Applicant v Respondents

2 OVIC seeks an order that the applicant pay its costs of and incidental to the application for leave to appeal on a standard basis, pursuant to the usual rule that the 'costs of a trial follow the event'. In written submissions filed 27 June 2025, OVIC argues that the 'most just, efficient, timely and cost-effective path to resolving' the costs application would be by way of a gross sum costs order. It submitted that such an order would promote the overarching objectives of the Civil Procedure Act 2010 (Vic) ('the Act') and prevent further prolongation of an already protracted proceeding by avoiding a taxing exercise. It seeks the sum of $10,341.62.

3 In support of the sum sought in the costs application OVIC relies on the affidavit of Cara Louise O'Shanassy sworn on 27 June 2025. On the basis of that affidavit, OVIC submits that the costs are logical, fair and reasonable taking into account that:

(a) OVIC relied on junior counsel throughout the proceeding;

(b) the amount claimed is modest; and

(c) the application had been managed by in-house legal practitioners and their costs are not sought to be claimed.

4 The Department seeks an order that Mr Myers pay its costs of and incidental to the application for leave to appeal on a gross sum basis in the amount of $34,650.

5 It submits that no special circumstances arise to depart from the well-established principle that the successful party receives its costs and the appeal 'failed on every ground'.

6 The Department relies on the affidavit of Laura Georgia Coutinho Dargan affirmed on 27 June 2025 in support of its claim for a gross sum costs order. In that affidavit Ms Dargan says that the total costs expended by the Department were $129,349 (excluding GST) comprising $82,035 for counsel's fees and $47,314 for solicitors' fees. The Department submits that the amount it claims is modest and represents just 27 per cent of actual expenditure on the proceeding. It is further submitted that the sum sought would be a fraction of what would likely be ordered if taxed on a standard basis.

7 Mr Myers filed his written submissions on 1 July 2025 which were longer than the page limit imposed by the Court. I have considered those submissions. A significant portion of Mr Myers' submissions is devoted to explaining why he regards the decision to reject his FOI request is wrong.

8 Mr Myers opposes OVIC and the Department's costs applications, relying on the passage from Oshlack v Richmond River Council ('Oshlack')[1] which states that:

... the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.

(citations omitted)

9 Mr Myers contends that OVIC and the Department incurred costs due to their lax conduct and, by failing to further investigate his claim and consider options to resolve the matter, effectively invited the litigation. Mr Myers submits that he pursued the appeal for public interest purposes and that had the requested information been provided, no legal costs would have been incurred in defending the decision to refuse. Further, Mr Myers submits that, as a self-represented litigant, he expended significant time pursuing the appeal and would be unable to meet any costs order made against him due to his limited financial means, a Centrelink benefit being his only source of income.

10 This Court's discretion regarding costs is broad. It is well-established that the 'usual order as to costs' is that they follow the event, the 'event' being the outcome of the proceeding. As McHugh J said in Oshlack:

The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.[2]

11 I do not accept that the circumstances of this case warrant a departure from the usual rule.

12 I do not accept that OVIC and the Department engaged in any 'lax conduct' effectively inviting the litigation. The litigation arose solely because of Mr Myers single minded pursuit of the documents. On 22 June 2021 the Department sought to consult Mr Myers with a view to narrowing his FOI request. On the same day Mr Myers rejected that offer of consultation out of hand. The balance of the litigation then ensued.

13 I would reject Mr Myers' contention that his appeal was advanced for 'public interests purposes'. This argument was rejected by the Court of Appeal in Myers v Victorian Civil and Administrative Tribunal (No 2)[3] where Walker JA said:

...For completeness, nor do I consider that the underlying subject matter of the proceeding before Watson J concerns the public interest. Rather, while the litigation involves the operation of the Freedom of Information Act 1982, the applicant seeks to advance a private interest in access to documents.[4]

14 Mr Myers' FOI application was to gain access to information that would enable him to investigate the loss of his phone. On any view, that was not a matter in the public interest. In his submissions on costs, he now says that this was not his primary reason for seeking leave to appeal. Nonetheless, objectively viewed, this proceeding was not one concerning the public interest.

15 Mr Myers' status as a self-represented litigant and his limited means does not equate to a 'special' or 'exceptional' circumstance which would justify a departure from the expectation that the successful parties be compensated for the expenses incurred by reason of the proceeding. As Walker JA, said:[5]

In relation to the applicant's reliance on his financial position and his dependence on a disability support pension, I do not consider those matters sufficient to justify a departure from the usual rule in the present case. Absent exceptional circumstances, the financial position of a party is not a matter relevant to the exercise of the costs discretion.[6] The applicant did not demonstrate any exceptional circumstances.

In relation to the applicant's status as a self-represented litigant and the fact that the second and third respondents are government agencies, these matters have no relevance to the exercise of the costs discretion (putting to one side the potential for matters of public interest to arise in cases involving government agencies, which I have dealt with above).

16 OVIC and the Department are entitled to an order for costs.

17 Both OVIC and the Department seek the costs of and incidental to the proceeding on a gross sum basis.

18 In Giurina v Greater Geelong City Council (No 2),[7] the Court of Appeal considered the application of s 65C of the Act and r 63.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and held that:

The Court may award a gross sum of costs in order to avoid the expense, delay, and aggravation involved in protracted litigation arising out of taxation. This involves a broad-brush approach, without the rigour and precision of the process of taxation, however, the Court should be confident that the approach taken to the estimate of costs is logical, fair and reasonable.[8]

(citations omitted).

19 In this case there is real merit in avoiding 'the expense, delay, and aggravation involved in protracted litigation arising out of taxation'. Adopting a broad-brush approach I am satisfied, based on the evidence filed, that each of the amounts sought are logical, fair and reasonable and less than the amounts which would likely be awarded on taxation.

20 For these reasons, the orders sought by the second and third respondents should be made. I will make the following orders:

(a) The applicant pay the second respondent's costs of and incidental to the application for leave to appeal in the amount of $10,341.62.

(b) The applicant pay the third respondent's costs of and incidental to the application for leave to appeal in the amount of $34,650.

[1] [1998] HCA 11; (1998) 193 CLR 72, 97-98 [69] (McHugh J).

[3] [2024] VSCA 277.

[6] Board of Examiners v XY [2006] VSCA 190, [33]-[34] (Chernov JA, Nettle JA agreeing at [39]-[43], Neave JA agreeing at [44]), referred to with approval in Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164, 174 [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25.

[7] [2021] VSCA 341.

[8] Ibid [16] (Kennedy, Walker JJA and Macaulay AJA).