Appellant v Respondent

2 I have since received written submissions on behalf of the respondent dated 2 May 2016 ('respondent's submissions') and written reply submissions on behalf of the appellant dated 3 May 2016 ('appellant's submission').[1] Contained within the appellant's submissions is her application for 'reasonable costs of, and incidental to, the Supreme Court proceedings'. It is not entirely clear to me whether the scope of this application extends to the costs of the original summary contest in the Magistrate's Court of Victoria ('Magistrates' Court proceeding'). I note that the appellant did not make any specific submissions addressing the Magistrates' Court proceeding costs, and did not respond to the respondent's submissions on these.

3 By written submission, the respondent contends that no costs should be awarded in respect of the Magistrate's Court proceeding, but does not oppose the award of 'just and reasonable' costs in respect of the appeal proceeding in this Court ('appeal proceeding'). For reasons that I shall return to, it is not necessary to set out the respondent submissions on the Magistrate's Court proceeding costs in great detail. In summary, the respondent argues that the manner in which the appellant's case was advanced and conducted at the Magistrates' Court led to the Magistrates' Court proceeding being 'unduly prolonged, overly complicated and litigated primarily on the basis of erroneous legal issues'[2].

4 Regarding the appeal proceeding, the respondent submits that the Court ought, in determining just and reasonable costs, take into account that the appellant filed extensive written submissions in support of numerous grounds of appeal that were ultimately abandoned or reformulated at the hearing. The respondent claims to have incurred 'costs thrown away' as a result of the considerable time it spent preparing submissions in response to grounds that were ultimately not pursued. The respondent also submits that the matter has not been finally determined in the appellant's favour; and that the appeal succeeded on a basis wholly unconnected to the merits or strength of the prosecution case against the appellant at the Magistrates' Court.

5 The appellant provided brief reply submissions, contending in summary that the purpose of costs is to indemnify a successful party, rather than to punish an errant party. As the appellant succeeded completely in her appeal, she is therefore entitled to be indemnified for the costs of that appeal, and none of the costs submissions advanced by the respondent warrant departure from the usual rule.

6 Section 408 of the Act provides that the costs of, and incidental to, an appeal under s 272 are in the discretion of the Supreme Court, and the Supreme Court has full power to determine by whom and to what extent the costs are to be paid. The discretion is similar to the Court's broad, unfettered discretion in the awarding of costs in civil proceedings, pursuant to s 24 of the Supreme Court Act 1986,[3] and it is my view that the principles that guide the exercise of that discretion are largely transferable.[4]

7 In civil proceedings, costs ordinarily follow the event.[5] Despite this general rule, there is significant flexibility in determining the question of costs.[6] In particular 'the Court is entitled to examine the realities of the case and to do 'substantial justice' as between the parties on matters of costs.'[7] Orders apportioning costs are frequently made and, when this occurs, the apportionment is primarily 'a matter of impression and evaluation'[8] having considered, inter alia, the matters upon which parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.[9]

8 As I have indicated in [2] above, it is not clear to me whether or not the appellant has made an application for the costs of the Magistrates' Court proceeding. I note that her application is in the language of s 408 of the Act. It is my view that the most appropriate course is to limit the order I shall make to the costs of the appeal proceeding before me, being number S CI 2015 01879. I do not intend for my order to preclude the appellant for applying, to the Magistrate who hears the remitted proceeding, for the costs of the original Magistrates' Court proceeding (D12177289), at the conclusion of the remitted matter.

9 In my award of costs for the appeal proceeding, I take into account the form of the appellant's notice of appeal and written submissions. The notice of appeal canvased multiple grounds that were not relied upon at the hearing of the appeal. I was strongly critical of the written submissions in my judgment on the appeal.[10] Although counsel for the appellant did contract a number of the alleged grounds into to the single ultimately successful ground, this contraction did not occur until the hearing before me. In my view, the appellant ought not be awarded costs for written submissions that were singularly unhelpful.

10 Notwithstanding these factors that mitigate against a full award of costs to the appellant, the fact remains that the appellant has succeeded in this appeal, and the order of the Magistrates' Court has been quashed. In my view, the appellant ought recover the large majority of her costs. I have reduced her entitlement to reflect the matters that I have referred to in paragraph [9] of these reasons.

11 Taking these factors into account, I propose to order that the respondent pay 80 per cent of the appellant's costs of the Supreme Court of Victoria appeal proceeding, to be taxed at the standard basis, in default of agreement.

[1] Both sets of written submissions have been retained on the Court file.

[3] Lombardo v Bahnan (No 2) [2014] VSC 438, at [3].

[4] I note the principles set out by the Court of Appeal at [10] in Cheng v Chan [2009] VSCA 233 being a non-exhaustive list of principles relevant to the determination of costs in civil matters.

[5] Oshlack v Richmond River Council [1998] HCA 11; (1988) 193 CLR 72.

[6] Cheng v Chan [2009] VSCA 233 at [10(2)], citing Spotless Group Limited v Premier Building and Consulting Pty Ltd and Northern Suburban Properties Pty Ltd [2008] VSCA 115, [14].

[8] Cheng v Chan [2009] VSCA 233 at [10(5)], citing Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114, [5].

[9] Cheng v Chan [2009] VSCA 233 at [10(5)].

[10] Kartawidjaja v Rowe [2016] VSC 176, [3].