Weber v Deakin University (No 2)

[2016] VSC 679

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 06753

MARK PAUL WEBER	Appellant
v
DEAKIN UNIVERSITY and Ors	Respondents

S CI 2016 01380

MARK PAUL WEBER	Appellant
v
DEAKIN UNIVERSITY and Ors	Respondents

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions by the parties dated 4 November 2016
DATE OF JUDGMENT:	9 November 2016
CASE MAY BE CITED AS:	Weber v Deakin University & ors (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 679 (First Revision 14 November 2016)

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COSTS — Separate but related appeals from Associate Judge and Magistrates’ Court on questions of law — No errors identified or established — Appeals dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	The appellant in person
For the Respondent	Colin Biggers & Paisley

HER HONOUR:

1. On 6 September 2016 judgment was delivered in these two separate, but related proceedings, where the appellant appealed against the judgment of Associate Justice Derham of 11 December 2015 and the decision of Magistrate Saines of 16 March 2016. 

1. The appellant represented himself on the appeals and the respondents were represented by senior and junior counsel.

1. The appellant failed to establish that either Associate Justice Derham or Magistrate Saines erred as alleged by him.  The Court dismissed all of the grounds of appeal pressed by the appellant.

1. The successful respondents seek their costs in both proceedings, including fees for senior and junior counsel, on a standard basis.  The appellant opposes the respondents’ application for costs.

General costs principles

1. The discretionary jurisdiction of the Court as to costs is conferred by s 24(1) of the Supreme Court Act 1986 and must be exercised in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015.[1]  

   [1]Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 (14 September 2012) [11] (Croft J). See also Coombes v Ward (No 2) [2002] VSC 84 (27 March 2002).

1. The ‘usual order as to costs’ is that a successful party in litigation is entitled to an award of costs with the unsuccessful party bearing the liability for the costs of the unsuccessful litigation.[2]

   [2]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 (McHugh J).

1. The prima facie position in respect of costs in litigation is for standard costs to be ordered by the court, with the court having the discretion to award costs other than on the standard basis.  This reflects the position that an award of costs as between parties to litigation is aimed at compensating, rather than penalizing, the successful party for their legal costs incurred by reason of the proceedings.  An award of costs other than on a standard basis will only be made where the proceeding exhibits a special or unusual feature or special circumstances.

1. Discretionary factors taken into account on the exercise of the Court’s discretion in making costs orders are wide ranging.  In the case of an unrepresented litigant in person, there may be an increase in the costs of a represented opponent as a result of the nature of the claims made by the unrepresented person.  Where an unrepresented person is opposed to both senior and junior counsel, consideration must also be given to both the ascertainment of justice and the interests of the party in the successful outcome of litigation.[3]  The position must be looked at from the view point of the party who makes the decision to retain counsel before the trial, with the test to be applied being whether a reasonable and prudent but not overcautious litigant in the position of the respondents would have sought the services of two counsel, notwithstanding the expense.[4]

   [3]Stanley v Phillips (1966) 115 CLR 470, 479, 490-491 (Barwick CJ); Oldaker v Carrington [1987] VR 712, 715-716.

   [4]Peile v Nobel (Australasia) Pty Ltd [1966] VR 433, 440-441 (Starke J), see also for example, Taseska v MSS Security Pty Ltd (Costs Ruling) [2016] VSC 433, [21]-[24] (J Forrest J).

Appellant’s summary of submissions

1. The appellant submits that the VCAT is a ‘no costs’ jurisdiction and that nothing in the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) displaces this principle and the power to award costs must be in accordance with these principles.

1. The appellant submits that the appeal process ought to have been conducted by the President of the Victorian Civil and Administrative Tribunal (‘the VCAT’) as s 10 of the VCAT Act gives specific powers to the President to act in the capacity of the Supreme Court and hear appeals. The appellant considered that if the President heard the appeals there may have been a different outcome and the costs and time spent on the litigation would have been minimised.

1. He also submits that the entire appeal process and the hearings were not conducted correctly, with nothing done by the Court or by the respondents to correct this. 

1. The appellant summarised his submissions in the following manner:

A.An Appeal of a VCAT decision is mandated to be heard before the President of VCAT, therefore adhering to the wishes of Parliament

B.The President of VCAT has the powers of the Supreme Court  to hear the application

C.Having the Appeal heard in VCAT is to facilitate the purpose of the VCAT Act 1998 to expedite the outcome (reduce delays) and minimise costs

D.The respondents and legal counsel acting in the specialist area of Law in the VCAT Jurisdiction ought to have raised the issue of the hearing procedure, but which they failed to do. It is their obligations under the barristers rules that in the first instance they must advise the court of any misapprehension, again, they failed to do

E.The Applicant is a self-represented litigant and it is not in the position as a lay person with limited knowledge of law, not being a legal practitioner to have known that these proceedings were being conducted outside the provisions of the VCAT Act 1998. Indeed the VCAT has no policy, practice notes or resources available to the Applicant or the public to facilitate this

F.The respondents and their legal counsel have contributed significantly if not wholly to the escalated costs of defending these proceedings

G.That any costs application if deemed to arise before this honourable court, the Applicant contends must be in accordance with the VCAT Act 1998

H.That there has been a clear departure from the VCAT Act 1998 as to the manner of hearing the appeal, and that being said, has prejudiced the outcome to the detriment of the Applicant

I.The judicial system has failed the Applicant and thus, the Applicant asserts he should not  be penalised with a punitive costs order for that failure.

12.      In conclusion, the Applicant contends, the respondents elected to engage the level of legal counsel as they have.  Legal counsel has not raised before this Honourable Court, the issue of the hearing of the appeal process to be conducted before the  President of VCAT in order to contain costs and minimise the time and expense associated with defending these proceedings. This can be summed up in the Respondents submission at para 16 stating:-

The test to be applied is whether a reasonable and prudent but not overcautious litigant in the position of the Respondents would have sought the services of two counsel, notwithstanding the expense. Put another way, the question is whether retention of two counsel was necessary or proper for the attainment of justice or for enforcing or defending the party’s rights.

The actions of the respondents have waived their right to a costs application and as such their application should be dismissed.

13. Further and in addition, their actions have prejudiced the Applicants rights to a fair hearing by reason of the fact, they knowingly allowed the entire appeal proceedings to be heard in the incorrect jurisdiction. As such the Applicant respectfully submits that this Honourable Court ought to , under its own motion, quash the judgements on leave to appeal and the appeal, (as it was not open to the court to determine the appeal) and have them remitted back to VCAT for both to be heard in the correct jurisdiction, and secondly in accordance with the provisions of the VCAT ACT 1998, that is, before the President of VCAT. This would alleviate appealing to the Court Of Appeal, and the unnecessary costs and time in that process. The above issues were to be raised in oral evidence in the Appeal, but the Applicant was prevented from doing so and has now led to a wrong being worked.

Foot note: The VCAT  website specifically PROVIDES  instructions that  appeals of VCAT decisions must be made direct to the Supreme court. Notwithstanding, the Supreme court rules support this direction.

Consideration

1. The appellant’s submissions that the VCAT is a no costs jurisdiction and that this principle should flow through to the costs of an appeal is misconceived. Section 109(1) of the VCAT Act provides that, subject to the relevant division in the VCAT Act, each party is to bear their own costs in the proceeding. Thereafter, s 109 provides for other costs orders that may be made by the VCAT. Section 109(1) is not relevant as to whether costs in a Supreme Court appeal from the VCAT should be awarded. The respondents submit, and I accept, that it is usual for the Court to order costs against a party who is wholly unsuccessful in an appeal from a decision of the VCAT, absent any disqualifying conduct on the part of the successful appellant. By way of example, the respondents referred to Muto v Department of Planning and Community Development[5] where the Court of Appeal  awarded costs against the unsuccessful appellant in spite of the fact that the appellant was successful in a minor respect.  In these two appeals, the appellant has failed to establish error on any of the 18 grounds of appeal.  

   [5][2013] VSCA 85 (12 April 2013).

1. The appellant’s submission as to the meaning and effect of s 10 of the VCAT Act is also misconceived. Section 10 deals with the terms of appointment of a judge of this Court to be the President of the VCAT. It does not provide that an appeal may or should be heard by the President of VCAT. Section 148 of the VCAT Act provides for appeals from the Tribunal and s 148(1)(b) is applicable in the case of these appeals. It provides that a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding to the Trial Division of the Supreme Court with leave of the Trial Division.

1. In relation to the retaining of two counsel by the respondents for the appeals, there are a number of factors to consider in deciding whether or not the costs should include the retention of two counsel.  The first is that the grounds of appeal sought to be pursued by the appellant raised difficulties as a result of the many grounds relied on by the appellant, by the fact that he named a number of separate persons and senior persons associated with the first respondent, and by the fact that he made allegations of impropriety against the solicitors for the respondents and junior counsel.  The second is that the appellant sought to rely on a substantial amount of documentation in support of his many allegations.  Ultimately, the case management process reduced the number of grounds of appeal to eighteen, but these grounds raised significant and diverse arguments requiring the expertise of two counsel.  The third is that the appeals dealt with a wide variety of legal issues, varying from procedures in VCAT and a Magistrates’ Court to more complex legal issues concerning estoppel, abuse of process, evidentiary matters and discrimination law.  The final factor is that the appellant also relied on a large number of authorities and extensive written submissions which meant that the respondents were required to provide detailed responses to all of these issues.  On the basis of these factors, I am satisfied that the respondents acted reasonably and prudently but not overcautiously in retaining two counsel, notwithstanding the expense. 

1. The appellant also suggested in his submissions that a costs order against him would be punitive.  This is not the case.  The respondents are seeking their costs on the standard basis which is designed to compensate them for their legal costs reasonably incurred in defending the appeals brought by the appellant successfully.

Orders

1. In each proceeding, I will order that the appellant pay the respondents’ costs, including any reserved costs, on the standard basis to be taxed in default of agreement.

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