Appellant v First Respondent

1 By originating motion filed on 15 September 2016, Thanasis Raptis, the lessee of certain premises at 333 Collins Street, Melbourne, brought claims against the City of Melbourne ("the City") and the landlord, 333 Choice Properties Pty Ltd ("the Lessor"). On 10 May 2017, Mukhtar AsJ acceded to applications by the City and the Lessor respectively for the substance of the indorsement on the originating to be struck out and for the proceeding to be dismissed as against the Lessor.

2 In relation to the application by the City, the Associate Justice found:[1]

The content of [Mr Raptis'] motion and the swollen supporting affidavits are very difficult to comprehend. Parts are not intelligible. It is difficult to discern what relief or remedy is being sought as against the City and I agree that it is legally embarrassing as a matter of composition. Not only that, but, as the evidence shows, the City of Melbourne decided on his complaints that the works and mechanical services at the premises were compliant. Despite that, Mr Raptis appears to be trying to propound an illegality case against the lessor by seeking orders under the general enforcement provisions of the Building Act, in particular s 253. But, he does not have standing to bring proceedings or seek orders or relief under those regulatory provisions. That is a matter for the Victorian Building Authority, or the building surveyor. It is not legally competent for Mr Raptis to seek the making of penal or infringement orders under the Building Act.

3 Regarding the application by the Lessor, the Associate Justice found:[2]

The proceeding as against the lessor must be dismissed because the dispute is not justiciable in the Supreme Court. It is a 'retail tenancy dispute' within the meaning of s 81 of the Retail Leases Act 2003. That is, it is a dispute 'arising under or in relation to a retail premises lease' for which the Victorian Civil and Administrative Tribunal has exclusive jurisdiction under s 89 of the Retail Leases Act.

4 In the reasons published on 10 May 2017, his Honour indicated a preliminary view that Mr Raptis, being unsuccessful, ought to pay the defendants' costs:[3]

On the question of costs, I can see no reason why they should not follow the event. That is, the plaintiff pay the lessor's costs of the proceeding and the application, and pay the City's costs of its application.

5 Upon the Lessor indicating that it sought costs on an indemnity basis, Mukhtar AsJ made the following Orders to facilitate the determination of the defendants' entitlement to costs:[4]

1. The second defendant shall file and serve any written submissions on costs and any supporting material with the Judge's Associate by 19 May 2017.
2. The first defendant may file and serve any written submissions on costs and any supporting material with the Judge's Associate by 19 May 2017.
3. The plaintiff shall file and serve any written submissions on costs and any supporting material with the Judge's Associate by 26 May 2017.

6 The City did not make any further submissions on costs. The Lessor sought indemnity costs on the basis that Mr Raptis had declined a Calderbank letter and that he had acted unreasonably and in contravention of the Civil Procedure Act 2010 in prosecuting his claim in the wrong jurisdiction. Mr Raptis did not file any submissions or supporting material, but instead emailed a Notice of Appeal to Mukhtar AsJ's chambers on 26 May 2017, which was then filed in amended form on 29 May 2017.

7 On 30 May 2017, Mukhtar AsJ ordered that Mr Raptis pay the City's costs on a standard basis and the Lessor's costs on an indemnity basis, and provided short written reasons for so doing ("the Costs Determination").[5]

8 It is from Mukhtar AsJ's Order of 11 May 2017 which Mr Raptis appealed, despite that Order merely setting the timetable for the determination of the costs issue. As the Notice of Appeal states:[6]

1. I appeal against the Order made on 11 May 2017 for Court's reasons of paragraph 62 for costs, published 10 May 2017 in [2017] VSC 247.

9 A number of other matters were canvassed in the Notice of Appeal. Mr Raptis complains that he was only allowed one week to make submissions on costs and that he was not given the opportunity for an oral hearing.[7] He also appeals against paragraph 55 of Mukhtar AsJ's reasons insofar as they treat the "Relief Sought" section of the Originating Motion as an indorsement.[8] Other matters are referred to in the Notice of Appeal which are incoherent or plainly irrelevant. For example, Mr Raptis places broad reliance on s 51(xxxi) of the Commonwealth Constitution.[9] He also seeks a trial by jury, the freezing of the orders made on 11 May 2017, the return of rent already paid and the grant of the relief sought in his originating motion.[10]

10 At the directions hearing of 23 June 2017 in these appeal proceedings, it became apparent that, while Mr Raptis maintained allegations of procedural deficiencies in the hearings before the Associate Justice, the crux of his complaint was against the costs order made on 30 May 2017:[11]

MR RAPTIS: Correct. If you'll allow me to intervene, Your Honour, I can put the basis of my appeal.

HIS HONOUR: I don't want to hear that. I want to hear what the appeal is.

MR RAPTIS: The appeal is against the orders made for costs by the associate justice on 11 May 2017.

HIS HONOUR: So it's only an appeal on the costs orders?

MR RAPTIS: I do.

HIS HONOUR: That's the extent of the appeal is it?

MR RAPTIS: Yes, I do. I do, if you allow me, I can explain.

HIS HONOUR: This is a directions hearing, I don't want to hear the basis of the appeal. I just want to know what the issue is which is the subject of the appeal.

MR RAPTIS: The issue is I'm appealing against the orders based on the fact that the associated retail development approved by the granted permit did not permit it more than one shop so therefore in my view I'm not liable to incur these costs, so I'm appealing the cost orders, the cost orders indemnity or basic orders and also the special orders.

HIS HONOUR: Sorry, also to what?

MR RAPTIS: The special cost orders.

HIS HONOUR: I see, yes. So to be quite clear, the extent of the appeal is confined to the costs orders made by Associate Justice Mukhtar on 11 May.

MR RAPTIS: Which are related to the (indistinct) of the 1989 granted permit.

HIS HONOUR: That might be so but that's the extent of the appeal? That's the beginning and end of the appeal, so it's an appeal on costs orders?

MR RAPTIS: Correct.

HIS HONOUR: And that's all?

MR RAPTIS: Correct.

HIS HONOUR: All right, good. Thank you.

Thus the scope of the appeal was clarified by my Orders on 23 June 2017, wherein the questions in the appeal were defined as follows:

1. Did his Honour err in finding at paragraph [62] of the Judgment that costs follow the event?
2. Should costs follow the event either in part or in full?
3. Did his Honour err in finding in the Cost Determination that the plaintiff pay the second defendant's costs of its summons filed on 10 November 2016 and of its application for special cost orders on the indemnity basis?

11 By s 17(3) of the Supreme Court Act 1986, an appeal lies to a judge of the Trial Division from any determination of the Trial Division constituted by an Associate Justice. Such appeals are re-hearings rather than de-novo hearings and guidance may be drawn from the approach of the Court of Appeal to appeals from the Trial Division.[12] While it once seemed, on the basis of the just cited authorities, that it was necessary for an appellant to demonstrate error on the part of the Associate Justice, this is no longer clear. In Weber v Deakin University,[13] Zammit J made reference to the decisions of Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd[14] and Freeman v Rabinov,[15] and noted suggestions that an appeal may succeed in the absence of the demonstration of error by the appellant where the impugned Order works injustice.[16] In the present circumstances, it is unnecessary to decide this issue due to the subject matter of this appeal, namely costs, which, on the basis of the following paragraph of these reasons, is a ground of distinction from Weber v Deakin University and the authorities cited therein, and also due to the distinction which may be drawn on the basis of the requirement that leave be granted before an appeal against an Associate Justice's decision on costs be heard.

12 An appeal against an order made by an Associate Justice as to costs requires leave.[17] As the Victorian Court of Appeal found in Spotless Group Ltd v Premier Building and Consulting Pty Ltd,[18] a high threshold must be satisfied before leave is granted against a decision on costs, and a significant degree of deference to the trial judge's exercise of discretion is required:[19]

1. It is well established that an appellate Court will not, in the absence of strong reasons, interfere with the exercise of discretion by the Court below with respect to the question of costs. As Callaway JA said in Hanlon v Brookes:

It is almost invariably the case that the judge at first instance is better placed to deal with the costs after a long trial and counsel seeking leave ordinarily has a difficult task. The test is not whether we should have exercised the discretion in the same way as his Honour did but whether there was or were a ground or grounds on which he could reasonably do so.[20]

1. This Court may disturb the costs orders made below where an error in principle is identified,[21] where the judge acted on a manifestly erroneous view of the facts,[22] or where the award is manifestly unreasonable.[23] But the applicant must satisfy a high threshold for such a grant of leave. The test to be applied is not whether the Court of Appeal would have made the same order but whether there is a ground upon which the order by his Honour could reasonably be made.[24] Some manifest error must be exposed to take the case out of the ordinary situation in which, wherever a discretion is to be exercised, minds may differ on the result.[25] Ormiston JA recognised this high threshold in Transport Accident Commissioner v O'Reilly[26] observing that:

It is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its powers to award costs, if there be some basis for making an order other than the conventional order in favour of the successful party.

13 In accordance with r 77.06.02(5) of the Supreme Court (General Civil Procedure) Rules 2015 ("the Rules") the application for leave to appeal was heard together with the appeal.

14 In Mukhtar AsJ's reasons for the Costs Determination, his Honour identified significant difficulties in understanding the material put by Mr Raptis:[27]

As is apparent from my judgment, Mr Raptis, a litigant in person, saw fit to conduct his case on a lay assertion that the lease was 'illegal'. He burdened the defendants and the Court with a vast body of irrelevant, discursive and unintelligible material. He would not grapple with the issues or engage with the Court on them. He allowed himself to be diverted and obsessed with irrelevancies. This added to the burdens of the litigation for the defendants as they had to conduct the case partially by postulating or wondering what Mr Raptis might be trying to say. And it was the same for the Court.

15 The Associate Justice made reference to the High Court's finding in Neil v Nott that:[28]

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.

In a sense, the Court always has the burden of endeavouring to ascertain the rights of parties, and poor advocacy may simply indicate that the Court is less ably assisted in its ordinary task. Importantly, the assumption of this burden does not entail that the proceeding loses its adversarial quality. A judge hearing an appeal in these circumstances ought not to hawkishly survey the first instance decision in a search for error. As Ward JA (with whom Meagher and Barrett JJA agreed) found in Cicek v Estate of late Solomon "[a] duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her".[29] The burden remains on the litigant, whether adequately represented or not, to identify a deficiency in the decision which entails that a different conclusion ought to be reached.

16 This burden has not been discharged. In submission of the City, which I accept:[30]

The Plaintiff has not raised any matter which points to a finding that the costs order is wrong or attended with sufficient doubt to warrant it being reconsidered. Nor has the Plaintiff raised any matter which would support a decision by the Court that costs should not follow the event in the usual way.

Similarly, the Lessor noted that "Mr Raptis has not identified any error in his Honour's finding that costs should be awarded [to the Second Defendant] on an indemnity basis or any reason to overturn the finding".[31]

Question 1: Did his Honour err in finding at paragraph [62] of the Judgment that costs follow the event?

17 His Honour's finding, which is extracted above,[32] that costs should follow the event where an application for the striking out of the substance of the indorsement on an originating motion and for dismissal of proceedings succeeds, is uncontroversial at law. The Court has full power to determine by whom and to what extent costs are to be paid.[33] It is trite law that costs follow the event, and that a successful party should obtain the costs of the action.[34] There is no general rule or principle which applies to self-represented litigants which displaces this usual position in relation to standard costs orders.[35]

18 Mr Raptis' written submissions on this question, to the extent that they were comprehensible, were irrelevant and embarrassing, and attempted to reagitate the substantive matters which were determined by the Associate Justice. Out of Mr Raptis' written and oral submissions there arise two intelligible arguments, which were made without reference to particular appeal questions.

19 First, it was suggested that the costs orders constituted the acquisition of property otherwise than on just terms, in contravention of s 51(xxxi) of the Commonwealth Constitution. While the problems with this argument are numerous, it is sufficient to observe that as the "just terms" proviso in s 51(xxxi) merely operates as a limit on the legislative power of the Commonwealth and does not affect or limit the exercise of the power to make a costs award conferred by the Victorian legislation on which the Associate Justice relied.

20 Second, Mr Raptis argued that the award of costs against him infringed upon his property rights and human rights more generally. This allegation was not made with any specificity as to how his rights were breached or to what legal remedy he was consequently entitled. While allegations of human rights breaches are serious, it is not this Court's place to consider them unless their legal relevance is established. Even though the general position is that, with limited exceptions, human rights are not of themselves enforceable at law, like much of Australian law, the law of costs has developed in accordance with human rights principles. Indeed, it could be said that it is in furtherance of the defendants' rights not to be unfairly deprived of their property by way of being forced to defend unmeritorious litigation that they are entitled to their costs. Regardless, the Mr Raptis' argument here is embarrassing and without any discernible legal substance.

Question 2: Should costs follow the event either in part or in full?

21 Mr Raptis was wholly unsuccessful in his claim against both defendants. The relief sought by the City, being the striking out of the substance of the indorsement on the originating motion, was granted. The Lessor's application to dismiss the proceeding as against the Lessor was appropriately foreshadowed, issued promptly and thereafter granted.[36] As indicated above,[37] Mr Raptis' status as a self-represented litigant does not displace the usual rule and there are no other reasons why costs should not follow the event in full such as partial success by the plaintiff or the respondents' conduct of the proceedings.

22 Mr Raptis seemed to allege that the costs order was misleading and deceptive, an allegation which is again embarrassing and without any discernible legal substance. In my consideration of this and other allegations of a similar quality made by Mr Raptis, I have been guided by the High Court's statement Neil v Nott which is extracted above.[38] In a sense, the allegation that the costs order was misleading and deceptive is not obfuscatory, because it is plainly unsupported and irrelevant to the rights of parties. It may be put aside and it is not necessary to independently investigate whether it might possibly have some basis. Consequently, there is nothing to disturb the ordinary rule that costs should follow the event in full.

Question 3: Did his Honour err in finding in the Costs Determination that the plaintiff pay the second defendant's costs of its summons filed on 10 November 2016 and of its application for special cost orders on the indemnity basis?

23 In granting the lessor its costs on an indemnity basis, the Associate Justice, while acknowledging that other grounds existed for the making of the same Order, primarily relied on the fact that Mr Raptis' case was doomed to fail and that this ought to have been apparent to him:[39]

1. The lessor's application for indemnity costs is put on three bases -

(a) it made an open offer and a Calderbank type offer to Mr Raptis beforehand to withdraw on exchange for each party bearing their own costs, and as he has now fared worse in the result, it was unreasonable of him not to accept the offers;

(b) Mr Raptis commenced and continued the proceeding in circumstances where, properly advised, he ought to have known the Court had no jurisdiction to determine the proceeding, yet he persisted with a dismissive refusal to concede want of jurisdiction; and

(c) in bringing the proceeding and in his resistance to the application, Mr Raptis has contravened various provisions of the Civil Procedure Act, that is: s 18 (the requirement of a proper basis in making a response in a civil proceeding); s 24 (obligation to ensure costs are reasonable and proportionate), and s 25 (obligation to minimise delay).

...

1. Prior to making the application, the lessor made two offers to Mr Raptis. One offer was in open correspondence; the other was made 'without prejudice'. The open letter, dated 4 October 2016... invited him to withdraw the proceeding in exchange for which the lessor would bear its own costs. ...
2. On 11 October 2016, the lessor sent him a Calderbank-type letter which elaborated on the basis for the lessor's contention that this was a retail tenancy dispute under the Retail Leases Act and that such a dispute was within the exclusive jurisdiction of the VCAT. That letter offered, again, that he withdraw his proceedings in exchange for which the lessor would agree to bear their own costs. ...

1. I do not think this issue calls for a laboured analysis of the various obligations under the Civil Procedure Act. Allowances have to be made for a litigant in person. Telling a person with an intense sense of grievance that his case is hopeless is likely to be met with disdain or a greater determination. In this case, I think his case was bound to fail on the question of jurisdiction. It would have been of no disadvantage to Mr Raptis to concede and make his claim about the air ventilation system and the 'illegality' against the lessor in VCAT with the advantage of reduced costs and formality, especially as his case against the City, as I found, was couched in strange and legally incompetent terms that looked to future proceedings against the City.
2. I would prefer to rest my decision in granting costs on the indemnity basis on the recognised ground that Mr Raptis brought a hopeless case, would not heed the reasonable warnings given by the lessor and the City about its hopelessness, conducted the application in a way to not make his case any less hopeless and, I am bound to say, has imposed labours and expense on the lessor and I think it would be unfair to the lessor not to be able to recover its costs on the indemnity basis.

24 There is nothing to disturb the finding that Mr Raptis' claim against the lessor was doomed to fail as it was not justiciable in the Supreme Court of Victoria. Importantly, this issue of jurisdiction, at least in the instant case,[40] is not one on which reasonable minds could disagree. The Judgment, which is not directly appealed, correctly notes that the Retail Leases Act 2003 confers exclusive jurisdiction on VCAT to determine the dispute as between Mr Raptis as tenant and the Lessor, a conclusion which is inescapable in the present circumstances.[41]

25 The Victorian Court of Appeal observed that where a special costs order is sought on the basis that the plaintiff's action was doomed to fail, the plaintiff's knowledge of their prospects of success will be relevant:[42]

1. Costs may be ordered whenever it appears that an action has been commenced in circumstances where the applicant properly advised should have known it had no chance of success. When a litigant presses on where on proper consideration their case should have been seen to be hopeless, the discretion to make a special costs order may be enlivened. French J (as he then was) in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers Western Australia[43] considered that the discretion to award such costs would be enlivened when a party persisted, for whatever reason, in what should on proper consideration have been seen to be a hopeless case, and alluding to the presumption referred to by Woodward J in Fountain Selected Meats said that it was an unnecessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. But where the litigant did not recognise that its case was without merit a court may be disinclined to make a special costs order.[44] The Court must measure the litigant's conduct against the facts then known or which ought to have been known, the inquiries that the litigant ought reasonably to have made and the legal advice which the litigant ought reasonably to have obtained.[45] This exercise may be subject to some qualification in respect of a self represented litigant.

1. Where a case is without merit but other factors are not present, the circumstances may not be regarded as sufficient to justify an order for indemnity costs. Kirby P (as he then was) in Wentworth v Rogers (No 5)[46] said:

The respondent sought an order for costs on an indemnity basis, seeking thereby to be protected from the necessary solicitor and client costs incurred by him in resisting this unmeritorious claim on numerous occasions both in the Court of Appeal and before the Equity Division. Reference was made to the decision of Holland J in Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354. In that case Holland J held that, where an unsuccessful party had prolonged a trial by deliberately false allegations of fact, an appropriate order for costs might be made on an indemnity basis, save for costs unreasonably incurred by the successful party. That is the order which the respondent sought here. Although, as has now been found, this case was without merit, I am not convinced that it was brought for the purpose of prolonging the litigation. On the contrary, I am sure that the appellant, misguidedly, considered that it would be a speedy way to conclude the litigation. Furthermore, I do not consider that the appellant has been deliberately false with the Court nor that she has made allegations which she believes or knows to be false. It is true that some of the allegations made are scandalous, resting as they do on a most flimsy and unconvincing basis. All of the other allegations were not, in law, sufficient to give rise to the cause of action which the appellant sought to advance in her statement of claim. But consideration must be given to the fact that in Degmam the party criticised was legally represented whereas here the appellant has done her best, unaided, to find her way through a relatively unfamiliar area of the law, not without its complications. In all of the circumstances, I consider that it will be sufficient to make the normal costs order.

Thus there is some support for the view that in order for an indemnity costs order to be appropriate, more is needed than the mere prosecution of a case which was bound to fail.

26 As both the Court in Macedon Ranges Shire Council v Thompson[47] and Kirby P observed, special considerations seem to apply to indemnity costs orders against litigants in person. Hodgson CJ in Eq's observations in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd are also of assistance:[48]

I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

27 Yet that should not be understood as implying that indemnity costs will never be appropriate against litigants in person. After extracting the above passage in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd, Robson J in Vink v Tuckwell made the following observations:[49]

1. In Bhagat v Global Custodians Ltd,[50] the Full Court of the Federal Court (constituted by O'Loughlin, Whitlam and Marshall JJ) observed Hodgson CJ in Eq did not say that litigants in person always escape the consequence of indemnity costs and declined to interfere with the decision of the trial judge to order indemnity costs against the unrepresented litigant. These judgments were cited with approval by Kenny J in Ogawa v University of Melbourne (No 2).[51]
2. In Spalla v St George Motor Finance (No 8),[52] Kenny J said:
   1. From time to time the courts overcome their reluctance to order indemnity costs against a self-represented litigant: see, for example, Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275 per Kenny J.
3. Further in Salfinger v Niugini Mining (Australia) Pty Ltd (No 4),[53] Heerey J said as follows:[54]
   1. In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.

In Macedon Ranges Shire Council v Thompson, the Victorian Court of Appeal referred to the above paragraphs of Robson J's judgment, in addition to his earlier reference to Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd, as a convenient summary of the effect of the authorities dealing with circumstances in which a litigant in person might be subject to an order for indemnity costs.[55]

28 A similar position, on facts largely analogous to those of the present case, was expressed by Meagher JA in Quach v Health Care Complaints Commission (No 2),[56] where the plaintiff medical practitioner filed notices of motion seeking inter alia a stay of the Orders of NCAT and an extension of time for a merits appeal:[57]

1. On two occasions prior to the hearing of these motions, the [Medical] Practitioner was informed that his chances of successfully obtaining the relief sought in the underlying proceedings for judicial review were most doubtful. On 15 June 2015, the Registrar of the Court of Appeal advised the Practitioner that the Court may not make orders of the kind sought by him under s 69 of the Supreme Court Act 1970 (NSW), where a statutory right of appeal exists and has not been pursued. ...
2. On 18 June 2015, the solicitor acting for the Commission wrote to the Practitioner outlining why the first notice of motion was "misconceived and will not be granted by a Court". That letter addressed why it was said that the Court would not stay the decision of NCAT or extend the time for the bringing of an appeal to a date after the judicial review proceedings were determined. ...

1. Where indemnity costs are sought against a litigant in person, the Court ought to consider the competing interests identified by Hodgson CJ in Eq in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159. Allowances must be made in recognition of the difficulties faced by litigants in person and their lack of expertise. Equally, the "hardship and expense to other parties... [caused by] allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made" must be accounted for: at [13].
2. This Court has made orders against litigants in person for the payment of indemnity costs where their proceedings were "obviously doomed to fail" and the litigant maintained the proceedings after having been informed of that fact, or of a procedural defect in the formulation of their claim: Reimers v Health Care Complaints Commission [2013] NSWCA 366 at [23] per Barrett JA (Macfarlan and Meagher JJA agreeing). See also Martin v State of New South Wales (No 6) [2011] NSWCA 281 at [8].
3. Whilst the decision of the Practitioner to file the notices of motion might have been excused on account of his lack of legal expertise, no such allowance should be made after their difficulties were brought to his attention in June 2015. Notwithstanding the matters raised with him, the Practitioner persevered. In these circumstances, his conduct meets the description of the type of "delinquency" said to justify an order for the payment of costs on an indemnity basis: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [44].
4. The Commission by its letter of 18 June 2015 informed the Practitioner of the unlikelihood of his success in pursuing his claims for interlocutory relief and of its intention to seek an order for indemnity costs if he continued to press those applications. For that reason any costs incurred by the Commission from that date and in relation to the notices of motion should be assessed on an indemnity basis.

Significantly, the Court ordered that only costs incurred after 18 June 2015 should be paid on an indemnity basis, with costs prior to that date to be paid on the ordinary basis.

29 The Associate Justice did not specifically refer to the reluctance of courts to order indemnity costs against self-represented litigants or the authorities establishing that reluctance, and it does not appear that those authorities were brought to his attention.[58] However, his Honour did, in the second sentence of paragraph 16 of the Costs Determination, which is extracted above,[59] expressly note that allowances were made for Mr Raptis as a result of his being a litigant in person. As such, it is clear that the Associate Justice did make specific and appropriate allowance for the fact that Mr Raptis was a self-represented litigant; consistently with the authorities to which reference has been made.

30 Although it was not a position specifically advanced by Mr Raptis, it could be suggested that in light of Quach, indemnity costs might have been awarded only for the time after Mr Raptis was informed by the lessor's solicitors that his claim was bound to fail in their letter of 4 October 2016. Despite this, I am satisfied that it would be inappropriate to disturb the award of costs on an indemnity basis before the letter of 4 October 2016 for two reasons.

31 First, as outlined above at [12] with reference [60] Spotless,60 the circumstances in which a costs order of an Associate Justice will be disturbed are extremely limited. Immediately following the comments in Neil v Nott extr[61]ted above,61 the High Court reiterated this orthodox approach to appeals against exercises of[62]iscretion:62

It is necessary to focus on the material placed before [the Trial Judge] and to ascertain whether, on that material, a refusal to extend time bespeaks an error of principle affecting the exercise of the discretion to extend time.

While Quach might support a different approach, it by no means follows that the approach taken below was not within the Associate Justice's discretion or that it was wrong in principle, and in the context of a decision on costs, this is so notwithstanding the authorities referred to in paragraph [11] above.

32 Secondly, an alternative basis for the award of indemnity costs for the whole of the proceeding exists, being the breaches of the Civil Procedure Act 2010 by Mr Raptis. These breaches are apparent from the Court file, and are evident in the conduct recounted by the Associate Justice in the Costs Determination.[63] Consequently, while I would grant leave to appeal on this question, having regard to Spotless, I am satisfied that the costs decision was a lawful exercise of the Associate Justice's discretion with which this Court should not interfere, and thus that the appeal on this question should be dismissed.

33 Mr Raptis has repeatedly complained that he has been deprived of a jury trial, to which he says he is entitled. Before me, it was said:[64]

HIS HONOUR: And you've been pressing all along for jury trial and raising all sorts of submissions in that respect, haven't you?

MR RAPTIS: Yes, because I'm trying to protect my rights here and the other - the other matter that has been raised, Your Honour, throughout this ten months, advancing a lot of proceedings.

And in the Notice of Appeal, among other documents filed with the Court, Mr Raptis placed reliance on an alleged right under the Constitution to a jury trial:[65]

1. I seek to exercise my Constitutional Right as a Citizen under;

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 80

Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

... to appeal the Order on costs of the second defendant and have a 'Trial by jury' based upon the facts and documentation submitted...

34 While it is clear that Mr Raptis does not have a right for either this appeal or the hearing before the Associate Justice to have proceeded before a jury, it may be of assistance to discuss the historical and present role of juries in civil litigation.

35 The trial of civil actions by judge and jury is a practice dating back to at least the Magna Carta.[66] To the extent that it continues to be available in the State of Victoria, it must be understood in the context of its history. Juries have been said to have "sound horse sense"[67] and the alleged advantage of being "swayed by sympathy" rather than being vulnerable to the alleged judicial weakness of being "swayed by too purely legal and technical considerations".[68] Regardless, with reforms across Australia reducing the scope of trials that may be heard by jury, the prevalence of civil juries has waned. In 2002, one Justice of the New South Wales Court of Appeal recalled as follows:[69]

Up until 1965, virtually every civil case at common law in the New South Wales Supreme Court was heard by a judge and a jury of four. I can remember even running an ex parte case against a defaulting tenant for damages before a jury. (The judge's summing up was something like this, "Well, gentlemen, you've heard the uncontradicted evidence that the defendant was in default of rent for 30 weeks at £500 per week and has cost the landlord expenses of £3000 in evicting him, so I suppose that you'll be bringing in a verdict for the plaintiff for £18,000." The foreman replied, "Yes, Your Honour, we find a verdict for the plaintiff for £18,000": and that was that.)

Thus while the historical application of juries is relevant, there have been some more obvious changes.

36 Kirby and Callinan JJ, in their minority judgment in Gerlach v Clifton Bricks Pty Ltd, provided a summary of the history of civil juries, which gives the context in which the discretion under the Rules must be exercised:[70]

1. In England, for more than five hundred years, jury trial was commonly observed in civil cases. There were some exceptions, principally in the "very limited classes of cases assigned to the Chancery Court".[71] Such cases apart, trials before juries were very common, indeed standard. This fact, like other features of English legal practice, is reflected in the Constitution of the United States which still provides for such jury trials.[72]
2. Following a report of the common law commissioners in England in 1853, and notwithstanding the passage in the 1870s of the Judicature Acts, the right to jury trial was substantially maintained for contested issues of fact in civil causes. Only the manpower shortage due to the First World War led, in 1918, to a temporary interruption.[73] When in 1933 the right to jury trial of civil causes was substantially restored in England[74] provision was made, nonetheless, for a general discretion in a judge to determine whether the trial is to be "with or without a jury".[75] It was because the legislation was so stated that the judicial power to dispense with the jury in England was sometimes inaccurately described as an absolute one.[76] Certain exceptions were preserved for trial by jury in so-called "reputational" cases. Moreover, the judge was empowered to order that any matter requiring prolonged examination of documents and so forth might be tried by judge alone.[77]
3. Partly because of the language of the legislation under which civil juries were revived in England and partly because of attitudes that had developed during the interregnum following their abolition in that country, judicial elaborations of the applicable legislation introduced in England notions that an applicant for jury trial had to show "special circumstances". This was so although such requirements were not, as such, part of the legislative prescription.[78] The judicial approach in England also appears to have been influenced by judicial policy. Until very recently juries were commonly thought to be unfavourable to defendants and insurers; if judges decided damages actions, there was a greater potential for consistency than if juries did so.[79] In this way, following the interruption to longstanding practice, judicial attitudes to jury trials of civil causes in England began to change.
4. With the establishment of the Australian colonies, it was natural for the free settlers from England to desire jury trial both for criminal and civil cases. The delay in introducing that mode of trial was a major source of friction with the colonial governors. The first provisions for trial by jury in civil causes, both in New South Wales and Van Diemen's Land, have been described elsewhere.[80] Once juries were introduced, at least so far as New South Wales was concerned, they became the ordinary mode of trial. Thus "all actions at law and civil issues of fact... and all damages and sums of money recoverable" were to be assessed by jury.[81]
5. Provision was eventually made for the parties to agree to dispense with a jury in proceedings before the Supreme Court of the colony.[82] Even then, a judge might at any time order that all or any of the issues of fact be tried with a jury "if it appears to him to be expedient".[83]

37 It may be useful to add that jury trials were first introduced to Australia by section VI of the New South Wales Act 1823 (Imp) which provided in part:[84]

... Provided always, that if the Parties, Plaintiff and Defendant in any such Action, shall be desirous of having any such Issue or Issues of Fact as aforesaid tried by a Jury of Twelve Men, and shall concur in an application for that purpose to the Judges of the said Supreme Courts respectively, then and in every such Case such Issue or Issues of Fact shall be tried by a Jury, under the Direction of the said Judges respectively...

This Act's full title is "An Act to provide... for the better Administration of Justice in New South Wales and Van Diemen's Land, and for the more effectual government thereof...", and the express inclusion of civil jury trials in such an act indicates the importance that they were historically afforded. Even as civil juries fall out of favour in other jurisdictions, their role in Victoria should not be diminished by mere changes in attitude.[85]

The Availability of Civil Jury Trials under the Rules

38 Although this question does not arise on the present facts, because the Supreme Court of Victoria lacks jurisdiction over retail tenancies disputes,[86] rule 47.02 of the Rules sets out the circumstances in which a trial may proceed by judge and jury:

1. A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if -
   1. the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
   2. the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.
2. Any other proceeding shall be tried without a jury, unless the Court otherwise orders.
3. Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

39 It is apparent on a natural reading of r 47.02(2) of the Rules, that despite the failure by a plaintiff to give timely notice of a preference for a jury trial, the Court retains a residual discretion to order that the mode of trial be by judge and jury. Indeed, this was the approach taken by J. Forrest J in Matthews v SPI Electricity Pty Ltd (Ruling No 8):[87]

In my opinion, the words "Any other proceeding" in r 47.02(2) must be read in the context of the signification provided for under r 47.02(1). The reference to "other proceeding" is not a reference to a proceeding not founded in tort or contract, but rather to a proceeding in which the signification of a jury trial pursuant to r 47.02(1) has not been invoked by either party.

40 Section 49 of the Civil Procedure Act 2010 guides the exercise of discretion under r 47.02 of the Rules and relevantly provides:

s 49 Court's power to order and direct trial procedures and conduct of hearing

(1) In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.

...

(3) Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to -

...

(i) the place, time and mode of trial...

41 The exercise of discretion will be influenced by the substantive law relied upon by the parties. For example, as Bell J observed in Pasqualotto v Pasqualotto:[88]

[T]he applicable standard of care is the reasonable standard of care which is the foundation of the law of negligence. Juries are particularly well-suited to carrying out the function of applying that standard of care as it involves consideration of what is reasonable according to the values and experience of ordinary members of the community. Trial by jury gives effect to the legitimate expectation of parties... in proceedings founded on tort (including breach of statutory duty) that evaluative determinations of this kind will be made by persons who, as nearly as possible, embody those values and that experience. In such cases, trial by jury enhances public confidence in the administration of justice because it gives representatives of the community responsibility for applying a fundamental legal standard in which the whole community has an interest and on which ordinary people are well qualified to speak.

Given this Court's patent lack of jurisdiction to hear a retail tenancy dispute, it is unnecessary to consider the benefits and detriments of a jury trial for the applicable substantive law.

42 Ordinarily, the failure to indicate on a writ that the plaintiff wishes the trial to proceed with a jury entails that the plaintiff be taken to desire trial without a jury.[89] This is by no means a modern invention of civil procedure, as Lopes LJ said in Jenkins v Bushby "where it is desired the trial should be by a Judge with a jury, this mode of trial must be asked for".[90]

43 In determining whether discretion ought to be exercised under r 47.02(2) of the Rules, jurisprudence from other jurisdictions where the entitlement to trial by jury is governed by different principles must not be applied directly. Section 39 of the Federal Court Act 1976 (Cth) provides that "[i]n every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury". While this language has a similar literal effect as that in 47.02(2) of the Rules, it exists in a different legislative context. The test for whether a trial by jury ought to be ordered under the Federal Court Act 1976 (Cth) seems to be whether the applicant has "establish[ed] that, in relation to the suit in question, the ends of justice render it expedient to depart from the norm".[91] By contrast, Victoria retains a prima facie entitlement to trial by jury in cases founded on contract and in tort. As outlined above, that entitlement will not be enjoyed in such cases if the applicant does not comply with r 47.02(1) of the Rules, unless the Court orders otherwise. Thus it is clear that the Victorian approach will be informed by significantly different considerations because the applicable law does not have the same wholesale rejection of jury trials which is found in the federal legislation.

44 The relevant considerations were set out by J. Forrest J in relation to an application by a defendant that the trial proceed by judge and jury nine months after the expiry of the period in which the defendant could have exercised its prima facie entitlement to elect for a jury trial:[92]

A Court may, at any stage of a proceeding, direct a trial with or without a jury if it is satisfied that it should do so.[93]

The onus in persuading a Court to dispense with the mode of trial determined by the operation of the rules rests upon the party making that application. A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court.

...

The principles I have set out previously make it clear that once a party has chosen the mode of trial in accordance with the rules, then that mode of trial has been regularly invoked. There must be a special reason to disentitle, or deprive that party of the mode of trial it has chosen. This, it seems to me, is particularly so where a case has proceeded for nearly nine months without any suggestion that it be conducted in a different form.

45 Keogh J applied these principles in Marburg v Aldred and found that the following factors were relevant to the exercise of discretion under r 47.02(2):[94]

(a) The plaintiff chose, as the mode of trial, judge alone. He should not be lightly deprived of that choice.

(b) The proceeding had been on foot for approximately 16 months before the first defendant made its application. The length of that delay weighs against the first defendant's application.

(c) No adequate explanation has been proffered by the first defendant for his delay in making the application.

(d) Steps have been taken in the proceeding on the basis of an understanding that trial would be by judge alone.

(e) The plaintiff would likely suffer prejudice if the application were granted, because the trial would thereby be prolonged.

While factors (b)-(e) are relevant to the exercise of that discretion, it is troublesome to place weight upon the plaintiff's choice of the mode of trial when the defendant is entitled under the rules to have the matter heard by judge and jury. The regime established under the Rules is asymmetrical in that either party has the entitlement to elect that the trial be by judge and jury and, if the election is made in accordance with r 47.02(1) of the Rules, that election will prima facie trump another party's preference that the trial be by judge alone. In this way, it is inherent in the regime that the preference for a jury trial is given more weight than the preference that a trial be by judge alone. Given this asymmetry, the question arises as to whether a logical basis for denying a party's preference that a trial be by judge and jury can be found, absent some prejudice against which a respondent to an application under r 47.02(2) seeks protection.

46 The answer ultimately lies in the balance of r 47.02 of the Rules. The rule gives priority to a preference for a trial by judge and jury only where that preference is given in accordance with the rule. Otherwise, the onus is on the party seeking that the trial be heard with a jury to establish that mode of trial is more appropriate. Yet while this burden exists, and may be significant, that does not entail that any weight should be placed upon the initial choice by the plaintiff that the trial be by judge alone as the Rules, by allowing this initial choice to be trumped, show it to be of little significance. This may of course be academic, as it will not detract from the burden that must be discharged by the party seeking trial by judge and jury.

47 The purpose of the requirement in r 47.02(1)(a) of the Rules that the plaintiff endorse a preference for trial by jury on the writ is to ensure that other parties and the Court do not incur prejudice or unnecessary expense as a result of uncertainty or late notice regarding the mode of trial. In light of this purpose, it might be said that the Court ought not to consider the mode of trial afresh by reference to expedience and the ends of justice. Instead, the focus may perhaps be on whether sufficient prejudice would flow from the change in the mode of trial to justify the denial of the request to a trial by judge and jury. This approach is supported by the express requirement under s 49(3)(i) of the Civil Procedure Act 2010 that the overarching purpose be considered. While the sufficiency of the prejudice which would flow will turn on a number of factors, the threshold is not high, but must contemplate the legislature's continued preference that plaintiffs have the option of trial by jury in certain cases.

48 The burden on the party belatedly seeking a trial by jury may be ameliorated in part by the historical recognition of a right to trial by jury, to the extent that such a right exists and has not been expressly abrogated by legislation. Where a right exists at common law, there is a presumption that subsequent legislation preserves that right. As such, if a positive right to a civil jury exists at common law, it could be said that, in the absence of prejudice to the other party, very little need be established by a party seeking a jury under r 47.02(2) of the Rules.

Choice of a mode of trial: a right, or something less?

49 Where a party requests a jury trial in accordance with the rules, there is "a prima facie entitlement to trial by jury, and ... the party should not be deprived of such an entitlement in the absence of good cause".[95] The normal cost savings that follow from a trial by judge alone do not amount to such a good cause,[96] nor do other advantages inherent in dispensing with juries though this is to the chagrin of some. As Judge Christie stated in Gerlach:[97]

I'll tell you straight out, I would do away with all civil juries in the State, instantly and retrospectively. I think it leads to, quite frankly, perfectly obvious miscarriages of justice in these courts every week, every single week... I've been astounded here in the last six weeks calling this list, how many plaintiffs seek juries. I think it's prima facie evidence of professional negligence myself, for a plaintiff to seek a jury. ...

His Honour went on qualify these remarks in their application to the case before him:[98]

I think that the courts have to take some steps, where it is appropriate, to attempt to minimise the time occupied in cases and to attempt to minimise the enormous cost of litigation . . . It goes without saying the case would, of course, be more expeditiously dealt with without a jury, but that is so in every case and that cannot be a ground for granting the application.

50 In Gerlach, Gaudron, McHugh and Hayne JJ suggested that statements by Judge Christie might be thought to have "indicated an inappropriately firm predisposition against trial of civil actions by a jury".[99] The availability of civil juries is ultimately a matter for Parliament and judges are duty-bound to exercise their discretion on the basis of the law and the facts. Thus to the extent that considerations are inherent to trials with juries and do not turn on the facts of a particular case, they ought not to be considered.

51 The nature of the right to a civil jury is further diminished by the lack of relief for denial of that right. Where a party is both unsuccessful in obtaining a jury trial despite making the appropriate request under the rules and unsuccessful at trial before a judge alone, the results of that trial will not be impugned unless the appellant can point to "some substantial damage by reason of the matter being tried before judge alone".[100] As the majority of the High Court found in Gerlach:[101]

The proposition that trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice is a startling proposition. It is true that, assuming the order dispensing with a jury should not have been made, a party to litigation has been wrongly deprived of the mode of trial which it desired. But that party has had a trial which, for present purposes, must be assumed to have been a trial according to law. No error in the conduct of that trial (as distinct from the mode of trial) has yet been established. And in any event the trial was by one of the modes of trial prescribed for disposition of litigation of this kind.

[emphasis omitted]

Thus to the extent that there is any right to a jury trial, which is doubtful, it is ephemeral and incapable of vindication, for if it is not granted at first instance, it may not be enforceable upon appeal.

52 The history of civil juries undermines the claim that there is a positive right to that mode of trial. While civil trials were traditionally by jury, this was as a result of custom, not a right enjoyed by parties. In this way, the principle of interpretation by which statutes are presumed to be concordant with the common law will not allow a right to a civil jury to persist into the modern regime governing civil juries - there was never a right capable of persisting.

53 In Matthews,[102] the writ did not seek trial by jury. The substituted representative plaintiff later sought, after the proceeding had been set down for trial, an order that the mode of trial be by judge and jury. The Court affirmed that no right to a civil trial by jury arose at common law:[103]

The so-called 'right' to jury trial repeatedly emphasised by counsel and said to have been handed down by English law over many centuries is not strictly relevant nor accurately described...

This is not the occasion on which to embark on the long, complex and somewhat uncertain history of jury trial. To speak of it, however, as some kind of long held civil right savours more of forensic fancy than of historical accuracy. Jury trial was less a 'right' or 'jus' than an imposed mode of trial.

Thus the right of a civil litigant to a jury trial does not, to the extent it exists, arise out of the common law, but rather out of statute and the applicable court rules. In Matthews, where the time for the exercise of that right as it existed under the rules had passed, the residual discretion as guided by the historic availability of jury trials did not entitle a party to a jury trial.

54 This issue was recognised by in Gerlach by Kirby and Callinan JJ's minority judgment's analysis of Darrel Lea (Vict) Pty Ltd v Union Assurance Society of Australia Ltd.[104] In Darrel Lea, the plaintiff sought a jury trial after having first opted for trial by judge alone - the plaintiff could not rely upon the then expired right to a trial by jury so the Court's discretion in determining the mode of trial was at large.[105] In that case, it was said on appeal that substantial injustice did not arise as a result of the trial proceeding by judge alone even if the correct mode was trial by judge and jury because both modes of trial were lawful,[106] which was the approach of the majority in Gerlach. Yet Kirby and Callinan JJ found that since the appellant had a right to trial by jury, which they had exercised, they were entitled to a trial by jury.[107] This supports the conclusion that the characterisation of the parties' choice of mode of trial as a "right"[108] is the minority view.

55 Section 80 of the Commonwealth Constitution (which is noted in the extracted portion of Mr Raptis' Notice of Appeal but which is set out again here for emphasis) enshrines the right to trial by jury for certain crimes:

Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

56 Commentaries on this section assume what is obvious from its words - the section does not give rise to a right to civil jury trials.[109] What is more, the prevailing position seems to be that s 80 is inapplicable in the absence of an indictment, notwithstanding that Parliament has unfettered discretion as to whether any given offence requires an indictment.[110] There is plainly no indictment here. Thus Mr Raptis' reliance on this section of the Commonwealth Constitution is wrong-headed.

57 For the preceding reasons, the award of costs as ordered was within the Associate Justice's discretion and ought not to be disturbed. Leave to appeal is denied on the first and second appeal questions, and were leave to be granted on those questions, the appeal would be dismissed. Leave is granted on the third appeal question and the appeal on that question is dismissed.

58 The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs and will hear any submissions from the parties in respect of this issue.

[1] Raptis v City of Melbourne [2017] VSC 247, [5] ("the Judgment").

[2] Raptis v City of Melbourne [2017] VSC 247, [2].

[3] Raptis v City of Melbourne [2017] VSC 247, [62].

[4] Order made by the Honourable Associate Justice Mukhtar (11 May 2017).

[5] See Order made by the Honourable Associate Justice Mukhtar (30 May 2017).

[6] Notice of Appeal Against Order of Associate Judge (29 May 2017), [1].

[7] Notice of Appeal Against Order of Associate Judge (29 May 2017), [11].

[8] Notice of Appeal Against Order of Associate Judge (29 May 2017), [5].

[9] Notice of Appeal Against Order of Associate Judge (29 May 2017), [10].

[10] Notice of Appeal Against Order of Associate Judge (29 May 2017), [3], [24]-[28].

[12] Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238, [5]; Oswal v Carson [2013] VSC 355, [11]; and see generally regarding the nature of such appeals Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) [2014] VSC 75; (2014) 98 ACSR 243 at 245-9, [8]-[18].

[13] Weber v Deakin University [2016] VSC 147 ("Weber v Deakin University").

[14] [2014] VSC 317.

[15] [1981] VicRp 52; [1981] VR 539.

[16] Weber v Deakin University [2016] VSC 147, [26]-[31], but see [25].

[17] Supreme Court Act 1986 s 17A(2).

[18] Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 ("Spotless").

[19] Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115, [10]-[11].

[20] (1997) 15 ACLR 1626 at 1632.

[21] McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 at 455 (Isaacs J).

[22] See, for example, Whiteman v Johnson [1995] VicRp 81; [1995] 2 VR 637 at 639-40 (Phillips JA); ETNA v ARIF [1999] VSCA 99; [1999] 2 VR 353.

[23] ETNA v ARIF [1999] VSCA 99; [1999] 2 VR 353 at 378; Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 668.

[24] ETNA v ARIF [1999] VSCA 99; [1999] 2 VR 353 at 378.

[25] Wentworth v Rogers [No 3] (1986) 6 NSWLR 642 at 644.

[26] [1998] VSCA 106; [1999] 2 VR 436 at 457.

[28] [1994] HCA 23; (1994) 68 ALJR 509 at 510 ("Neil v Nott").

[29] [2014] NSWCA 278, [130].

[30] First Defendant's Outline of Submissions on Appeal (12 July 2017), [23].

[31] Second Defendant's Submissions in Response to Notice of Appeal (14 July 2017), [31].

[32] Raptis v City of Melbourne [2017] VSC 247, [62] extracted above at [4].

[33] Supreme Court Act 1986 s 24(1).

[34] Vink v Tuckwell [2008] VSC 316; (2008) 67 ACSR 547.

[35] See e.g. Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159, [13]; cited with apparent approval in Vink v Tuckwell [2008] VSC 316; (2008) 67 ACSR 547 at 565 [104]; Macedon Ranges Shire Council v Thompson (2009) LGERA 41 at 50 [17].

[36] Raptis v City of Melbourne [2017] VSC 247, [53].

[39] Order made by the Honourable Associate Justice Mukhtar (30 May 2017).

[40] Cf IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 and the grant of leave to appeal at [3].

[41] Raptis v City of Melbourne [2017] VSC 247, [40]-[52].

[42] Macedon Ranges Shire Council v Thompson [2009] VSCA 209; (2009) 170 LGERA 41 at 49 [15], 52 [21].

[43] J-Corp Pty Ltd v Australian Builders Labourers' Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301.

[44] Hurstville Municipal Council v Connor (1991) 24 NSWLR 724; Monitronix Ltd v Michael (1992) 7 WAR 195; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 at [18]; Clarke v Deputy Commissioner of Taxation [2002] FCA 75; (2002) 50 ATR 173.

[45] Aljade and MKIC v OCBC [2004] VSC 351.

[46] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534.

[47] Macedon Ranges Shire Council v Thompson (2009) LGERA 41 ("Macedon Ranges Shire Council v Thompson").

[48] [2000] NSWSC 159, [13] ("Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd").

[49] [2008] VSC 316; (2008) 67 ACSR 547 at 566 [105]-[7].

[50] [2002] FCA 223 at [57]-[60].

[51] [2004] FCA 1275.

[53] [2007] FCA 1594.

[55] Macedon Ranges Shire Council v Thompson [2009] VSCA 209; (2009) 170 LGERA 41 at 49-50 [17].

[56] [2015] NSWCA 311 ("Quach").

[57] [2015] NSWCA 311, [6]-[7], [9]-[12].

[58] See Second Defendant's Submissions in Support of Indemnity Costs (Pursuant to Orders of Associate Justice Mukhtar made on 11 May 2017) (19 May 2017).

[60] Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115.

[61] See above at [15].

[62] Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509 at 510.

[65] Notice of Appeal Against Order of Associate Judge (29 May 2017), [3].

[66] J C Holt, Magna Carta (Cambridge University Press, 2nd ed, 1992) 10.

[67] Commons Debates, 5th Series, Vol. 277, 1786 (Lord Advocate) as cited in Herbert Evatt, 'The Jury System in Australia' 10 Australian Law Journal 49S at 51.

[68] Commons Debates, 5th Series, Vol. 277, 1764-5 (Mr Macquisten) as cited in Herbert Evatt, 'The Jury System in Australia' 10 Australian Law Journal 49S at 51.

[69] Peter Young, 'Abolition of Civil Juries' 76 Australian Law Journal 83, 83.

[70] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 491-2 ("Gerlach").

[71] Ford v Blurton (1922) 38 TLR 801 at 805; cf Ward v James [1966] 1 QB 273 at 290.

[72] United States Constitution, VIIth Amendment: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...".

[73] Ford v Blurton (1922) 38 TLR 801 at 805.

[74] By the Administration of Justice (Miscellaneous Provisions) Act 1933 (UK).

[75] Administration of Justice (Miscellaneous Provisions) Act 1933 (UK), s 6.

[76] Ward v James [1966] 1 QB 273 at 291-293, referring to Hope v Great Western Railway Co [1937] 2 KB 130.

[77] Administration of Justice (Miscellaneous Provisions) Act 1933 (UK), s 6.

[78] See Watts v Manning [1964] 1 WLR 623; [1964] 2 All ER 267; Hennell v Ranaboldo [1963] 1 WLR 1391; [1963] 3 All ER 684; Sims v William Howard & Son Ltd [1964] 2 QB 409.

[79] cf Pambula (1988) 14 NSWLR 387 at 396.

[80] Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 488-490; Henchman, "The New South Wales Jury of Four Persons" (1959) 33 Australian Law Journal 235.

[82] Supreme Court Procedure Act 1900 (NSW), s 3(1).

[83] Supreme Court Procedure Act 1900 (NSW), s 3(2).

[84] As reproduced in New South Wales Law Reform Commission, Imperial Acts and Documents Relating to New South Wales (1973) 7.

[85] See for a background on Civil Juries in Victoria, Victorian Law Reform Commission, Jury Empanelment, Report No 27 (2014) 8-12.

[86] Retail Leases Act 2003 s 89(4).

[87] [2012] VSC 318; (2012) 35 VR 643 at 650 [44] ("Matthews") and see the authorities cited thereafter at 651-2 [45]-[51].

[88] [2013] VSC 608 at [8].

[89] Supreme Court (General Civil Procedure) Rules 2015 r 5.08(2).

[90] [1891] 1 Ch 484 at 492.

[91] Comcare v John Holland Rail Pty Ltd [2010] FCA 981; (2010) 189 FCR 173 at 178 [22].

[92] Deka v Johns [2009] VSC 296, [6](d)-(e), [13].

[93] See Pezzimenti v Seamer [1995] VicRp 42; [1995] 2 VR 32, 38, 40.

[94] [2016] VSC 565, [62]-[63].

[95] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249 at 259-60 [39].

[96] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249 at 260-1 [43].

[97] Transcript of Gerlach v Clifton Bricks Pty Ltd (Unreported, District Court of New South Wales, Judge Christie, 15 May 1998) lines 154-65 as cited in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 488 [22].

[98] Transcript of Gerlach v Clifton Bricks Pty Ltd (Unreported, District Court of New South Wales, Judge Christie, 15 May 1998) lines 154-65 as cited in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 489 [24].

[99] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 485 [10].

[100] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249 at 262 [52].

[101] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 485 [11].

[102] [2012] VSC 318; (2012) 35 VR 643.

[103] [2012] VSC 318; (2012) 35 VR 643, fn 5, citing Altmann v Dunning [1995] VicRp 41; [1995] 2 VR 1 at 5-6.

[104] [1969] VicRp 50; [1969] VR 401 ("Darrel Lea").

[105] [1969] VicRp 50; [1969] VR 401.

[106] [1969] VicRp 50; [1969] VR 401 at 410.

[107] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 501.

[108] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 501 [62] (emphasis in original).

[109] See e.g. James Stellios, Zine's The High Court and the Constitution (6th ed, 2015) 614-6; Gabriel A Moens and John Trone, Lumb & Moens' The Constitution of the Commonwealth of Australia (6th ed, 2001) 282-5.

[110] Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, 396-7, [23]-[24] and the authorities cited there; Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248; and see Amelia Simpson and Mary Wood '"A Puny Thing Indeed" - Cheng v The Queen and the Constitutional Right to Trial by Jury' [2001] FedLawRw 5; (2001) 29(1) Federal Law Review 95.