1. This Court has a broad discretion to award costs pursuant to section 24(1) of the Supreme Court Act 1986. The 'usual order as to costs' is that costs will follow the event.[4] The usual rule may, of course, be departed from in the exercise of the Court's discretion. As the High Court held in Oshlack v Richmond River Council, there is no absolute rule with respect to the exercise of the discretion.[5]
2. In the present case, none of the matters raised by the applicant justify departing from the usual rule.
3. In relation to the contention that the proceeding concerned the 'public interest', I accept that this may provide a basis for departing from the usual rule[6] (although it does not require such departure). However, in the present case I do not accept the applicant's submission that his application for leave to appeal was one that concerned the public interest. Fundamentally the application concerned the applicant's personal desire to have a lay person[7] make oral submissions on his behalf at trial. In my view that did not raise an issue of public interest that would justify a decision not to award the successful parties their costs. 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.[8]
4. 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.[9] The applicant did not demonstrate any exceptional circumstances.
5. 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[10] (putting to one side the potential for matters of public interest to arise in cases involving government agencies, which I have dealt with above).

1. I do not consider that the costs of the applicant's application for leave to appeal ought to be costs in the ongoing proceeding before Watson J. The application was made and has been determined, and it is appropriate that the question of costs be determined by this Court, not that they be reserved for future resolution by the trial judge.
2. The third respondent sought an order that the applicant pay its costs of and incidental to the application on the standard basis. For the reasons explained above, I consider that it is appropriate to make that order.
3. In contrast, the second respondent sought an order for costs in a gross sum. As this Court observed in Giurina v Greater Geelong City Council:

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.[11]

1. I am satisfied that in the present case it is appropriate to make a costs order on a gross sum basis as sought by the second respondent. Such an order will avoid further expense and delay in relation to the costs of the application for leave to appeal which, as I held in my Principal Reasons, was entirely lacking in merit.[12]
2. As to quantum, the second respondent sought an order for costs in the sum of $1,727.27. I am satisfied that this amount is logical, fair and reasonable. It relates only to counsel's fees (exclusive of GST) and was supported by an affidavit that exhibited the relevant invoices. It is, on any view, a modest sum for the resolution of an application for leave to appeal in this Court and in that sense is generous to the applicant.

1. For these reasons, the orders sought by the second and third respondents should be made, and 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 $1,727.27.

(b) The applicant pay the third respondent's costs of and incidental to the application for leave to appeal on the standard basis.

• OFFICE OF THE VICTORIAN INFORMATION COMMISSIONER

[1] Myers v VCAT [2024] VSCA 206 ('Principal Reasons').

[2] The first respondent did not take an active role in the proceeding and did not make any submissions as to costs.

[3] The second respondent's application was supported by the affidavit of Cara Louise O'Shanassy, sworn on 23 September 2024.

[4] See, eg, Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, 173 [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25 (citations omitted) ('Sangare'):

A guiding principle by reference to which the [costs] discretion is to be exercised - indeed, 'one of the most, if not the most, important' principle - is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party.

[5] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 88 [40] (Gaudron and Gummow JJ), 121 [134] (Kirby J); [1998] HCA 11 ('Oshlack').

[6] See Oshlack [1998] HCA 11; (1998) 193 CLR 72, 90-1 [48]-[49] (Gaudron and Gummow JJ), 122 [134] (Kirby J); [1998] HCA 11; Cumming v Minister for Planning [No 2] [2020] VSCA 231, [9] (Tate, McLeish and Osborn JJA).

[7] That is, a person who is not entitled to practise as a lawyer, which may include a person who is legally qualified but does not have a practising certificate and thus has no right of appearance (often referred to as a 'McKenzie friend'). In the present case the applicant sought to have a person who has no legal qualifications make oral submissions on his behalf.

[8] See Chopra v Department of Education and Training [No 2] [2021] VSCA 112, [27] (McLeish JA); Anderson v Stonnington City Council [No 2] [2020] VSCA 238, [6]-[7] (Maxwell P, Tate and McLeish JJA).

[9] 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 Sangare [2019] HCA 25; (2019) 265 CLR 164, 174 [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25. In the latter case the High Court observed as follows:

The successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.

[10] Sangare [2019] HCA 25; (2019) 265 CLR 164, 174 [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); [2019] HCA 25.

[11] Giurina v Greater Geelong City Council [2021] VSCA 341, [16] (Kennedy, Walker JJA and Macaulay AJA) (citations omitted) ('Giurina').

[12] See Giurina [2021] VSCA 341, [17] (Kennedy, Walker JJA and Macaulay AJA) (citations omitted); Bechara v Bates [No 2] [2018] FCA 583, [4] (Perry J).