Akers v Victoria Police [2025] VSCA 341

This Court has repeatedly observed that appeals from orders as to costs are treated as exceptional and require this Court to exercise particular restraint.[12] Moreover, there is a strong presumption in favour of the correctness of an exercise of discretion on costs.[13] The test is not whether this Court would have exercised the discretion in the same way as the associate judge, but whether there was a ground on which her Honour could reasonably have made the order in question.[14]
That said, there is no basis upon which this Court could conclude that her Honour's decision as to costs was affected by any error. The decision was a discretionary decision, governed by the principles in House v The King.[15] In order to be successful in this Court, the applicant would have to establish that the associate judge acted on a wrong principle, or allowed extraneous or irrelevant matters to guide or affect her, or mistook the facts, or did not take into account some material consideration or that the result reached was unreasonable or plainly unjust.[16] The material discloses that her Honour did not make any of these types of error.
In the Trial Division, the applicant sought leave to appeal from orders made in VCAT on 12 proposed grounds. His application was entirely unsuccessful on those grounds. His amended notice of appeal was struck out in its entirety. The respondent was put to the trouble of defending meritless arguments. The only success the applicant enjoyed was on the basis of reasoning created and developed by the associate judge. The costs of the hearing, development and determination of the points raised by the associate judge could only be a fraction of the total costs of the proceeding in the Trial Division, given the late stage at which those matters were first raised by her Honour.
Far from being unreasonable or plainly unjust, her Honour's costs order was generous to the applicant in that it only required him to pay 75 per cent of the respondent's costs. Moreover, the fact that, if the associate judge's resolution of the dispute between the parties had been achieved at VCAT, there would have been no order as to costs, does not in any way suggest that her Honour's resolution of the costs issue in this case involved House v The King error.[17]
Similarly, the fact that, in paragraph 2 of the 18 December 2024 orders, her Honour made minor alterations to Attachment A and Attachment B as proffered by the respondent, provides no basis for saying that her Honour erred in making the costs order contained in paragraph 4 of those orders.[18]
Next, the applicant's submission that he 'achieved an extremely good outcome', and therefore should have not been required to pay any costs to the respondent, must be rejected. The outcome ultimately achieved by her Honour's orders made on 18 December 2024 was a very modest one (the addition of two short annotations to the Report) when compared with the 66 edits of, and additions to, the Report which the applicant initially sought.[19]
In any event, even if the applicant is now well‑satisfied with the substantive result of his appeal to the Trial Division, that does not provide any basis upon which this Court could conclude that her Honour's costs order was erroneous. As her Honour correctly observed in her reasons for the costs order, the respondent was substantially successful on the appeal to the Trial Division.
To the extent that the respondent submitted that, because he was self-represented, some less adverse order as to costs should have been made against him, that submission must also be rejected. Nothing in the applicant's personal circumstances, or the fact of his self-representation, made the associate judge's order as to costs erroneous. Moreover, nothing in Tomasevic v Travaglini[20] or any of the other cases cited by the applicant assists him on this issue.
Additionally, nothing in the respondent's conduct of the proceeding in the Trial Division militated against the making of the costs order ultimately made by her Honour. To the contrary, the respondent's conduct of the proceeding was eminently reasonable and perspicuously fair to the applicant. The applicant has not established the existence of any conduct on the part of the respondent which might disentitle it to an award of costs in its favour.
In short, nothing in the applicant's material filed in this Court provides any basis upon which this Court could conclude that her Honour's costs order should be set aside.
As to the application for an extension of time within which to seek leave to appeal to this Court, it should also be observed that the applicant's explanation for his delay, expressed at such a high level of generality in his affidavit,[21] is unsatisfactory. This provides an additional basis for refusing the extension of time application.

Akers v Victoria Police [2025] VSCA 341 | Case summary | Zoe

This Court has repeatedly observed that appeals from orders as to costs are treated as exceptional and require this Court to exercise particular restraint.[12] Moreover, there is a strong presumption in favour of the correctness of an exercise of discretion on costs.[13] The test is not whether this Court would have exercised the discretion in the same way as the associate judge, but whether there was a ground on which her Honour could reasonably have made the order in question.[14]
That said, there is no basis upon which this Court could conclude that her Honour's decision as to costs was affected by any error. The decision was a discretionary decision, governed by the principles in House v The King.[15] In order to be successful in this Court, the applicant would have to establish that the associate judge acted on a wrong principle, or allowed extraneous or irrelevant matters to guide or affect her, or mistook the facts, or did not take into account some material consideration or that the result reached was unreasonable or plainly unjust.[16] The material discloses that her Honour did not make any of these types of error.
In the Trial Division, the applicant sought leave to appeal from orders made in VCAT on 12 proposed grounds. His application was entirely unsuccessful on those grounds. His amended notice of appeal was struck out in its entirety. The respondent was put to the trouble of defending meritless arguments. The only success the applicant enjoyed was on the basis of reasoning created and developed by the associate judge. The costs of the hearing, development and determination of the points raised by the associate judge could only be a fraction of the total costs of the proceeding in the Trial Division, given the late stage at which those matters were first raised by her Honour.
Far from being unreasonable or plainly unjust, her Honour's costs order was generous to the applicant in that it only required him to pay 75 per cent of the respondent's costs. Moreover, the fact that, if the associate judge's resolution of the dispute between the parties had been achieved at VCAT, there would have been no order as to costs, does not in any way suggest that her Honour's resolution of the costs issue in this case involved House v The King error.[17]
Similarly, the fact that, in paragraph 2 of the 18 December 2024 orders, her Honour made minor alterations to Attachment A and Attachment B as proffered by the respondent, provides no basis for saying that her Honour erred in making the costs order contained in paragraph 4 of those orders.[18]
Next, the applicant's submission that he 'achieved an extremely good outcome', and therefore should have not been required to pay any costs to the respondent, must be rejected. The outcome ultimately achieved by her Honour's orders made on 18 December 2024 was a very modest one (the addition of two short annotations to the Report) when compared with the 66 edits of, and additions to, the Report which the applicant initially sought.[19]
In any event, even if the applicant is now well‑satisfied with the substantive result of his appeal to the Trial Division, that does not provide any basis upon which this Court could conclude that her Honour's costs order was erroneous. As her Honour correctly observed in her reasons for the costs order, the respondent was substantially successful on the appeal to the Trial Division.
To the extent that the respondent submitted that, because he was self-represented, some less adverse order as to costs should have been made against him, that submission must also be rejected. Nothing in the applicant's personal circumstances, or the fact of his self-representation, made the associate judge's order as to costs erroneous. Moreover, nothing in Tomasevic v Travaglini[20] or any of the other cases cited by the applicant assists him on this issue.
Additionally, nothing in the respondent's conduct of the proceeding in the Trial Division militated against the making of the costs order ultimately made by her Honour. To the contrary, the respondent's conduct of the proceeding was eminently reasonable and perspicuously fair to the applicant. The applicant has not established the existence of any conduct on the part of the respondent which might disentitle it to an award of costs in its favour.
In short, nothing in the applicant's material filed in this Court provides any basis upon which this Court could conclude that her Honour's costs order should be set aside.
As to the application for an extension of time within which to seek leave to appeal to this Court, it should also be observed that the applicant's explanation for his delay, expressed at such a high level of generality in his affidavit,[21] is unsatisfactory. This provides an additional basis for refusing the extension of time application.

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Akers v Victoria Police [2025] VSCA 341 (22 December 2025)