Supreme Court Act 1986, s 14D.

1. This is an application for leave to appeal from an order refusing leave to appeal from orders in relation to costs. For the reasons given below, the application has no prospects of success. Indeed, the application is totally without merit.[1] Leave to appeal must be refused.

1. At all relevant times, John and Dimitra Anderson ('the Andersons' or 'the plaintiffs'), who are the applicants for leave to appeal in this proceeding, owned a residential property in Stonnington ('the property'). On one border of the property, there was a lane ('the lane'). The Andersons claimed that public use of the lane resulted in numerous acts of nuisance that adversely affected their enjoyment of the property. They sought to prevent public access by erecting a fence across the lane.
2. On 18 September 2014, after the fence had been erected, the Andersons commenced a proceeding in the Trial Division against the City of Stonnington ('Stonnington'), seeking an injunction, including an interlocutory injunction, to restrain Stonnington from removing the fence. On 29 September 2014, the Andersons' application for an interlocutory injunction was dismissed.[2]
3. On 17 February 2015,[3] the Andersons joined the registered owner of the lane, Victorian Rail Track ('VicTrack'), to the proceeding as a second defendant.
4. In the proceeding, the Andersons made claims in nuisance and sought damages from Stonnington and VicTrack. They also sought declarations concerning the legal status of the lane. Specifically, they sought declarations to the effect that the lane was not a 'road' within the meaning of the Local Government Act 1989; was not a 'road' within the meaning of the Road Management Act 2004; was not a 'road' within the meaning of the common law; and was not a 'public highway' within the meaning of the common law.
5. Ultimately, the parties agreed that the application for declaratory relief should be determined as a preliminary question 'in order to clarify and expedite the Andersons' action in nuisance'.
6. On 1 July 2016, following a three day hearing in March 2016, McMillan J concluded that the lane was a road under the relevant statutory provisions and a highway open to the public at common law.[4] Having so concluded, her Honour made an order refusing the declarations sought by the Andersons.
7. On 27 September 2016, following a hearing on 31 August 2016, McMillan J made orders striking out the Andersons' claim for damages against Stonnington, and dismissing the proceeding as against it (Stonnington). Additionally, her Honour ordered that Stonnington's costs be paid on the standard basis up to and including 21 July 2015, and on the indemnity basis thereafter. The costs of the Andersons and VicTrack were reserved by her Honour.[5]
8. On 22 September 2017, pursuant to reasons published on 1 September 2017, the Court of Appeal dismissed the Andersons' appeal from McMillan J's order.[6] Having dismissed the appeal, the Court of Appeal ordered the Andersons to pay Stonnington's and VicTrack's costs of the appeal. As a result of the dismissal of the appeal, and the orders made by McMillan J referred to in paragraph [8] above, from 22 September 2017 onwards, the Andersons' proceeding remained ongoing only against VicTrack.
9. Following the determination of the Andersons' appeal, some three and a half years then elapsed. During this time, the Andersons initiated other proceedings against Stonnington (which, as I have said, was now no longer a party to the present proceeding), as well as making an unsuccessful application for special leave to appeal to the High Court.[7]
10. On 31 March 2021, VicTrack filed a summons seeking summary judgment in its favour, together with the costs of the proceeding on the standard basis and the costs of its application on the indemnity basis. On 12 April 2021, timetabling orders were made in relation to that application.
11. On 21 June 2021, Efthim AsJ made an order by consent that the Andersons' claim against VicTrack (now the only defendant) be dismissed. In other matters, it was recorded that the Andersons had agreed that the proceeding should be dismissed, but '[sought] to make submissions to the Court on the question of costs'. The Andersons were ordered to pay the costs of VicTrack's summons filed 31 March 2021, with orders being made for the filing of affidavits and submissions in relation to the balance of the costs of the proceeding.
12. Pursuant to the orders made by Efthim AsJ on 21 June 2021, and further orders made on 8 September 2021, the parties filed written submissions in which they relied upon various affidavits filed by them. Ultimately, the costs dispute came on for hearing before Ierodiaconou AsJ. The matter was heard by her Honour on 19 October and 7 December 2021.

1. In the hearing before Ierodiaconou AsJ, the Andersons sought an order that VicTrack pay their costs of the proceeding as well as the costs of Stonnington for which they were then liable pursuant to the order of McMillan J made on 27 September 2016.
2. The Andersons argued that there were two matters that justified costs orders being made in their favour, despite them being wholly unsuccessful in the proceeding: first, they asserted that they brought and maintained the proceeding because they were misled by VicTrack into believing that the lane was not a road; and secondly, they argued that VicTrack's late production on the first day of the principal trial before McMillan J of a 1917 plan of the lane ('the 1917 plan') justified the order they sought.
3. In contending that they were misled by VicTrack into believing that the lane was not a road, the Andersons relied upon ten representations alleged to have been made on various dates between 4 January 2013 and 3 February 2015, the first eight of which were alleged to have been made before the Andersons commenced this proceeding in the Trial Division.
4. On, 1 July 2022, pursuant to reasons published on 3 May 2022,[8] Ierodiaconou AsJ rejected the Anderson's submissions, dismissed their application for costs, and made the following orders:
   1. Save for the costs referred to in paragraphs 2 and 4 below, the plaintiffs pay the second defendant's [VicTrack's] costs of the proceeding, including the costs dispute, on a standard basis, to be taxed in default of agreement.
   2. The plaintiffs pay the second defendant's costs referred to in paragraph 2 of the orders made by Efthim AsJ on 21 June 2021, on an indemnity basis, to be taxed in default of agreement.
   3. The second defendant's application for certification of counsel fees is disallowed.
   4. The second defendant pay 90% of the plaintiffs' costs of the hearing on 8 September 2021, to be taxed in default of agreement.
   5. The plaintiffs pay 10% of the second defendant's costs of the hearing on 8 September 2021, to be taxed in default of agreement.
   6. The plaintiffs pay the second defendant's costs of the hearing on 24 June 2022 on a standard basis, to be taxed in default of agreement.
   7. The proceeding be otherwise dismissed.
5. The Andersons were dissatisfied with the costs determination made by Ierodiaconou AsJ and, on 15 July 2022, filed an application seeking leave to appeal against orders 1, 4, 5, 6 and 7. That application came on for hearing before Keogh J on 26 October 2023, interlocutory applications in that application having been heard and determined by Ginnane J on 29 May 2023.[9]

1. In the hearing before Keogh J, the Andersons advanced 12 grounds of appeal as follows:
   1. The Associate Justice erred in awarding the costs of the proceeding to [VicTrack].
   2. The Associate Justice erred in not making the orders sought by the [Andersons] that [VicTrack] pay its costs of the proceeding, and indemnify the Plaintiffs for the costs that they had been ordered to pay [Stonnington] in the proceeding.

2A The Associate Justice erred in not finding that the Conduct amounted to a representation by [VicTrack] expressly or by inference that it had not divested itself of the legal ownership of the Laneway and that [VicTrack] implicitly represented to the [Andersons] that the Laneway was not a public highway nor a road.

1. The Associate Justice erred in not finding that the Conduct amounted to a representation by [VicTrack] expressly or by inference that they had not divested itself of the beneficial ownership (either in part or whole) of the Laneway and that [VicTrack] thereby implicitly represented to the [Andersons] that the Laneway was not a public highway nor a road.
2. The Associate Justice erred by instead making findings about whether or not there were express representations made by [VicTrack] to the [Andersons] about whether or not the Laneway was a public highway or a road. It was unnecessary for there to be an express representation about those matters for the representation to be inferred.
3. Further or alternatively, the Associate Justice also erred in making findings about whether or not there were representations made by [VicTrack] as to whether or not it legally owned the Laneway, which was an entirely irrelevant consideration. The relevant representation was whether or not [VicTrack] continued to beneficially own the Laneway. The ordinary consequence of a representation that [VicTrack] continued to beneficially own the Laneway (even if that representation was mistaken) was that the recipient of that representation would conclude that the Laneway was not a public highway (see Court of Appeal decision at [40]).
4. The Associate Justice erred in not finding that it was a natural consequence of the making of the representation that the [Andersons] would build a fence, commence the proceeding, join [VicTrack] and maintain the proceeding.
5. The Associate Justice erred in finding that the engagement of lawyers necessarily precluded the [Andersons] from asserting that they had relied upon the Conduct in building the fence, commencing the proceeding, joining [VicTrack] and maintaining the proceeding in circumstances where it was a natural consequence of the making of the representation that it would affect the decision making process and advice of all those aware of the representation.
6. The Associate Justice erred in finding that [VicTrack's] defence (in which it had pleaded the Laneway was a public highway) necessarily precluded the [Andersons] from asserting that they had nonetheless continued to rely upon the representation to maintain the proceeding in circumstances where it was the representation and not the contradictory assertions in the defence which were operative upon the decision-making process and advice of all those aware of the representation.
7. The Associate Justice erred in relying upon later conduct by [VicTrack] (its letter of 10 November 2014 and its defence dated 13 March 2015 and the agreement by the [Andersons] to the Long User Agreed Fact shortly prior to trial) to deprive the Second Defendant [scil, the Andersons] of its [scil, their] costs prior to those events.
8. The Associate Justice erred in concluding that the agreement to the Long User Agreed Fact was determinative of the proceeding, and thereby precluded the [Andersons] from seeking costs against [VicTrack]. Whilst the Long User Agreed Fact was central to the reasoning of the Court, it was not solely determinative to the outcome of the proceeding. It only led to a rebuttal [scil, rebuttable] presumption.
9. In relation to the late introduction of the 1917 plan:

(a) the Associate Justice erred in concluding that any non-objection to its introduction into evidence precluded the [Andersons] from seeking costs in relation to its late introduction; and

(b) in not concluding that [VicTrack's] late introduction of the 1917 plan warranted a special costs order in favour of the Plaintiffs under the Civil Procedure Act 2010 (Vic).[10]

1. During the course of the hearing before Keogh J, the Andersons sought to introduce further evidence: an email from their solicitors to them sent on 5 February 2015 ('the 5 February 2015 email'). The purpose of this was to establish that they had received the letter from VicTrack to Stonnington dated 3 February 2015 which formed the basis of the tenth alleged representation. The judge refused this application.[11]
2. On 8 December 2023, pursuant to the Keogh J Reasons,[12] his Honour refused the Andersons leave to appeal from the orders of Ierodiaconou AsJ, and made further costs orders against them.

The application for leave to appeal to this Court

1. On 5 February 2024, the Andersons filed an application for leave to appeal to this Court. Their proposed grounds of appeal are as follows:
   1. The learned trial judge [Keogh J] erred in failing to receive into evidence ... [the 5 February 2015 email].
   2. The learned trial judge erred in failing to grant leave and allow the appeal on proposed grounds of appeal numbered 1 to 11 as stated in the applicants' amended notice of appeal dated 20 June 2023.
2. At the same time as they filed their application for leave to appeal, the Andersons filed a 31-page written case in support of that application. In that written case, the Andersons largely seek to relitigate for a third time arguments which were rejected by Ierodiaconou AsJ, and later, Keogh J. There is very little of what might be described as a conventional or traditional assertion of appealable error. That said, sprinkled throughout the document are some high level complaints of a general nature. For example, in paragraph [71] of the written case, the Andersons assert:

In accordance with the principles in House v King (1936) 55 CLR 499, 505, the applicants submit that the trial judge acted on wrong principle, mistook the facts, failed to take into account a relevant consideration, took into account an irrelevant consideration, or made a decision that was manifestly unreasonable.

1. Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'), the Registrar of the Court of Appeal has referred the application for leave to appeal to a single judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar's referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[13]

1. This Court has repeatedly observed that appeals from orders as to costs are treated as exceptional and require this Court to exercise particular restraint.[14] Moreover, there is a strong presumption in favour of the correctness of an exercise of discretion on costs.[15] The test is not whether this Court would have exercised the discretion in the same way as the primary judge, but whether there was a ground on which the judge could reasonably have made the order in question.[16]
2. Proposed ground 1 is devoid of merit. Keogh J was entirely correct to refuse the Andersons' application for leave to tender the 5 February 2015 email. Specifically, there was no basis for admitting the 5 February 2015 email unless the Andersons established (which they did not) that:

(a) by the exercise of reasonable diligence, that evidence could not have been discovered in time to be used in the hearing before Ierodiaconou AsJ; and

(b) it was reasonably clear that if the evidence had been available at the hearing before Ierodiaconou AsJ, and had been adduced, an opposite result would have been produced.[17]

1. The Andersons not having established that, by the exercise of reasonable diligence by them and/or their former solicitors, they could not have tendered the 5 February 2015 email before Ierodiaconou AsJ, it would in fact have been wrong for Keogh J to permit them to rely on that document in their application for leave to appeal from her Honour's orders. Moreover, as will become clear from what I say below, the tendering of that email before Keogh J could not possibly have had any effect on the outcome of this proceeding in any event. Again, contrary to the Andersons' submissions, the judge would in fact have been wrong to permit the tender.
2. I turn now to proposed ground 2 - the attempt to relitigate grounds 1 to 11 of the application for leave to appeal from the orders of Ierodiaconou AsJ.
3. In a little over 250 paragraphs of detailed reasoning, Ierodiaconou AsJ rejected the Andersons' application for the costs of the proceeding. In doing so, her Honour dealt comprehensively with each of the Andersons' submissions.
4. The Andersons' case that they brought and maintained the proceeding because they were misled by VicTrack into believing that the lane was not a road was mounted in the face of VicTrack's pleadings, in which it asserted (first in its defence filed on 13 March 2015, and then continuously thereafter) that the lane was a public highway within the meaning of the common law. After analysing the evidence in respect of each of the alleged representations,[18] her Honour found that the Andersons were not induced by any representation that may have been made by VicTrack.[19] Her Honour was plainly correct for the reasons given by her. Notwithstanding the amount of ink which has already be spilt on this issue, two further points may be noted:

(1) Notwithstanding their assertion that they brought and maintained the proceeding because they were misled into believing that the lane was not a road, after that issue was conclusively determined against them by the Court of Appeal in September 2017, the Andersons continued to maintain the proceeding for some three and a half years until June 2021.

(2) Moreover, at no time during the life of the proceeding (or, more particularly, at any time after VicTrack filed its defence in March 2015) did the Andersons plead or seek to run a case based on VicTrack's alleged representations, or a case alleging that VicTrack was estopped from asserting that the lane was a road by reason of representations it had made and which the Andersons had relied upon.[20]

1. Her Honour dealt with the late production of the 1917 plan at Costs Ruling [212]. Again, her Honour was plainly correct for the reasons she gave. Nothing further needs to be said on that issue.
2. In reasons which were also for some detail, occupying over 100 paragraphs, Keogh J refused the Andersons leave to appeal from the orders of Ierodiaconou AsJ. In doing so, his Honour said that, 'Taking account of all relevant circumstances, it is difficult to see how [Ierodiaconou AsJ] could have reached a different conclusion as to costs'.[21]
3. I agree.
4. Moreover, one might equally say in respect of the conclusions ultimately reached by Keogh J that, taking account of all relevant circumstances, it is equally difficult to see how his Honour could have reached a different conclusion, from the one he reached, as to the outcome of the application for leave to appeal from the orders of Ierodiaconou AsJ.
5. For completeness, one further point needs to be made about the Keogh J Reasons. In refusing leave to appeal from the orders of Ierodiaconou AsJ, Keogh J made express reference to grounds 1 to 7 in his analysis.[22] He did not, however, make express references of the same kind to grounds 8 to 11. That matter, however, is of no moment. Those grounds were clearly (and correctly) rejected in earlier paragraphs of the Keogh J Reasons.[23] In any event, even if there was any omission to refer to a relevant matter in the Keogh J Reasons,[24] that omission could not justify the grant of any leave to appeal to this Court - the ultimate orders of Ierodiaconou AsJ not being attended with any error which could have justified them being overturned in any appeal.
6. Finally, when one examines the circumstances of this proceeding closely, one immediately sees that the Andersons' claims for costs were, to say the least, ambitious - so ambitious that it would have been very surprising if they had been acceded to by any judicial officer. Indeed, acceding to the Andersons' submissions would almost certainly have involved appealable error - notwithstanding the restraint that appellate courts exercise when dealing with appeals from costs orders.

1. The orders made by Ierodiaconou AsJ were plainly correct. The orders made by Keogh J were plainly correct. The proposed appeal has no prospects of success. It is totally without merit within the meaning of s 14D(3) of the Supreme Court Act. It must be dismissed.
2. VicTrack seeks an order that the application for leave to appeal be refused with costs. Ordinarily, costs follow the event. The Andersons have not yet made any submissions about the costs of this application. In the circumstances, I will give them a short time within which to make any submissions they wish to make about the costs of their application for leave to appeal to this Court, before then determining that issue.

[1] As to the consequence of the application being determined to be totally without merit, see s 14D(3) of the Supreme Court Act 1986.

[2] Anderson v City of Stonnington [2014] VSC 519.

[3] Pursuant to a consent order made on 9 February 2015.

[4] Anderson v City of Stonnington (2016) 217 LGERA 179, 203 [91]; [2016] VSC 374 ('Anderson Preliminary Determination').

[5] Anderson v City of Stonnington (No 2) [2016] VSC 575.

[6] Anderson v City of Stonnington (2017) 227 LGERA 176; [2017] VSCA 229 (Warren CJ, Maxwell P and Kyrou JA) ('Court of Appeal Decision').

[7] See Anderson v Stonnington City Council [2019] VSC 453; Anderson v Stonnington City Council [2020] VSCA 229; Anderson v Stonnington City Council [2021] HCA Trans 65.

[8] Anderson v City of Stonnington [2022] VSC 216 ('Costs Ruling').

[9] Anderson v City of Stonnington [2023] VSC 301.

[10] See the Andersons' amended notice of appeal, filed 20 June 2023. (Emphasis in original.)

[11] Anderson v City of Stonnington (No 6) [2023] VSC 685, [59]-[66] ('Keogh J Reasons').

[13] See rr 64.15(2) and (5) of the Rules and s 14D(1) of the Supreme Court Act.

[14] Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301, [63] (Sifris, Walker and Whelan JJA); Gayed v Yuan [2024] VSCA 85, [51] (Beach and Orr JJA).

[15] Li v So [2021] VSCA 32, [75] (Tate, Emerton and Sifris); State of Victoria v Villain [2022] VSCA 106, [40] (Kennedy and Walker JJA).

[17] See generally, Giles v Jeffrey [2016] VSCA 314, [207]. See also Refaat v Barry [2015] VSCA 218, [76]-[77]; Clark v Stingel [2007] VSCA 292, [25]; Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 635-6; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141-2; Mullett v Nixon [2022] VSCA 174, [64].

[20] See generally Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

[23] See in particular Keogh J Reasons, [82]-[93].

[24] As to which, see Keogh J Reasons, [30]-[33] where his Honour deals with the fifth representation, before moving to the seventh representation at Keogh J Reasons, [34].