Pham v Victims of Crime Assistance Tribunal

PRACTICE AND PROCEDURE - Costs - Interveners - Costs sought against intervener in Victorian Civil and Administrative Tribunal - Intervener not a party - Whether costs incurred as a result of Attorney-General's intervention - Victorian Civil and Administrative Tribunal Act 1998 s 110(2).

1 The Court granted leave to appeal and allowed the appeal in this matter on 13 May 2016. Orders were made for the provision of written submissions in relation to costs.

2 In his submissions, the appellant sought orders for costs against the respondent, alternatively against the intervener. He sought his costs of the appeal to this Court and his costs of the review before the Victorian Civil and Administrative Tribunal ('VCAT'). The appellant did not ask this Court to make any order in respect of the costs of the application to the respondent, the Victims of Crime Assistance Tribunal.

3 The respondent took no part in the matter before VCAT or in this Court. Its involvement in both proceedings was, consistently with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[1] confined to a submitting appearance.

4 The appellant submits that costs should be ordered against the respondent in the exercise of the Court's general discretion as to costs. He submits that, as the successful litigant, he should receive his costs unless there is reason shown to the contrary.[2] The appellant submits that the errors of law that were made at first instance were those of the respondent and that these provoked both the review application to VCAT and the appeal to this Court.

5 It would be a most unusual case in which a tribunal which has not actively defended its decision would be ordered to pay the costs of a successful appeal against that decision. While the Court has power to make such an order, and the matter is always to be decided in the exercise of the Court's discretion according to the circumstances of the particular case, the general assumption that costs will follow the event does not apply in such circumstances; to the contrary, a tribunal that has not actively taken part in the proceeding will usually not be ordered to pay the successful party's costs.[3] It has been said that the circumstances in which an order for costs may be made against a tribunal on appeal must be exceptional.[4] It has also been said in this Court that costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless that tribunal has been guilty of serious misconduct or corruption, or has otherwise acted perversely.[5] These observations should not be thought to prescribe any exhaustive test for the exercise of the costs discretion in these kinds of cases. The circumstances will always need to be considered to see whether any departure from the usual rule is warranted.[6] Of course, different considerations will apply if the tribunal has taken an active role in the proceeding; depending on the nature of that role, such a tribunal may be in the same position in respect of costs as any other party.[7]

6 In the present case, there is no basis for departing from the usual rule that a tribunal which adopts a Hardiman approach in an appeal from one of its decisions is not ordinarily responsible for the costs of the successful appellant. No order should be made against the respondent in respect of the costs of the appellant either before VCAT or in this Court.

7 In the alternative, the appellant seeks orders for costs against the Attorney-General. The Attorney-General intervened on the application for leave to appeal, and the appeal, and acted as contradictor in this Court. No formal order was made in that regard. Instead, the Registry advised the Victorian Government Solicitor's Office by email dated 1 February 2016 that, as the Attorney-General was an intervener before VCAT, he would not be required to file an application for leave to intervene but would be treated as an intervener in the application for leave to appeal. In written submissions, the Attorney-General accepted that it was appropriate for his status in the proceeding to be regularised by making a formal order that he be joined as an intervener. An order to that effect should be made. The Attorney-General properly accepted that the consequence of making such an order would be that he would have all the privileges and liabilities of a party, including in respect of costs.[8]

8 In his written submissions, the Attorney-General likened his involvement in the appeal to that of an amicus curiae who acts as contradictor and plays an active role in the proceeding but does not adduce evidence or raise new substantive issues. It was pointed out that submissions made by an amicus curiae may be of considerable assistance to the Court, especially in the absence of a proper contradictor. Doubtless that is so, and the Court was greatly assisted by the submissions of the Attorney-General in the present case. These are significant matters in weighing the exercise of the costs discretion.[9]

9 However, it must also be borne in mind that, in making submissions in the present matter, the Attorney-General was also protecting the moneys appropriated by Parliament to answer claims for compensation under the Victims of Crime Assistance Act 1996. In the context of the former Crimes Compensation Tribunal, that factor was considered important when a similar question of costs came before this Court in S v Crimes Compensation Tribunal.[10] Phillips JA stated:

An application for compensation under the Compensation Act is by its very nature an ex parte application and so, when the applicant seeks to have the determination of the Compensation Tribunal reviewed or, after review by the Appeals Tribunal, comes to this court on appeal, there is no obvious contradictor to dispute with the claimant if the Compensation Tribunal abstains from assuming that role. It is then that the Attorney-General may very properly intervene 'to represent the public interest', as envisaged by Brennan J [in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 681-2]. But when that happens, the Attorney is, I think, undertaking herself the role which (as Brennan J points out) would otherwise fall to the Compensation Tribunal. Through the Attorney, the Crown has a very real interest in protecting the moneys appropriated by Parliament to answer claims for compensation under the Compensation Act and in ensuring that those moneys are used only to answer 'proper claims'. Presumably it was to that end that the Attorney sought leave to appear in this case and it was to that end that the Attorney obtained leave at an early stage 'to be joined as an intervener', becoming thus a party to the appeal.

It is of course entirely appropriate that this court should not be left to entertain this appeal as an ex parte proceeding, the more especially as the claim of the appellant is for the expenditure of public moneys and both the Compensation Tribunal and the Crown, through the Attorney-General, may be considered as having an equal interest in keeping such expenditure within due bounds. Representation of the one or the other can reasonably be expected and is to be encouraged. It can be of great assistance to the court. But the Attorney-General having become a party to the appeal in this instance, there would seem to be no reason why an order for costs cannot then be made against her, as it was against the tribunal in Fagan. The question becomes simply one of discretion.[11]

10 The Attorney-General sought to distinguish this decision on the basis that in S v Crimes Compensation Tribunal the Attorney-General had the status of a party. That was a result both of the formal order granting the Attorney-General leave to be 'joined as an intervener' to the proceeding and because the Court considered that this order operated with O 4 of the Rules of Procedure in Miscellaneous Civil Proceedings 1988 to make the Attorney-General a party.[12] There is no substance in the suggested distinction. As the Attorney-General properly accepts, he was treated as an intervener in this proceeding with all the privileges and liabilities of a party. As was the case in S, the involvement of the Attorney-General was not strictly confined to acting as a contradictor. He was also intervening in the public interest to ensure that public moneys were only expended in accordance with the proper operation of the legislation.

11 In the circumstances, as in S, no reason appears why the Attorney-General should not be ordered to pay the appellant's costs of the application for leave to appeal and of the appeal.

12 The appellant sought an order that his costs be paid on an indemnity basis. It was submitted that the proceedings had been conducted as a test case and that they had served a public purpose. No criticism was made of the manner in which the Attorney-General conducted the proceeding, nor could it have been. The fact that the decision of the Court resolves a question of statutory construction with consequences going beyond the present case is unremarkable. No ground has been shown for making an order other than on a standard basis.

13 The question of costs in VCAT is to be addressed by reference to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act').

14 Section 109(3) of the VCAT Act sets out matters to which VCAT must have regard when deciding whether it is satisfied that it is fair to make an order that a party pay all or a specified part of the costs of another party in a proceeding. The appellant made submissions as to why, when regard is had to these matters, such an order should be made. The Attorney-General submitted in response that this section was unavailable in the present case because he was not a party to the proceeding before VCAT. That submission should be accepted. The Attorney-General was not a party to the proceeding before VCAT.[13] As a result, s 109 of the VCAT Act is not available to sustain a costs order against the Attorney-General.

15 In the alternative, the appellant relied on s 110 of the VCAT Act. Section 110(2) provides:

If the Attorney-General or Director intervenes in a proceeding, the Tribunal may order the State pay an amount specified by the Tribunal to a party as compensation for all or part of the costs reasonably incurred by the party as a result of the intervention.

16 Although the appellant stated in his written submissions that he had incurred costs by reason of the intervention of the Attorney-General in the review before VCAT, he did not point to any specific costs of that nature. That is not surprising. It was necessary for the appellant to advance legal arguments before VCAT as to why the decision under review was not correct. It was therefore always going to be necessary to address the arguments that could be made to the contrary. While some costs were presumably incurred by way of serving documents and other attendances, such costs would have been incidental to the costs of preparing for and conducting the hearing, which would have been incurred in any event. Moreover, the appellant has not specified any amount of costs which would supply the foundation for making an order under the section. In the circumstances, no order should be made under s 110 of the VCAT Act.

17 No specific orders were sought in respect of the costs incurred in preparing the written submissions as to costs. Those costs should therefore be dealt with consistently with the above reasons. In other words, the Attorney-General should pay the appellant's costs in that regard. No order was sought in respect of the respondent's costs.

18 For the reasons set out above, the orders of the Court should be as follows:

1. The Attorney-General be joined as an intervener in this proceeding.

2. The Attorney-General pay the appellant's costs of and incidental to the application for leave to appeal and the appeal, including the appellant's costs in respect of the submissions as to costs.

3. There be no order as to the appellant's costs of the review before the Victorian Civil and Administrative Tribunal in relation to the appellant's claim for loss of earnings.[14]

[1] (1980) 144 CLR 13, 35-6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ) ('Hardiman').

[2] Milne v A-G (Tas) [1956] HCA 48; (1956) 95 CLR 460, 477 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ).

[3] Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) [1987] FCA 393; (1987) 77 ALR 609, 612 (Wilcox J); El Deeb v Magistrates Court of South Australia [1999] SASC 113; (1999) 72 SASR 596, 598-9 [11]-[15] (Doyle CJ).

[4] Fernando v Medical Complaints Tribunal [2007] TASSC 44; (2007) 16 Tas R 237, 244 [16] (Crawford J).

[5] Psychologists Registration Board of Victoria v The Herald & Weekly Times Ltd [2000] VSCA 118 [11] (Charles JA).

[6] El Deeb v Magistrates' Court of South Australia [1999] SASC 113; (1999) 72 SASR 596, 598-9 [13]-[15] (Doyle CJ).

[7] Fernando v Medical Complaints Tribunal [2007] TASSC 44; (2007) 16 Tas R 237, 245-6 [19]-[20] (Crawford J).

[8] This concession, which was clearly appropriate, was made despite the fact that the AttorneyGeneral was not a party to the proceeding before VCAT, the consequence of which is that he was not a respondent to the application for leave to appeal within the meaning of r 64.03(2) of the Supreme Court (General Civil Procedure) Rules 2015. The effect of this with respect to the costs before VCAT is considered below.

[9] See, eg, Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52 [26] (Porter J).

[10] [1998] 1 VR 83 ('S').

[13] See the account of the procedural history in Pham v Victims of Crime Assistance Tribunal [2016] VSCA 102 [26] n 9.

[14] The appellant's claim for special financial assistance was not in issue in the appeal and no question of costs in respect of that claim now arises.