Chopra v Department of Education and Training [No 2] [2021] VSCA 112

1 On 1 March 2021 the Court refused leave to appeal in this matter and determined that the application was 'totally without merit' within the meaning of s 14D(3) of the Supreme Court Act 1986.[1] The respondent Department seeks its costs, on the standard basis until the date of an offer to compromise and thereafter on the indemnity basis. The applicant seeks an order that the Department pays his costs.

2 For the reasons that follow, it will be ordered that the applicant pay the respondent's costs of the application, to be taxed on the standard basis. These reasons should be read with those in the substantive application.

3 The question of costs has been decided on the papers. As with the substantive proceeding, the applicant was profoundly dissatisfied with the manner in which the Court proceeded and it is necessary briefly to recount the path the matter has taken since judgment.

4 The respondent was given two weeks to file written submissions and the applicant was initially given two weeks to respond. The respondent filed its submissions on 15 March 2021. The applicant's submissions were due to be filed on 29 March 2021, but on that day he sought a further two weeks, saying that, although he had 'made some good headway' on his submissions, he needed extra time, pointing to the impending Easter break and a recent injury to his arm, among other things.

5 The applicant was given the extension he requested. He was informed that an affidavit would be required if any further extension was to be sought. On the amended date, 12 April 2021, the applicant filed an affidavit (described as his 'tenth affidavit'). He deposed to having been stalked and harassed increasingly in the previous fortnight, which had required him to spend time with police and on related matters, totalling 'tens of hours'. He said that he could not fully focus on the costs submissions until the issue was sorted out. He asserted that he required a barrister and said that he continued to operate in a very weakened mental and physical state. He then took issue with many aspects of the substantive decision and the manner in which the Court had proceeded on the application generally.

6 The affidavit went on to make various points relevant to the question of costs, described as 'merely samples' of the applicant's submissions which were 'not even partial or preliminary' submissions 'because there is so much more to write'. In conclusion, the applicant asked for a further 6 weeks to 'allow the criminal issues to be resolved and allow me time to find a barrister'.

7 The Court considered that no basis had been shown for an extension of the kind sought, and later on 12 April 2021 it sent the applicant an email stating that no extension would be granted to permit him to reargue matters the Court had already decided, including as to the merits of the appeal, its procedural history and the position regarding legal assistance. The Court indicated that it would take account of submissions as to costs commencing at paragraph 48 of the tenth affidavit. The applicant was given one week to make any further submission as to costs, of no more than five pages. The Court stated that it did not require submissions as to the respondent's application for indemnity costs, made in its written submissions.

8 On Monday 19 April 2021, when the applicant's submissions were due, the Court received an email from him claiming that he had not received the email of

12 April 2021 but had become aware of it through the respondent, over the preceding weekend. Over two closely-typed pages, the applicant recounted arguments that he said he had made to the respondent, in an effort to persuade it that each party should bear their own costs, including arguments as to why the respondent should, if anything, pay the applicant's costs of the application. However, the applicant submitted that he needed more time (until 31 May 2021) to obtain the assistance of a barrister to make his submissions.

9 At the request of the Court, the Deputy Registrar contacted the applicant by telephone the same day and advised him that he would be receiving an email informing him that he had until 26 April 2021 (one week) to file a submission as to costs of up to five pages. The email was duly sent. On 26 April 2021, a further email was received from the applicant seeking an extra day in which to file his submissions, on the basis that he had been 'especially busy' all week and was then waiting to be seen by a specialist regarding his injury (presumably the injury to his arm). The Court agreed to the request. It also agreed to an additional request made on the following day to extend the time until 29 April 2021 on the basis that the applicant stated that pain in his arm had prevented him from typing the previous day. The Court advised that no further extensions would be granted, in light of the time since judgment was delivered.

10 The applicant filed on 'eleventh affidavit' on 29 April 2021. Contrary to the direction that the submissions be limited to five pages, this document ran to some

37 pages. Also contrary to the directions that were given, most of the document was not about costs. Instead, among other things, in highly intemperate terms descending often to sarcasm, the applicant renewed an application, already dismissed, that I recuse myself from the case. The applicant again sought to have the case heard by a panel of three judges. The affidavit also sought impermissibly to repeat arguments already rejected as to the merits of the case, and to complain about the disposition of the application for leave to appeal and the fact that the matter had not been referred to the pro bono scheme to provide the applicant with a barrister. This material was overwhelmingly repetitive of arguments previously raised. Many of the arguments were repeated in email communications subsequently sent to the Registry, the gist of which was that I should recuse myself and that the remainder of the case should be determined by a bench of three judges.

11 No basis has been shown for reopening any aspect of the orders already made, whether final or interlocutory. The application for recusal and to have costs determined by a panel of three judges is rejected for the same reasons as were given for declining recusal on the substantive application.[2] That is because, except for the fact that the case had been decided adversely to him, which the applicant considered confirmed the reasonable apprehension of bias he alleged, and apart from an argument that insufficient time had been allowed for him to make costs submissions, the grounds for the applications were the same.

12 As to the former issue, the arguments as to recusal do not improve as a result of the disposition of the case on the merits. The fact that the applicant has been unsuccessful in seeking leave to appeal would not cause the fair-minded lay observer to alter their opinion as to determination by me of the merits of the case, so as to conclude that I might not bring an impartial and unprejudiced mind to the question of costs.

13 As to the latter issue, the eleventh affidavit asserts that insufficient time was provided to enable the applicant to make costs submissions. One obvious answer to that contention is that, accepting the applicant's statements as to the physical and psychological impediments with which he has had to deal, he has devoted considerable energy to produce elaborate written material directed overwhelmingly to matters other than costs. That was his choice, despite having been told that the Court would not entertain submissions of the very kind that the applicant ultimately made. The applicant is an educated and intelligent man with a great deal of experience in conducting litigation on his own behalf.[3] The approach he took was plainly well-informed and deliberate. In short, the applicant repeatedly sought extra time to complete costs submissions and has used that time largely for the purpose of seeking to re‑agitate a litany of questions the Court has finally determined.[4]

14 Be that as it may, I am satisfied that the applicant has had ample opportunity to make submissions as to costs, more than eight weeks in all since the Court's judgment was delivered. On any view (including that of a reasonable observer contemplating a possibility of bias) that is a generous period to address the question of costs in all the circumstances. Over that time, the applicant has advanced several pages of reasons as to why he should be awarded costs, albeit under protest and, it is said and may be assumed, while labouring under physical and other burdens. Despite those burdens, those reasons are clear and comprehensive.

15 Having dismissed the various applications the applicant purported to make through his further affidavits and correspondence, it is necessary then to turn to the substantive matters raised with respect to costs.

16 The respondent submitted that it had been wholly successful, and that costs should follow the event. It pointed also to the applicant's numerous requests for adjournments and other communications which were said to have caused costs to be thrown away. The respondent submitted, having regard to observations made by the Court at [107] of its principal reasons, that it was irrelevant that the respondent had invited the Tribunal to issue the invitation under s 51A of the Freedom of Information Act 1982 ('the FOI Act'), which had prompted the present application. It pointed out that only one of the three grounds for refusing leave to appeal directly concerned s 51A.

17 The respondent sought indemnity costs from 6 March 2020 onwards, being the date on which an offer to compromise was served on the applicant. The offer incorrectly stated that it was served under r 26.02, rather than r 26.12, which governs offers to compromise on appeal. By the offer, the respondent would accept $10,000 by way of costs and the applicant would discontinue the proceeding.

18 The respondent also referred to earlier offers it had made by way of correspondence. On 22 January 2020 it had offered not to enforce the order that the applicant pay its costs of the proceeding before the primary judge, if the applicant withdrew the current application, paid the respondent $25,000 as a contribution toward its costs, and agreed not to undertake further related proceedings against the respondent. The respondent offered to pay the applicant up to $5,000 for independent legal advice prior to him signing the necessary deed of release.

19 The respondent did not provide details of any other offers.

20 Although, for the reasons that follow, the applicant should pay the respondent's costs, I would not order that those costs be taxed on the indemnity basis. In relation to the offer to compromise, I am prepared to assume that the requirements of r 26.12 are met (namely, a written offer to compromise the appeal, open to be accepted for a reasonable time but not accepted, and the offeror obtaining an order no less favourable than the offer). That requires the Court to take those matters, and the stage of the appeal at which the offer was made, into account. When that is done, it is relevant that the content of the offer amounted to a capitulation in the proposed appeal and a payment of what might be assumed to be an amount less than the likely taxed costs of the respondent. However, there was no evidence as to the amount of the respondent's costs as at March 2020, and the applicant was not advised of that amount, which would have helped him assess the offer. Nor did the offer foreshadow any costs consequences that might be alleged to follow if it was not accepted. In exercising the costs discretion, I would not order indemnity costs in these circumstances.

21 Turning to the 22 January 2020 offer, it sought a larger payment by way of costs ($25,000), which extended to the costs of the proceeding in the Trial Division. Again, this might be assumed to represent a discount in the amount of the applicant's potential costs exposure, but there is no evidence to that effect and the applicant was not informed of the measure of any such discount. The applicant was therefore not in a position to make a meaningful assessment of the offer. Again, the offer did not warn of any adverse costs consequences that might be said to follow if it was not accepted. When the guiding factors set out in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2][5] are considered it has not been shown that the rejection of the offer was unreasonable.

22 The respondent has not made out its case for the payment of costs on the indemnity basis.

23 The applicant argued, especially in his tenth affidavit, that he had only wanted the first decision made by the respondent to remain as the decision under review in the Victorian Civil and Administrative Tribunal ('the Tribunal') and that, as a result of the application, that decision had been 'resurrected and remains the decision under review'. He had therefore effectively won the appeal and the Tribunal's invitation to the respondent to reconsider the first decision should be set aside. That 'decision' of the Tribunal was said to have extinguished the original application to review the first decision. The applicant also made submissions about the decisions in Mildenhall v Department of Education[6] and Lovell v Department of Human Services,[7] which repeated matters raised previously which the Court found it unnecessary to address.

24 The applicant submits in both his tenth and eleventh affidavits that this Court held that the invitation issued by the Tribunal to the respondent was 'wholly misconceived'. This is not correct. The relevant passage in the principal reasons is as follows:

Proposed ground 7 is concerned with the merits of the Tribunal's decision under s 51A(1) to invite the Department to reconsider its decision. However, as noted by the primary judge, that invitation led nowhere because the Department did not vary its decision in any way or substitute a new decision. It remained a decision to refuse access to the documents, and s 51A(3) had no operation. Irrespective of the arguments as to whether an invitation under s 51A(1) could have had the effect of enabling the Department to invoke s 25A of the FOI Act, nothing turns on the point and leave to appeal in respect of it must be refused.

That is so even if, assuming Dr Chopra's above submissions are accepted, the invitation to reconsider the decision was wholly misconceived because the Tribunal had invited the Department to review a decision other than the decision under review. Whatever may have underlain the decision to make the invitation, and whichever decision the Tribunal had in mind was being reconsidered, the ultimate decision on reconsideration had no legal effect and there is no point in reviewing the decision to invite the Department to make it.[8]

The point being made is not that the invitation was misconceived, but that the invitation made no difference to the review because no different decision was made as a result of it.[9]

25 The point is important because, as noted in the above passage, it was also made by the primary judge.[10] In other words, the proceeding in this Court took the applicant's point about the first decision being the subject of the review no further. The argument that the applicant established that the decision under review was the first decision and that he had therefore won the appeal is therefore misconceived. The position was already clear from the decision of the primary judge.

26 In his email of 19 April 2021, the applicant made a further argument to the effect that this Court had overruled the primary judge's decision that Lovell was plainly correct. However, that is also incorrect. This Court held that it was not necessary to decide the point.[11] That does not mean that the primary judge was wrong in her evaluation of the issue. At most, it means that she might not have needed to decide it either. Even so, that would not be a basis for departing from the usual order as to costs.

27 Next, the applicant submitted that the proceeding concerned issues of public administration such that a special order as to costs was warranted (citing Oshlack v Richmond River Council).[12] It is relevant in that regard that, while the litigation involved questions of the operation of the FOI Act, the applicant sought to advance a private interest in access to documents.[13] In addition, as noted, one of the main issues the applicant sought to raise did not need to be decided. In my view, there was no public interest in the proceeding in this Court sufficient to justify a special costs order.

28 Finally, in his 'eleventh affidavit' the applicant also purported to make application for the Tribunal to be joined as a party so that it could be ordered to pay costs. That 'application' appears not to have been drawn to the attention of the Tribunal. It is, in any event, entirely without merit. For the reasons given, there would be no basis for ordering costs against the Tribunal.

29 The applicant will therefore be ordered to pay the respondent's costs of the application for leave to appeal, to be taxed on the standard basis.

[1] Chopra v Department of Education and Training [2021] VSCA 36 ('Principal reasons').

[3] See, eg, Chopra v Department of Education and Training [2019] VCAT 174, [39]-[41] (Quigley J).

[4] Unfortunately the applicant has a history of refusing to accept decisions of judicial officers with which he disagrees: see Chopra v Department of Education and Training [2017] VCAT 504, [29], [36], [42], [46] (Judge Hampel V-P); Chopra v Department of Education and Training [2019] VCAT 174, [36] (Quigley J); Chopra v Department of Education and Training [2020] VCAT 748, [14], [33] (Judge Jenkins); Chopra v Department of Education and Training [2020] VCAT 1035, [66] (Judge Jenkins).

[5] (2005) 13 VR 435, 442-3 [25]-[29] (Warren CJ, Maxwell P and Harper AJA).

[6] (Victorian Civil and Administrative Tribunal, Senior Member Lyons, 9 April 1999).

[7] [2010] VCAT 1965 (Judge Lacava VP) ('Lovell').

[8] Principal reasons [98]-[99] (emphasis added) (citation omitted).

[9] In his eleventh affidavit, the applicant submitted that this approach revealed a refusal to accept that his arguments were correct, and a lack of integrity on the part of the Court. Those submissions capture the argumentative flavour of most of that affidavit.

[10] Chopra v Department of Education and Training [2019] VSC 488, [4].

[11] Principal reasons [79], [100]-[101].

[12] [1998] HCA 11; (1998) 193 CLR 72, 123-4 [136]-[137] (Kirby J); see also 88-9 [40]-[45] (Gaudron and Gummow JJ).

[13] See Anderson v Stonnington City Council [No 2] [2020] VSCA 238, [6]-[7] (Maxwell P, Tate and McLeish JJA).