Yemini v Elasmar (No 2)

[2023] VSC 53

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04268

YEMINI, AVRAHAM SHALOM	Plaintiff
v
THE HONOURABLE NAZIH ELASMAR, who is sued as the President of the Legislative Council of the Parliament of Victoria	First Defendant
THE HONOURABLE COLIN BROOKS, who is sued as the Speaker of the Legislative Assembly of the Parliament of Victoria	Second Defendant
PAUL GROENEWEGEN, who is sued as the Serjeant-at-Arms of the Parliament of Victoria	Third Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 February 2023
CASE MAY BE CITED AS:	Yemini v Elasmar (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 53

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COSTS – Unsuccessful proceeding – Whether departure from costs following the event appropriate – Public interest considerations – Private interests of the plaintiff – No departure from the usual rule warranted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	On the papers	Thomson Geer
For the Defendants	On the papers	Maddocks

HIS HONOUR:

1. On 16 December 2022, I dismissed the plaintiff’s proceeding, in which he sought judicial review of a decision not to approve or to reject his application for a media accreditation pass to gain access to the Parliament of Victoria for his work.[1] The parties made submissions about costs in writing.

   [1]Yemini v Elasmar [2022] VSC 788.

1. The defendants seek an order that the plaintiff pay their costs, including any reserved costs, on a standard basis, to be assessed by the Costs Court if not agreed. This is the usual order as to costs, being an order that costs follow the event. They submitted that nothing about the character of the proceeding or its conduct meant that there were good reasons or special circumstances that would justify a departure from the usual order. They argued that the proceeding was of a private nature brought to secure a private benefit for the plaintiff. Any issue of public interest and any significance of the legal questions to be determined were merely incidental.

1. The plaintiff submitted that special circumstances of the kind recognised by the High Court in Oshlack v Richmond River Council[2] existed in this proceeding due to the public importance of the constitutional issues determined in the litigation, sufficient to warrant displacement of the ordinary rule that a successful defendant should obtain costs. He submitted that the proceeding raised an important constitutional issue, namely whether Parliament’s decisions on the media accreditation of journalists are justiciable. Secondly, he argued that the questions raised in the proceeding had significance beyond his circumstances. Thirdly, he argued that the questions raised had important institutional implications for the functioning of the Houses of Parliament. It was important to clarify that the Parliament can deny accreditation to non-established media.

   [2](1998) 193 CLR 72.

1. In reply, the defendants submitted that if a proceeding was private in nature, the mere fact that it affects the public interest or results in important legal questions being decided was insufficient to justify departure from the usual order as to costs. The issue of Parliament’s exclusive cognisance, on which the proceeding was determined, arose only after the defendants relied on it. The proceeding was not public interest litigation.

Analysis

1. Costs are not awarded to punish an unsuccessful party such as the plaintiff, but to indemnify the successful party. It is not sufficient simply to characterise proceedings as public interest litigation in order to avoid the normal rule as to costs. As the Court of Appeal stated in Anderson v Stonnington City Council (No 2):[3]

In our opinion, the matters raised by the appellants do not provide a basis for departing from the ordinary rule as to costs. It is, of course, well established that public interest considerations are able to be brought into account in exercising the costs discretion. However, the fact that the matter concerns public rights and duties marks only the beginning of the inquiry regarding the costs discretion. More is required to justify a departure from the general rule. For example, it will usually be relevant to consider any private interests the party seeking to invoke the public interest was advancing under the unsuccessful litigation. In Oshlack, members of the High Court spoke of proceedings brought to advance a legitimate public interest ‘rather than private rights’ or involving ‘no private gain’.

[3][2020] VSCA 238 [6] (citations omitted); Love v State of Victoria & Anor (No 2) [2009] VSC 531 [35].

1. I accept that the proceeding raised important issues, although the principle of Parliament’s exclusive cognisance has been discussed in previous cases. But, even in cases of public importance, the outcome of the proceeding remains a significant factor in the exercise of the discretion as to costs. Whether or not this proceeding was brought to vindicate a private interest, it was substantially brought to establish the plaintiff’s right to be accredited as a media representative to gain access to the Parliament of Victoria for his work as a journalist.

1. The plaintiff brought this proceeding to enforce a right that he said that he possessed. He sued the defendants to challenge the decision not to approve his application for a media accreditation pass. He was unsuccessful and the ordinary rule that costs follow the event should apply. In my opinion, the defendants are entitled to an order that the plaintiff pay their costs on a standard basis, including any reserved costs, to be assessed by the Costs Court if not agreed.