Murray v Kingston City Council [2004] VSCA 249

2 Upon announcing our conclusion that the Supreme Court did not have jurisdiction to hear the proceeding brought by the appellant, and thus that the order of Beach, J. in that regard should be confirmed, the Court invited and received submissions as to the costs orders made by Master Wheeler and by Beach, J. and also as to the costs of the appeal before us. Mrs Murray, who appeared in person, made comprehensive submissions in this regard which assisted us.

3 On 4 March 2002 Master Wheeler ordered the appellant to pay the respondent's costs of the County Court proceeding up to 1 November 2001, which was taken to be the date when the County Court proceedings were transferred to the Supreme Court. It seems that the Master did not make any order against the appellant as to costs of the Supreme Court proceeding but instead granted a certificate to the respondent under the Appeal Costs Act 1998 as to its costs in the Supreme Court up to 1 November 2001.

4 On the appeal to Beach, J. against the order of Master Wheeler dismissing the appellant's proceedings, Beach, J. ordered the appellant to pay the costs of that appeal.

5 Thus, we need first to consider whether the orders of Master Wheeler and Beach, J. that the appellant pay costs to the respondent ought to be varied and then to decide what order of costs should be made as to the appeal heard by us.

6 Mr Connock, in his helpful and able argument, submitted that the orders of Master Wheeler and Beach, J. as to costs ought not be interfered with. He submitted that his client succeeded on both occasions and save for special circumstances (see Armstrong v. Boulton[1]) or "good reasons" (see Nikolaou v. Papasavas, Phillips & Co.[2]) a successful litigant ought to have its costs. There is no reason to depart from that principle, he submitted, and every reason why it ought to be applied. Mr Connock submitted that upon a review of the history of these proceedings no fault can be attributed to the respondent for the appellant's continuation of these proceedings for which the Supreme Court has no jurisdiction. The appellant was given repeated warning that neither the County Court nor the Supreme Court had jurisdiction, he submitted, and Mrs Murray chose to ignore that advice.

7 The appellant adopted a course to pursue an appeal to the County Court because she considered that the rate notice had stipulated that to be the appropriate jurisdiction for such an appeal. Mr Connock referred to the finding of Master Wheeler that in reading the form in that way the appellant had ignored an earlier paragraph on the notice in which advice was accurately given that the proper review process required that the Council be given the opportunity to reconsider its decision and then a right of review was available to VCAT pursuant to the Valuation of Land Act 1960. He submitted that the appellant had in fact sought a council reconsideration, as the earlier paragraph in the rate notice advised was her right, but later issued County Court proceedings. Thus, he submitted, the appellant must have read the correct paragraph of the notice but nonetheless chose to adopt an incorrect appeal process.

8 Beach, J. upheld an argument advanced by counsel for the respondent that s.184 of the Local Government Act did not apply, at all, where the challenge which was to be made was as to the valuation rather than as to "a rate or charge", as specified in s.184(1)(a). Consistent with that conclusion, it was contended by Mr Connock that it should have been clear to the appellant, had she carefully read the advice on the back of the rates notice, that only the earlier paragraph headed "Notice of valuation/Objection to valuation" applied to her case, and, thus, any right of review arose only under the Valuation of Land Act, and it was not appropriate in her case that an appeal be taken to the County Court.

9 It was not necessary for this Court to decide whether the interpretation given by Beach, J. to s.184 was correct, but in my view, even if it was correct, the earlier paragraph of the rate notice would have been no less unclear and confusing for readers without legal training than the paragraph on which the appellant relied in bringing proceedings in the County Court. I consider that a misreading of the information provided on the back page of the notice was entirely understandable, because the Council's rate notice, in my view, was seriously misleading.

10 Mr Connock submitted, however, that quite apart from the rate notice the appellant had received repeated advice as to the correct process of review which was available to her. References to the appeal process under the Valuation of Land Act appeared on the notice of objection form which she signed on 11 October 2000, on a letter from valuer Mr Peter Scollo dated 24 November 2000, on the recommendation notice to the valuer general dated 24 November 2000, and on the confirmation notice by the valuer general dated 6 February 2001.

11 In my opinion, in each instance the information contained in those documents provided inadequate and unclear advice as to the correct appeal or review process appropriate to this case and did not therefore overcome the deficiencies of the original rate notice.

12 In addition, however, Mr Connock relied on two letters from Mr Pollard, the general manager (corporate services) of the respondent. On 16 January 2001 Mr Pollard, by letter, advised the appellant that the County Court had no jurisdiction, referred her to the provisions of the Valuation of Land Act and enclosed copies of the relevant legislation. He offered to the appellant that if she withdrew her County Court proceedings within 14 days the Council would accept that each side bear its own costs. On 16 February 2001 he repeated his advice that her court proceedings were misguided, but did not repeat the offer as to costs.

13 In all the circumstances, however, I consider it was understandable that by the time she received those letters from Mr Pollard the appellant did not abandon her proceedings. It must be kept in mind that the advice that her proceedings were misguided was being proffered by agents of the Council with whom the appellant was in dispute and she considered that other agents of the Council had acted unfairly towards her. She may have been somewhat dogmatic and argumentative in her dealings with the Council, but her belief that she was correct to proceed in the County Court rather than at VCAT seemed to her to be confirmed by the manner in which her proceedings were dealt with in the County Court.

14 The action was commenced in the County Court on 4 December 2000. A judge of the County Court in a directions hearing referred the case to mediation and gave orders as to the determination of the jurisdiction issue which the respondent raised. The strike out summons was not issued until 30 August 2001 and was heard by Master Patkin on 7 September 2001. The Master apparently formed a view that the Supreme Court rather than the County Court might have jurisdiction, and the proceedings were subsequently transferred to the Supreme Court by the appellant in response to that suggestion.

15 Although the appellant rejected advice from the respondent that her proceedings in the County Court and the Supreme Court were beyond jurisdiction, the error she made in bringing and continuing proceedings in those courts in my opinion was primarily a result of the original failings of the rate notice, as compounded by the notices that followed it, which failed to correct the original misleading impression as to the rights of appeal.

16 Thus, whilst the general principles as to costs of a successful party were very relevant in this case, there were two significant factors that were also relevant to that question. In the first place, the appellant had been misled by the respondent's own form as to her right of appeal. Secondly, and with the effect of the original misleading information still propelling her proceeding in the County Court, it was the suggestion then made by the Master in the County Court that the Supreme Court might have jurisdiction which caused the proceedings to be transferred to the Supreme Court.

17 Master Wheeler acknowledged that "the fault", as he described it, in bringing the matter to the Supreme Court appeared to be that of the Master, but he did not order any Supreme Court costs be paid. Master Wheeler acknowledged the fact that the appellant claimed to have followed the advice on the rate notice in bringing proceedings in the County Court, but the Master referred to the other paragraph in the notice to which I have earlier referred and said the appellant had ignored that paragraph. Although the Master concluded that the Supreme Court did not have jurisdiction, it is not clear whether he concluded that the County Court also did not, or whether he left that question open. He said: "The matter was transferred at the suggestion of Master Patkin of the County Court as he believed it exceeded the jurisdiction of the Court. With respect (in) my view the County Court has jurisdiction and there is no monetary limit imposed. Hence there is no justification for the transfer to this Court."

18 In my opinion, Master Wheeler erred in the exercise of his discretion as to costs by disregarding the continued effect of the misleading rate notice. In my view, when proper weight was given to the misleading impact of the notice, it is clear that its deficiencies were not overcome by inclusion of the other paragraph to which he referred. There was, therefore, error in the exercise of his discretion and on the appeal before Beach, J., which was a re-hearing, his Honour ought to have set the decision aside. That was an error of Beach, J., in my respectful opinion, and the proper order to have been made as to costs of the County Court up to 1 November 2001 was that both sides pay their own costs.

19 As to the order of costs of the hearing before Beach, J., his Honour, in my opinion, failed to have regard to either of the relevant factors that I have earlier identified, and in my view that manifests error in the exercise of his Honour's own discretion as to costs. As important as the considerations are concerning costs of a successful party to which we were referred by Mr Connock, in my view the misleading character of the rate notice was the primary cause of the proceedings being issued in the County Court and continued to have effect when, by virtue of the view taken by Master Patkin, the case reached the Supreme Court.

20 In my view the appellant ought not to have been visited with a costs order by Beach, J. and I would allow the appeal to the extent only of setting aside his Honour's order that the appellant pay the costs of the respondent of the appeal to him. I would substitute an order that both sides pay their own costs.

21 I turn to the costs of the appeal before us. Having had the benefit of the decision of Beach, J., which was accompanied by detailed reasons, it is more difficult for the appellant to contend that this unsuccessful appeal was primarily a product of the failings of the rate notice. In my view, the decision to further appeal reflected an intransigence in the approach adopted by the appellant and a disinclination to accept rulings which had gone against her but as to which she had little prospect of demonstrating error. In saying that I acknowledge that this appeal cannot be viewed in isolation from the history of this unfortunate proceeding, and is also part of the legacy of the poorly written documents whereby the Council sought to give advice to ratepayers as their rights. We were not told whether the Council has changed the language of the advice proffered by its rate notice. It would be unfortunate if the Council maintained its opinion that the terms of the advice proffered by its rate notice were adequate.

22 However, while making full allowance for the factors discussed above, I am of the view that the Council ought to have most of its costs of this appeal. Mrs Murray said that she is a pensioner and cannot afford to pay costs. She said she was merely attempting to assert her rights, as she saw them, in the face of apparently conflicting advice as to her rights of appeal. To a limited extent her appeal will succeed, if the other members of the Court agree with me that the orders against her as to costs

ought to be overturned. The appellant has failed, however, as to her primary contention on appeal, which was the issue that occupied most of the time on appeal. Having regard to the reasons of Beach, J., it ought to have been clear to the appellant that she had little prospect of success on that issue.

23 Having succeeded as to the primary issue on appeal there is no good reason why the respondent as the successful party should not be awarded costs. Given that it did not wholly succeed, however, this is an instance, in my opinion, where there ought be a reduction in the award of costs in favour of the successful party. In my view the appellant ought pay 70% of the respondent's costs of the appeal taxed on a party and party basis.

(a) The appellant's appeal from the order of Master Wheeler made on 4 March 2002 is dismissed save that paragraph 2 of the said order is set aside and in lieu thereof it is ordered that each party bear its own costs of the County Court proceeding up to and including 1 November 2001.

(b) Each party bear its own costs of the appeal.

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties