Knight v Secretary to the Department of Justice

5. Upon the handing down of the decision, Mr Pizer of counsel who appeared for the respondent, sought an order that the applicant pay the costs of the respondent. The applicant opposed the application and made a number of oral submissions but in the circumstances then pertaining in the Practice Court I considered it appropriate to adjourn the matter and order that the parties make submissions in writing. Accordingly, it was ordered that the respondent file and serve its submissions as to costs in writing on or before 24 September 2003. Those submissions were filed on 24 September 2003 but the solicitor for the respondent failed to forward a copy of the submissions to the applicant who was thus unable to comply with my order that he file any submissions in response on or before 8 October 2003. The fact that the solicitor for the respondent had not served the submissions did not become apparent until my Associate made enquiries about the matter on 28 October 2003. The submissions were then faxed to the applicant that day. The applicant was advised that the date for response had been extended to 11 November 2003. He filed his response on 12 November 2003. The respondent filed submissions in reply on 24 November 2003.

8. Section 24(1) of the Supreme Court Act 1986 provides that the costs of all matters in the Court is in the discretion of the Court.

11. The normal rule may be stated as being that the usual order as to costs is that they follow the event. In Oshlack v Richmond River Council,[2] McHugh J said:

"The expression of 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 defendant."

15. However the court may depart from the normal rule if the circumstances require it. The guiding principle in each case is whether or not the justice of the case requires the court to make an exception to the normal rule. A departure from the normal rule must be justified by special circumstances or occur for good reason.[3] An unsuccessful party's inability to meet a costs order is not, by itself, a sufficiently special circumstance or sufficiently good reason to justify departure from the normal rule.[4] Likewise, impecuniosity on the part of the unsuccessful party is not, by itself, relevant to the decision as to whether or not to make a costs order although it may be relevant to the enforcement of the order.[5]

18. The respondent submits that the justice of the case before me does not require the court to make an exception to the normal rule that costs follow the event. It is submitted that there are no special circumstances or good reasons that require a departure from the normal rule.

21. First, it is submitted that the applicant made a conscious choice to commence the proceeding.

24. Secondly, it is submitted that the respondent has not engaged in any conduct that occasioned unnecessary litigation and expense.

27. Thirdly, it is submitted that the respondent has not been guilty of misconduct or some wrongful act relating to the proceedings.

30. Fourthly, it cannot be said that the respondent's case lacked merit or succeeded on a mere technicality, nor can it be said that the applicant lost on some grounds but won on others.

33. Fifthly, it is submitted that the applicant's inability to pay a costs order whilst he remains in prison is not by itself a sufficiently special circumstance or good reason to justify departure from the normal rule particularly in circumstances where any costs order remains enforceable for a period of 15 years pursuant to s.5(4) of the Limitation of Actions Act 1958.

36. Sixthly, it is submitted that there is no basis for the suggestion made by the applicant that the respondent has applied for the cost order in order to punish or oppress the applicant. This submission is a response to a matter raised by the applicant in the course of the hearing before me on 10 September 2003 when he made an oral submission that the defendant was seeking an order for costs in order to support an application for security for costs in any future proceedings commenced by the applicant. It is clear in my view that any failure on the part of the applicant to comply with a costs order in this proceeding, would by no means be determinative in relation to an application for security for costs. Any application for security for costs in the future would depend upon all the circumstances of that future case.

39. Finally, it is submitted on behalf of the respondent that there is no basis for any suggestion that this case is a "test case" or a case involving matters of genuine public interest. Rather it is submitted that this case is an exercise in futility and from the perspective of the Victorian tax payers, "an expensive and unnecessary exercise in futility."

42. The applicant submitted a detailed written response to the submissions of the respondent. In summary his submissions are as follows:

* Although he has submitted 43 separate Freedom of Information (FOI) applications to the Office of Corrections, and sought review by the AAT and VCAT, on seven occasions, the appeal in the instant case is his first appeal to the Supreme Court against a decision of VCAT.

* He has no legal training and as a prisoner he has no access to a law library, the internet or telephone access to the Courts or their libraries.

* By reason of his custody and impecuniosity he has been unable to purchase relevant texts and decisions.

* Section 33(9) of the FOI Act is a relatively new provision having been introduced on 1 January 2000 and is thus a "generally untested amendment" to the FOI Act and apart from the decision in Knight v CORE (VCAT G342/2002) there were no other decisions in the possession of the applicant from which to seek guidance as to the principles applicable to that section.

* The application to VCAT and the appeal was brought in good faith.

* It is open to conclude that the respondent is seeking an order for costs for an improper and/or ulterior motive or purpose, to act as an insurmountable economic barrier to the institution of further proceedings and should thus be refused.

* The making of a costs order is futile as the applicant's only source of income is a weekly prison "wage" paid by the respondent to him.

* The applicant would pay costs in the event of an order against him if he had the capacity to do so.

* If the respondent were to allow him to work two or more prison jobs, seek private paid employment and permit him to seek to give interviews to media organisations then he could raise funds, but in circumstances where the respondent does not do so, the ability of the applicant to raise funds is caused or contributed to by the policies of the respondent. In such circumstances it is submitted that it is unconscionable that the respondent seek a costs order against the applicant.

* If the respondent provided appropriate access to prisoners in terms of law libraries, legal resources and access to internet then prisoner litigants would be in a position to properly assess the viability or otherwise of their applications, and that it is thus just and unconscionable for the respondent to complain about the futility of such applications when such resources are not provided.

* Although the earliest possible release date of the applicant is 2014 and a costs order would remain enforceable for 15 years pursuant to s.5(4) of the Limitation of Actions Act 1958, any debt by reason of a costs order would be additional to the applicant's HECS debt of $7,683 and would "have a bearing" on any "future re-integration" by him into the community.

56. The appellant submits further that the above matters are special circumstances which justify a departure from the normal rule that costs follow the event.

59. It is true as Burchett AJ said in McCallum v Commissioner of Corrective Services[6] that the circumstances of an application before the Court may be such that a "reasonable attempt" by a prisoner to have a Court consider the legality of "significant action" taken by a prison authority will not result in a costs order even if the claim is dismissed. But the question nevertheless remains a matter of discretion based on general principle. As Gillard J said in Rich v Groningen[7]:

"...I must treat Mr Rich like any other litigant in this area ...".

63. However, the applicant submits that costs orders against unsuccessful unrepresented prisoner applicants have "only previously been made where a proceeding had been brought where the Court had no jurisdiction to entertain the proceeding, or where the proceeding has been deemed frivolous and/or vexatious". Whilst it is true that cost orders have been made in such circumstances[8] it would be wrong to elevate that circumstance to a principle, as in effect the applicant submits, that prisoners who bring proceedings against the State are in some special category of litigant by reason of their incarceration and thus should not have costs orders made against them unless such proceedings are found to be without jurisdiction or are stated to be vexatious.

66. In relation to the application before me in this proceeding I concluded that leave to appeal out of time should not be granted because the proposed appeal was bound to fail. The proposed appeal was an appeal from VCAT which had determined that the FOI application made by the applicant was an "abuse of process" as it sought to "re-agitate issues which had as a matter of substance already been determined in prior decisions."

69. The case before me cannot be said to be a case in which significant issues of principle were at stake as between the prisoner and the State. Rather, as the Tribunal found, and as I with respect agree, the application made by the applicant lacks substance or merit. I do not accept that any matter raised in argument by the applicant amounts to special circumstances. It follows that in my view there is no reason why costs should not follow the event in all of the circumstances. I accordingly order that the costs of this application be paid by the applicant.

I certify that this and the 5 preceding pages are a true copy of the reasons for Judgment of Kellam J of the Supreme Court of Victoria delivered on 23 February 2004.

[1] See Knight v Secretary to the Department of Justice [2003] VSC 341.

[2] [1998] HCA 11; [1998] 193 CLR 72 at 97.

[3] Oshlack v Richmond River Council [1998] HCA 11; [1998] 193 CLR 72 at 86 and 127.

[4] Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212.

[5] Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 1419.

[6] [2002] NSWSC 497.

[7] [1997] VSC 35; 95 A Crim R 272 at 290.

[8] See Brazel v Acting Commissioner of Prisons [2002] VSC 213; (2002) 130 A Crim R 142.