Plaintiff v Defendant

2 The parties made written submissions about costs.

3 The Commissioner seeks an order that Mr Beling pay her costs, of and incidental to, this proceeding on a standard basis up to, and including, 27 May 2020, being the date of the expiry of an offer of settlement made in a letter dated 12 May 2020, and that from 28 May 2020, he pay her costs on an indemnity basis. The offer was to settle the proceeding on the basis that the appeal be dismissed with no order as to costs. The offer was open for a fortnight, but Mr Beling did not accept it. They also seek the costs of Mr Beling's summons dated 20 May 2022 in which he sought various interlocutory orders, which I dismissed.

4 Mr Beling argued that the usual rule as to costs should not apply and that, despite his case being dismissed, he was entitled to an order that the Commissioner, or her legal representatives, pay his disbursements personally, including any reserved disbursements. In the alternative, he submitted that there should be no order as to costs. Failing this, Mr Beling sought an order under the Appeal Costs Act 1998 because of what he described as the Commissioner's 'errors and misconduct'. He alleged that the Commissioner had failed to comply with her obligations under the Civil Procedure Act 2010, failed to negotiate costs in good faith, and engaged in misconduct. He argued that the Court had no jurisdiction to hear and determine some of the dominant issues in dispute which alleged misconduct by judicial officers. He contended that he had been successful in obtaining a significant settlement offer from the Commissioner. The Court's judgment had given little, or no, analysis or consideration of the facts and significant authorities upon which he relied, including in relation to alleged conspiracies involving judicial officers.

5 In my opinion, Mr Beling should pay the Commissioner's costs of the proceeding. None of the matters relied on by Mr Beling have any substance and mainly repeat arguments that he made unsuccessfully at the hearing. His very serious allegations against the Commissioner, judicial officers and others have been rejected consistently by the courts that have considered them, but he still continues to make them. For example, upon Mr Beling unsuccessfully seeking to appeal interlocutory orders that I made in this proceeding and orders made in a related proceeding, the Court of Appeal ordered that he pay the Commissioner's costs on an indemnity basis stating:[2]

While the applicant was self-represented, nevertheless, he was admitted to practise as a legal practitioner, and he has practised as a legal practitioner for a number of years. It is a matter of particular concern that, as we pointed out in our substantive judgments, the applicant made a number of very serious allegations, which were wholly unsupported and were without any evidentiary or other foundation, including allegations of fraud, dishonesty and falsification of documents that had been lodged with VCAT. In our reasons in the first appeal, we noted that a significant number of allegations and propositions, advanced by the applicant, were wholly lacking in any evidentiary support, and we concluded that a number of the bases, upon which the applicant had sought leave to appeal, were quite hopeless. Further, the application for an extension of time and the application for the stay were entirely without merit.

As a legal practitioner, the applicant ought to have known, and been acutely aware of, his obligation not to advance propositions in court which allege dishonesty, fraud or the like without an appropriate and sound factual foundation, and of his obligation not to advance submissions to the Court which were so devoid of merit.

In those circumstances, it is appropriate that the Court should order that the applicant pay the respondent's costs in each matter on an indemnity basis.

6 Mr Beling has continued to make and widen his unsubstantiated allegations, despite the courts repeatedly telling him that he has produced no evidence to support them.

7 I am satisfied that the Commissioner has established that Mr Beling unreasonably refused her offer of settlement. It was made at an early stage, involved a reasonable compromise in the context of this proceeding, which had limited prospects of success. It foreshadowed an application for indemnity costs if the offer was rejected and gave Mr Beling a reasonable time to consider it.[3]

8 There is no basis for awarding Mr Beling a certificate under the Appeal Costs Act.

9 Therefore, I will order that Mr Beling pay the Commissioner's costs of this proceeding on a standard basis up to, and including, 27 May 2020 and thereafter on an indemnity basis, including the cost of and incidental to, his summons filed on 20 May 2022 on an indemnity basis. The costs that I will order him to pay the Commissioner are to be assessed by the Costs Court in default of agreement.

[1] Beling v Legal Services Commissioner (No 2) [2023] VSC 212.

[2] Beling v Victorian Legal Services Commissioner (No 2) [2021] VSCA 271, [13]-[15] (citations omitted).

[3] Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435.