OF JUDGMENT: | 3 March 2016 |
CASE MAY BE CITED AS: | Webb v Secretary to the Department of Justice (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 70 |
---
COSTS – Following unsuccessful application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (see Webb v Secretary to the Department of Justice [2015] VSC 616) – Whether costs should follow the event – Whether defendant breached the overarching obligation to use reasonable endeavours to resolve the dispute by agreement – Whether plaintiff reasonably attempted to resolve the dispute by agreement – No breach by the defendant of the overarching obligation – No reason to displace the settled practice that costs should follow the event ‑ Supreme Court Act 1986, s 24 – Civil Procedure Act 2010, s 22.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff in person made submissions by affidavit | - |
| For the Defendant | Mr R McInnes, Solicitor, made submissions in writing | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
The plaintiff, Gregory Robert Webb, is a prisoner at the Marngoneet Correction Centre (‘the Prison’). On 16 February 2006, he pleaded guilty to the murder of Jason Michael King and was sentenced by his Honour Justice Osborn to 15 years imprisonment with a non-parole period of 11 years.
This proceeding involved an application for judicial review by the plaintiff under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’).[1] The plaintiff sought to review the decision-making processes associated with his completion of an Offender Behaviour Program (‘OBP’) at the Prison.
[1]Before the Rules were remade in 2015.
The defendant sought summary judgment against the plaintiff under s 63 of the Civil Procedure Act 2010 (‘CPA’) on the ground that the plaintiff’s claim had no real prospect of success and was successful.
A detailed background to this proceeding is set out in reasons published on 23 April 2015 and 12 November 2015.[2] In summary, I concluded:
[2]Webb v Wheatley [2015] VSC 153 and Webb v Secretary to the Department of Justice [2015] VSC 616.
(a) there is no public duty of the kind asserted by the plaintiff nor any correlative right that can found an order in the nature of certiorari quashing the decision (which I have assumed to have been made) to offer the plaintiff a certain OBP ‘pathway’;
(b) if the assumption I make as to that decision is not warranted, then there is no identifiable ‘decision’ which is amenable to judicial review;
(c) because an order in the nature of mandamus is not open, there is no utility to a grant of an order in the nature of certiorari quashing any decision made;
(d) there is no enforceable duty to require a decision by the defendant as to the OBP offered to him, so no order in the nature of a mandamus is available.
Applicable Law
Under s 24 of the Supreme Court Act 1986, the power to award costs is in the discretion of the Court. Whilst the discretion is absolute and unfettered, it has to be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation.[3] In the exercise of the discretion, practices or guidelines have developed.[4] These practices are not legal rules that confine the exercise of the discretion.[5]
[3]Latoudis v Casey (1990) 170 CLR 534, 537; cited with approval in Oshlack v Richmond River Council (1998) 193 CLR 72 at 86 at [34] (‘Oshlack’).
[4]Oshlack at 86 at [35].
[5]Norbis v Norbis (1986) 161 CLR 513 at 537; Oshlack at 86 at [35].
Although costs are in the discretion of the Court, there is a settled practice (sometimes called a general rule) that in the absence of good reason to the contrary, a successful litigant should receive his or her costs.[6] It is not, however, a legal rule devised to control the exercise of the discretion.[7]
[6]Ritter v Godfrey [1920] 2 KB 47 at 52; Donald Campbell and Co Ltd v Pollak [1927] AC 732 at 809; Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 at 477.
[7]Oshlack at 86 at [35].
It is relevant to observe that the purpose of a costs order is to compensate the successful party for the costs incurred, and not to punish the unsuccessful party. That purpose is a guide to the exercise of the discretion.[8]
[8]Latoudis v Casey (1990) 170 CLR 534 at 563 per Toohey J, Mason CJ agreeing; McHugh J at 567; Ohn v Walton (1995) 36 NSWLR 77 at 79.
The application under Order 56 is a civil proceeding and as a consequence the CPA applies and brings with it the overarching obligations that are imposed upon the litigants and their lawyers. The overarching obligations include the requirement to use reasonable endeavours to resolve a dispute by agreement (unless it is not in the interests of justice to do so or the dispute is of such a nature that only judicial determination is appropriate),[9] to narrow the issues in dispute,[10] and to ensure costs are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute.[11]
[9]s 22 of the CPA.
[10]s 23 of the CPA.
[11]s 24 of the CPA.
The Plaintiff’s Evidence and Submissions
For the purpose of the costs decision, the plaintiff has filed an affidavit.[12] As with his previous affidavits, it contains a mixture of evidence and legal submissions.
[12]Affidavit of Gregory Robert Webb sworn 18 January 2016.
The plaintiff submitted that he made honest attempts in writing to the defendant, or its officers, in an attempt to resolve the dispute to which his application gave rise. He produced copies of 12 letters written to various managers and officers and referred in particular to his letter of 25 February 2014.[13] In that letter, the plaintiff explained what he describes as his confusion about the situation he faced and informed Ms Wheatley that he would litigate a resolution of the dispute if it could not be resolved by agreement. With that letter he enclosed a draft copy of the Originating Motion in which he set out what he thought was his cause of action. He did not receive any “meaningful” response to the letter. He expected that if the legal position that he had articulated in his letter and draft Originating Motion was unmeritorious then the defendant and its lawyers would explain to him the error into which he had fallen. But no such response was made.
[13]See Reasons for Ruling made on 23 April 2015, Webb v Wheatley [2015] VSC 153, at [25].
He submits that the lawyers acting for the defendant were obliged to respond to his letter of 25 February 2014 and the draft Originating Motion with a plain language statement to the effect that “sorry Mr Webb, but you have got it wrong because… and you don’t have a viable cause of action which you should take to the court because…”. This did not happen. He refers to meetings held with a senior clinician[14] held on 23 April 2014 at which he sought to serve the Summons in the proceeding and at which he produced a bundle of documents and stated that his intention was to discuss the legal proceeding that he had commenced with a view to reaching an out of court settlement. He also produces a series of letters showing his readiness to enter into negotiations to settle the proceeding on “just, reasonable and appropriate terms.”[15]
[14]Mr Joe Buckby.
[15]Exhibit 5 to the plaintiff’s affidavit of 18 January 2016.
Bearing in mind that the plaintiff is a litigant in person it is relevant to note that what he is submitting is, in substance, that in determining the burden of the costs of the proceeding, the Court should take into account the overarching obligation referred to in s 22 of the CPA. That section requires, as I have pointed out, that the parties are under an obligation to use reasonable endeavours to resolve a dispute by agreement. The plaintiff submits that after many attempts to resolve the dispute, he felt as if he had been left with little option other than to proceed with his application. In the upshot, he submits that the proceeding was occasioned in part by the lack of response of the defendant and the officers of Corrections and of the defendant to his overtures for resolution.
Submissions of the Defendant
The defendant submits that:
(a) the exhibits to the plaintiff’s affidavit of 18 January 2016 demonstrate that the clinical team at the Prison were taking all reasonable steps to deal with the issue of concern to the plaintiff;[16]
[16]Specific reference is made to Exhibit 2 to the plaintiff’s affidavit of 18 January 2016.
(b) there is no evidence in the documents which the plaintiff produces as Exhibit 4 to his affidavit of 18 January 2016 which demonstrate any refusal or failure by the solicitors for the defendant in relation to the conduct of the matter to communicate with the plaintiff concerning it;
(c) while it is true that in various letters produced by the plaintiff he states his willingness to enter into settlement discussions, there is no evidence of any willingness on the part of the plaintiff to enter into any compromise. Rather, the basis upon which the plaintiff sought to resolve the dispute was to require the relevant clinicians and prison authorities to comply with the plaintiff’s demands;
(d) the letter from Ms Wheatley to Mr Webb dated 14 February 2014,[17] and the e‑notes included in Exhibit 2 to his affidavit of 18 January 2016 show that the defendant and the relevant clinicians at the Prison did all that was reasonably required to deal with the underlying issue, being the plaintiff’s participation in the OBP provided by the defendant;
(e) the plaintiff’s subsequent conduct of the proceeding, including his application to amend the Originating Motion to raise matters that are irrelevant to the underlying issue[18] does not demonstrate an understanding of the true legal position that would lead a reasonable person in the position of the defendant to attempt to resolve the proceeding once it was underway; and
(f) it was always open to the plaintiff to discontinue the proceeding at any time, especially once the defendant had made the application for summary judgment and had filed written submissions in support of it.
[17]See Webb v Wheatley [2015] VSC 153 at [23].
[18]See Webb v Secretary to the Department of Justice [2015] VSC 616 at [113].
Consideration
In my view, the submissions of the defendant should be accepted. One of the significant features of the correspondence to which the plaintiff refers in his affidavit of 18 January 2016 is the uncompromising approach he took to resolution of what he claims was a dispute. This is particularly evident from the plaintiff’s letter to Mr Joe Buckby and Ms Claire Hanrahan dated 24 April 2014.[19] In that letter, the plaintiff made his position clear that the only terms upon which he would resolve the dispute were his own terms being accepted by the defendant. It is unnecessary to set out the text of that letter save to refer to the fact that the plaintiff asked that a formal agreement be reached in relation to the delivery of clinical treatment to him and that agreement “needs to give effect to the following matters in very clear terms.” He then sets out in 12 paragraphs terms for him to complete an OBP entitled the ‘Moderate Violence Intervention Program’ on terms acceptable to him. This involved no compromise. It amounted to a demand that the defendant and the Prison capitulate to his demands.
[19]Exhibit 1 to the plaintiff’s affidavit of 18 January 2016.
In this way, it can be seen that the plaintiff was not reasonably attempting to compromise the dispute that gave rise to the litigation. What he sought to do was impose his will upon the defendant and the defendant’s prison officers and clinicians.
An additional reason why in this case there is no breach by the defendant of the overarching obligation to use reasonable endeavours to resolve the dispute by agreement, is that the dispute was of such a nature that only judicial determination was appropriate. Having heard the plaintiff make his submissions, read all of the extensive correspondence he produced in support of his claims, considered all of his written submissions, it is clear to me that the plaintiff desired his day in Court and that his mission was to go higher and wider than merely vindicate the position he took as to his participation in the OBP. It was, as he said himself, to establish that the decision making processes relating to prisoner participation in correctional services are regulated by the rules of natural justice and procedural fairness so that the system will be fairer and less arbitrary to prisoners in general.[20]
[20]See Webb v Secretary to the Department of Justice [2015] VSC 616 at [37].
For these reasons, and for the other reasons advanced on behalf of the defendant (as referred to above), this is a case where the settled practise that a successful litigant should receive his or her costs should not be displaced.
Conclusion
For the reasons outlined above the appropriate orders are:
(a) the proceeding is dismissed; and
(b) the plaintiff shall pay the defendant’s costs of the proceeding.
---
0
7
0