Plaintiff v Defendants

COSTS - Caldberbank offer - Assessment of costs where the plaintiff is successful in a small fraction of his claims - Rule 63.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) - 23 individual defendants who were jointly represented to be treated as a group notwithstanding that distinct claims were made against them - Adjustment based on deficiencies in successful party's discovery and record-keeping - Costs payable by litigation guardian.

STAY - Granted to enable a party to consider applying for an order to set off award of damages against order for costs.

Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff

1 On 1 October 2010, I delivered reasons for judgment ('Substantive Judgment')[1] in this proceeding in respect of the multiple causes of action that Mr Slaveski pleaded against the first defendant, the State of Victoria ('State'), and the second to twenty-fourth defendants, who are present or former police officers ('police defendants'). The second to twenty-fourth defendants are listed in the schedule to the order that is set out in the appendix to this judgment.

(a) on 13 December 2005, officers Kirkright, Baade, Sadler, Cole, Anderson, Knowles and Wendt (collectively, 'the seven detectives') committed trespass to land by remaining in Mr Slaveski's shop at 10 May Road, Lalor ('Lalor shop') for 30 minutes longer than was necessary for them to execute a search warrant;[2]

(b) on 13 December 2005, officers Kirkright and Knowles committed trespass to land by remaining in the recording studio at the Lalor shop after it became obvious that none of the items described in the search warrant could possibly be located there;[3]

(c) on 13 December 2005, officers Kirkright and Wendt committed trespass to land by remaining in the rear courtyard of the Lalor shop after it became obvious that none of the items described in the search warrant could possibly be located there;[4]

(d) on 13 December 2005, officer Wendt committed trespass to land by taking video footage inside the Lalor shop and the rear courtyard of activities and areas which were not connected to the lawful execution of the search warrant, and that officer Sadler was a joint tortfeasor with officer Wendt to the extent that he took the video footage in accordance with her instructions;[5]

(e) on 13 December 2005, officer Sadler committed trespass to goods on two occasions by taking documents, giving them to officers Cole and Anderson, and instructing them to transcribe information from the documents;[6]

(f) on 13 December 2005, officer Cole (on two occasions) and officer Anderson (on one occasion) committed trespass to goods by transcribing in their day book and diary, respectively, information from the documents that officer Sadler had provided to them, and that officer Sadler was a joint tortfeasor with officers Cole and Anderson because she instructed them to perform the acts constituting the trespass to goods;[7]

(g) in committing the torts set out at (a) to (f) above, the seven detectives acted in good faith based on a mistaken view of their powers and, accordingly, they were immune from personal liability pursuant to s 123(1) of the Police Regulation Act 1958 (Vic) ('PR Act');[8]

(h) pursuant to s 123(2) of the PR Act, the State was liable for the torts committed by the seven detectives;[9] and

(i) all other claims against the defendants should be dismissed.[10]

3 In my Substantive Judgment, I assessed the amounts that were payable by the State as follows:

(a) $12,200 in general damages for the trespasses to land that are referred to at [1](a), (b) and (c) above;

(b) $15,000 in general damages for the trespass to land that is referred to at [1](d) above;

(c) $200 in nominal damages for the trespasses to goods that are referred to at [1](e) above; and

(d) $900 in nominal damages for the trespasses to goods that are referred to at [1[11](f) above.11

4 During the trial, the parties agreed that Mr Slaveski's claims for aggravated damages, exemplary damages, interest and costs would be dealt with separately after I published my Substantive Judgment. Pursuant to orders that I made on 1 October 2010, the parties filed detailed written submissions on the issues of aggravated damages, exemplary damages, interest and costs and made oral submissions on 6 December 2010. On 6 December 2010, the defendants applied for a stay of 28 days in respect of any order for the payment of any moneys for damages, interest or costs.

5 For the reasons that follow, I have decided to dismiss Mr Slaveski's claims for aggravated and exemplary damages, to award interest in the amount of $1,457, to make costs orders in favour of the defendants and to grant a stay.

6 Aggravated damages are awarded to compensate a plaintiff when the harm done to him or her by a wrongful act of the defendant was aggravated by the manner in which the act was done.[12] They are compensatory in nature and are awarded 'for injury to the plaintiff's feelings caused by insult, humiliation and the like.'[13]

7 Because aggravated damages are compensatory in nature, attention is focused on the circumstances and manner in which the defendant's wrongdoing has inflicted harm on the plaintiff.[14] Such damages are intended to redress indignity or hurt pride.[15]

8 In determining whether to award aggravated damages, the Court considers 'whether the defendant's conduct lack[ed] bona fides, or [was] improper or unjustifiable'.[16]

9 The fact that a defendant's conduct satisfies the elements of a cause of action in tort does not of itself necessarily justify an award of aggravated damages. There must be some feature of that conduct that makes it appropriate to award aggravated damages over and above general damages.

10 In my Substantive Judgment, I found that the seven detectives were inside the Lalor shop between 10.13.26am and 11.43.26am, that it was unreasonable for them to be inside the shop for more than one hour for the purpose of executing the search warrant and that, accordingly, they were trespassers in the period from 11.13.26am until 11.43.26am.[17]

11 The defendants submitted that Mr Slaveski's claim for aggravated damages should be dismissed because there was nothing in the conduct of the seven detectives which lacked bona fides, was improper or unjustifiable. In any event, so it was said, there was no finding in the Substantive Judgment that Mr Slaveski had been insulted or humiliated by the acts of trespass committed by the seven detectives.

12 In her capacity as Mr Slaveski's litigation guardian and lay advocate, Mrs Slaveska made the following written submissions:[18]

the Plaintiff is entitled to aggravated damages because the plaintiff was humiliated by the conduct of the defendants, he was afraid by the defendants, and the defendants did not act in good faith, they simply did what they wanted to do as they had the power of the gun and did not display their police badge, they just used a stand over tactics to stand over the plaintiff, therefore they are liable for aggravated damages to the Plaintiff.

Further, the Plaintiff was helpless and afraid of the police presence because it is clear from the video footage that the plaintiff asked for coffee on numerous occasions and was refused. He was refused even to get a camera.

When the plaintiff and his wife told the defendants that they are steeling documents, the defendants namely Paul Kirkright, Baade and Sadler warned the plaintiff and his wife to be quite or otherwise to get out, and humiliate the plaintiff by saying on a stand over tactics that they have a warrant. That conduct constitutes fear and humiliation and injured the plaintiffs feelings, physically, mentally, emotionally and financially, therefore the Plaintiffs should be awarded aggravated damages, and by stealing those documents it did jeopardise the Plaintiff case in another jurisdiction.

13 In my Substantive Judgment, I made six findings that are relevant to the issue of aggravated damages.

I am satisfied that Mr Slaveski felt embarrassed and humiliated when he was arrested and handcuffed in the street in clear view of neighbouring traders and passers-by. ...

...

Officer Wendt's footage does not indicate that Mr Slaveski was afraid or intimidated at any stage of the search. On the contrary, he was cooperative and talked frequently with the seven detectives.[19]

The atmosphere in the shop was initially tense but became business-like. Mr Slaveski repeatedly protested his innocence and was animated and vocal. However, he remained calm, courteous and cooperative. He became more relaxed as the search progressed. He addressed officers Kirkright and Sadler by their first names. At times, he described officer Kirkright as 'my friend' and 'bro'.[20]

The police were calm and determined. While there was some light-hearted banter between officer Kirkright and Mr Slaveski, there was also an element of sarcasm directed towards Mr Slaveski. Officer Sadler remained very serious throughout. She avoided eye contact with Mr Slaveski and, when she addressed him, she did not refer to him by his name. Officer Cole was non-responsive when Mr Slaveski asked him some questions that were unrelated to the search warrant.[21]

17 The fourth, fifth and sixth findings were as follows:

(a) The acts of trespass were performed in good faith in the mistaken belief that they were authorised by law.

(b) The acts of trespass did not have any adverse impact on Mr Slaveski's physical or mental health. However, the experience of having seven armed police officers take over the shop caused Mr Slaveski to experience anger, frustration and mild, fleeting anxiety.

...

(h) Mr Slaveski was not mistreated during the period of unlawful occupation.[22]

18 In making the above findings, I was substantially assisted by the video footage of the events at the Lalor shop on 13 December 2005. I was able to see and hear for myself what Mr Slaveski did and said during those events.

19 There are two key questions that I need to determine. The first question is whether the conduct of the seven detectives lacked bona fides or was improper or unjustifiable. The second question is whether that conduct caused Mr Slaveski to feel insulted or humiliated.

20 The conduct of the seven detectives was unlawful, in the sense that it constituted the torts of trespass to land and trespass to goods. Their conduct, however, did not contain any feature which would justify an award of aggravated damages. In my Substantive Judgment, I expressly found that the seven detectives acted in good faith. There was nothing 'improper' about their conduct. The conduct was unjustifiable only in the sense that it exceeded their lawful authority and thereby constituted trespass.

21 In any event, there was nothing in the conduct of the seven detectives during the execution of the search warrant which caused Mr Slaveski to feel insulted or humiliated. Although Mr Slaveski felt embarrassed and humiliated when he was arrested and handcuffed, the arrest and handcuffing were lawful. Mr Slaveski's hurt feelings at the time of the arrest and handcuffing are not relevant to the issue of aggravated damages.

22 The sarcasm that was directed towards Mr Slaveski was not intended to cause offence and did not do so. The sarcasm was a means of humouring Mr Slaveski and maintaining a cordial atmosphere when Mr Slaveski became animated or boasted about his achievements.

23 I observed closely Mr Slaveski's behaviour, comments and general demeanour in the video footage. There was no indication that the embarrassment and humiliation that he had experienced during his arrest and handcuffing outside the Lalor shop continued inside the shop during the period of unlawful occupation from 11.13.26am until 11.43.26am.

24 It is true that Mr Slaveski experienced anger, frustration and mild, fleeting anxiety. I am not satisfied, however, that those feelings were caused by the acts of trespass as distinct from the lawful conduct of the seven detectives. In lawfully executing the search warrant, the seven detectives were entitled to be armed.

25 While the Victoria Police Manual ('VPM') required the seven detectives to display their police identification, in my Substantive Judgment, I found that the failure of the seven detectives to comply with the VPM did not invalidate either the arrest or the execution of the search warrant.[23] In addition, Mr Slaveski already knew officers Kirkright, Sadler and Cole, and officer Baade introduced himself when he arrested Mr Slaveski.

26 Mrs Slaveska relied on the fact that, during the period of occupation of the Lalor shop, the seven detectives refused several requests by Mr Slaveski to be permitted to drink coffee. In my Substantive Judgment, I found that the evidence suggested that, at least initially, those refusals were based on safety concerns.[24]

27 I reject Mrs Slaveska's contention that officers Kirkright, Baade and Sadler warned Mr Slaveski that he would be asked to leave the Lalor shop if he did not remain quiet. This warning was given to Mrs Slaveska rather than to Mr Slaveski. When the warning was given, Mrs Slaveska became upset, but Mr Slaveski remained calm.

28 It is true that both Mr and Mrs Slaveski protested when they saw officer Sadler giving to officer Cole some documents that they believed fell outside the terms of the search warrant. It is also true that officer Kirkright insisted that the documents fell within the terms of the warrant. In the Substantive Judgment, I found that the documents did not fall within the warrant. All that this demonstrates, however, is that officer Kirkright was mistaken about the scope of the warrant. He expressed his view and acted on it in good faith. His conduct did not cause Mr Slaveski to feel insulted or humiliated.

29 There was no evidence that the unlawful taking of video footage of activities and areas of the Lalor shop that were unconnected to the lawful execution of the search warrant caused Mr Slaveski to feel insulted or humiliated. Mrs Slaveska did not rely on the unlawful taking of video footage as conduct that warranted an award of aggravated damages.

30 The total amount of damages of $28,300 that I have awarded for trespass to land and trespass to goods adequately compensates Mr Slaveski in respect of the commission of those torts. There is no basis for additional compensation in the form of an award of aggravated damages.

31 Exemplary damages are non-compensatory damages that are awarded to punish the defendant and to deter repetition of tortious conduct.[25] Such damages are awarded where a defendant is guilty of 'conscious wrongdoing in contumelious disregard of another's rights'.[26]

32 In Victoria v Horvath,[27] the Court of Appeal held that exemplary damages cannot be awarded in respect of a liability that was transferred to the State under s 123(2) of the PR Act. The Court said:

It seems to us that the terms of s 123(1) and (2) of the Act do not contemplate that liability of individual police officers for an award of exemplary damages can be attached to the State. ... Although the provisions of s 123 are undoubtedly designed to be protective of police officers and, thus, to be given no narrow construction, they are nevertheless intended to operate so as to attach liability to the State only where that liability has been incurred for things necessarily or reasonably done in good faith in the course of duty. In other words, it seems to us that subs (1) of s 123 is intended to 'carve out' an area of conduct of police officers in respect of which they will be immune from personal liability and - despite imperfections of drafting - subs (2) is intending to attach to the State the liability against which the police officer is immunised by subs (1). If that is the intention of the section, as we think it is, then it does not transfer liability for conduct warranting an award for exemplary damages because, as we have already said, such conduct must necessarily be the antithesis of conduct for which subs (1) provides immunity.[28]

33 On the basis of Horvath, the defendants submitted that my finding in the Substantive Judgment that the seven detectives acted in good faith precludes an award of exemplary damages. I accept that submission. There is no basis for an award of exemplary damages in favour of Mr Slaveski.

34 The writ in this proceeding was filed on 5 September 2006 and the original statement of claim was filed on 3 September 2007. The original statement of claim, which was prepared by Mr Slaveski's then legal advisers, did not plead the causes of action of trespass to land and trespass to goods. Those causes of action were added to the proceeding on 15 June 2010. The total amount of damages of $28,300 that has been awarded in favour of Mr Slaveski relates to those causes of action.

35 Although I granted leave to Mrs Slaveska to plead the causes of action of trespass to land and trespass to goods on 29 April 2010, she did not file a further amended statement of claim until 15 June 2010. She deliberately delayed filing a further amended statement of claim because she wanted to include in it an allegation that the seven detectives had tampered with the video footage, even though I had repeatedly ruled against the inclusion of that allegation.[29]

36 The defendants accepted that, pursuant to s 60(1) of the Supreme Court Act 1986 (Vic) ('SC Act'), Mr Slaveski is entitled to interest on the damages amount of $28,300. They also agreed that the appropriate interest rate was the rate from time to time fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) ('PIR Act').

The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

38 The defendants submitted that, for the purposes of s 60(1) of the SC Act, the proceeding was commenced on 15 June 2010 and that Mr Slaveski is entitled to interest only from that date.

39 Since 1 February 2010, the rate of interest prescribed under s 2 of the PIR Act has been 10.5 per cent. The number of days between 15 June 2010 and 10 December 2010 is 179 days. On the basis of the defendants' submissions, Mr Slaveski would be entitled to an amount of $1,457 by way of interest.

40 Mrs Slaveska submitted that interest should be calculated from 13 December 2005, the date that the acts of trespass were committed, rather than from 15 June 2010. She contended that the claims for trespass to land and trespass to goods 'were originally in the Statement of claim and the defendants understood very clear how the Plaintiff puts his case but the defendants took an advantage of the Plaintiff being not legally represented and tried to manipulate the Plaintiff.'[30]

41 I reject Mrs Slaveska's submission that interest should be calculated from 13 December 2005. Section 60(1) of the SC Act does not empower the Court to allow interest calculated from any date before the commencement of the proceeding.[31]

42 I also reject the defendants' submission that the expression 'from the commencement of the proceeding' in s 60(1) of the SC Act means the commencement of the cause of action upon which the plaintiff has succeeded. A similar submission was considered and rejected by the Court of Appeal in Braeside Bearings Pty Ltd v H J Brignell & Associates (Boronia).[32] In that case, Tadgell JA, with whom Phillips and Callaway JJA agreed, held that 'a proceeding is to be understood to mean not the subject of a justiciable dispute but the means or the vehicle by which the subject matter of a dispute is brought before the court for adjudication.'[33]

43 Section 60(1) of the SC Act enables me to depart from its terms where 'good cause is shown to the contrary'. I am satisfied that, in the circumstances of this case, good cause has been shown for departing from the terms of s 60(1). This is because, as the causes of action upon which Mr Slaveski has succeeded were not pleaded until 15 June 2010, it would be inappropriate to award Mr Slaveski interest in respect of those causes of action for any period prior to 15 June 2010.

44 For the above reasons, I will award the amount of $1,457 for damages in the nature of interest pursuant to s 60(1) of the SC Act.

45 Section 24(1) of the SC Act provides that, subject to the provisions of any other Act or the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('Rules'), 'the costs of and incidental to all matters in the Court ... is in the discretion of the Court and the Court has full power to determine by whom and to what extent costs are to be paid.'

46 The power and discretion of the Court under s 24 of the SC Act must be exercised subject to, and in accordance with, O 63 of the Rules.[34]

47 A party to a proceeding is not entitled to recover any costs of the proceeding except by order of the Court.[35]

(1) The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding.

(2) Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding.

49 The Rules provide that the costs of a proceeding may be taxed on:

(d) such other basis as the Court may direct.[36]

50 Unless the Court orders otherwise, the costs of the proceeding are to be taxed on a party and party basis.[37] This means that the party whose costs are being taxed will be allowed to recover 'all costs necessary or proper for the attainment of justice or for enforcing or defending the rights' of that party.[38]

51 If costs are taxed on a solicitor and client basis, 'all costs reasonably incurred and of reasonable amount shall be allowed.'[39]

52 If costs are taxed on an indemnity basis, 'all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.' Any doubt as to whether the costs were unreasonably incurred or were unreasonable in amount is to be resolved in favour of the party in whose favour the costs order was made.[40]

53 One of the circumstances in which the Court may award indemnity costs against an unsuccessful plaintiff is where he or she has unreasonably rejected a settlement offer that was expressed to be made 'without prejudice save as to costs'. Such an offer is usually described as a 'Calderbank offer'.[41]

54 In the present case, Mr Slaveski sought an order for the payment of all his costs of the proceeding while the defendants sought an order for the payment of their costs of the proceeding, subject to an adjustment for the costs of the causes of action in respect of which Mr Slaveski was successful.

55 In addition, some of the police defendants sought an order for costs on an indemnity basis based on Mr Slaveski's failure to accept Calderbank offers that were made by them on 31 October 2008. Those defendants were officers Bingham, Smithwick, Kirkright, Cole, Sadler, Tennyson, Parker, Lowerson, Wheeler, Smith, Roberts, Robinson, Stephen, Rhodes, Barton, Jones, Peck, Nolan and Baade (collectively, 'the Calderbank defendants').

56 The issues that I need to resolve in relation to costs are:

(a) whether any costs should be awarded in favour of any of the defendants;

(b) if costs are to be awarded in favour of any of the defendants, whether the Calderbank defendants should be awarded costs on an indemnity basis;

(c) whether, in relation to costs, the position of the police defendants should be considered individually or as a group;

(d) if costs are to be awarded in favour of any of the defendants, whether the costs should be apportioned in relation to the claims in respect of which Mr Slaveski was successful;

(e) whether an adjustment should be made to any costs order in favour of the State due to the State's deficient discovery and document retention; and

(f) the orders for costs that should be made against Mr Slaveski personally and Mrs Slaveska personally in her capacity as Mr Slaveski's litigation guardian.

Should any costs be awarded in favour of any of the defendants?

57 Rule 63.04 of the Rules empowers the Court to make an order for costs in relation to a particular question in, or a particular part of, the proceeding.

58 In the present case, Mr Slaveski sued the defendants in respect of 13 separate incidents that occurred between 8 September 2000 and 7 May 2007, and made a general claim in negligence against officer Lowerson. Mr Slaveski sought damages for assault and battery, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods, conversion, detinue and negligence. In respect of some of the incidents, Mr Slaveski relied on more than one cause of action.

59 In the Substantive Judgment, I found in favour of Mr Slaveski only in respect of one incident, namely, the incident that took place on 13 December 2005. In respect of that incident, Mr Slaveski pleaded assault, battery, false imprisonment, trespass to land, trespass to goods, conversion, detinue and negligence. He was successful only in relation to trespass to land and trespass to goods.

60 The trial occupied 115 sitting days. Only a small fraction of the trial related to the causes of action in respect of which Mr Slaveski was successful. Accordingly, Mr Slaveski was substantially unsuccessful in the proceeding. Put another way, the defendants were substantially successful in defending the proceeding.

61 Throughout the first phase and the early stages of the second phase of the trial,[42] I repeatedly warned the parties about the risks of litigation. In particular, I pointed out that the multiplicity of claims against the separate defendants meant that the proceeding would not necessarily lead to an 'all or nothing' result. I specifically warned Mr and Mrs Slaveski that a possible outcome of the proceeding was that Mr Slaveski might succeed on some claims against some defendants, but that the damages awarded in his favour might be substantially exceeded by the costs awarded in favour of the other, successful, defendants.[43]

62 In the light of the above, it is appropriate for the Court to award costs in favour of the defendants, with an appropriate adjustment to take into account Mr Slaveski's success in respect of the claims for trespass to land and trespass to goods.

Should the Calderbank defendants be awarded costs on an indemnity basis?

63 The offers of settlement that were made on behalf of the Calderbank defendants on 31 October 2008 were similar in nature. As Mr Slaveski's claims against officer Parker involved multiple incidents and multiple causes of action, I will set out below the offer that was made on his behalf. The letter containing the offer was headed 'Without prejudice save as to costs' and was in the following terms:[44]

We refer to the above proceeding and to the unsuccessful mediation that was held on 9 September 2008.

We are instructed to put forward the following on behalf of the Eighth Defendant.

1. In your Further Amended Statement of Claim dated 27 March 2008, you allege that on 8 June 2006 and on 13 July 2006, the Eighth Defendant requested security guards to unlawfully eject you from the Melbourne Children's Court whilst there to provide evidence against the Eighth Defendant in relation to a family dispute.

The allegations disclose no cause of action against the Eighth Defendant. Your action against the Eighth Defendant in relation to these allegations must therefore fail.

1. You further allege that on 12 July 2006 the Eighth Defendant attended outside your May Road premises and in circumstances in which the Eighth Defendant stalked you and loitered around your business trading premises which constituted an assault; and made threatening gestures such as drawing a finger across his throat and emulating a pistol action with his hand to you and your family.

At trial, the Eighth Defendant will deny such allegations, and will further adduce evidence that he was performing policing duties which caused him to be in the proximity to your premises at 10 May Road. As the Eighth Defendant acted within the scope of his duties at all times and had a legitimate and lawful reason to be in the location he was in, your action is bound to fail.

1. You allege that on 20 July 2006 the Eighth Defendant stalked you at Epping Plaza, High Street in Epping, unlawfully and without legal justification or cause, and in circumstances which constituted an assault.

At trial, the Eighth Defendant will deny such allegations, and will further adduce evidence that he was performing policing duties which caused him to be in the proximity to you at the Epping Plaza, High Street in Epping. As the Eighth Defendant acted within the scope of his duties at all times and the conduct alleged could not, on any construction establish stalking, your action is bound to fail.

1. You allege that on 14 August 2006 the Eighth Defendant stalked you at Epping Plaza, High Street in Epping, unlawfully and without legal justification or cause, and in circumstances which constituted an assault.

The Eighth Defendant will deny the above allegations and will adduce evidence that he was on leave at the time of the allegation. Your action is bound to fail as the facts alleged do not constitute stalking on any analysis and could not sustain an action for assault.

In the interests of ending the Eighth Defendant's involvement in the proceeding, we have been instructed to offer that if you are prepared to discontinue your claim against our client within 21 days of receipt of this letter, then our client would be prepared to bear its own costs in respect of the costs incurred in defending this proceeding to date.

In the event that this offer is not accepted by you, or lapses, and you do not succeed against our client at trial, then our client will rely on this letter on the question of costs to seek an order for solicitor/client or indemnity costs from the date of this letter. In seeking that order, our client will rely on the principles set out in Calderbank v Calderbank [1975] All ER 333 and Cutts v Head [1983] EWCA Civ 8; [1984] 1 All ER 597 which have been applied in Victoria by His Honour Judge Byrne in Mutual Community Limited v Lorden Holdings Pty Ltd [Unreported 28 April 1993] and by His Honour Gillard J in MT Associates Pty Ltd v Aqua-max Pty Ltd & Anor (3) [2000] VCS 163.

64 In Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2],[45] the Court of Appeal stated that the rejection of a Calderbank offer is a matter to which the Court should have regard when considering whether to order indemnity costs.[46] The Court went on to say that the critical question is whether the rejection of the offer was unreasonable in the circumstances.[47]

65 The Court made the following observations about the test of reasonableness:

The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for an indemnity costs [order] in the event of the offeree's rejecting it.

It has been argued on occasion that the maker of a Calderbank offer should not be entitled to costs unless the offer sets out, with some reasonable specificity, the basis for the offeror's contention that the offeree should accept the compromise - for example, because the offeree's case was hopeless or because the offeree had no reasonable prospects of doing better in the proceeding than was being offered in advance.

Once again, we think it neither necessary nor desirable to lay down any general rule in this regard.[48]

66 Mr Gipp, who appeared for the police defendants, submitted that it was appropriate to award indemnity costs in favour of the Calderbank defendants. He contended that Mr Slaveski's rejection of the Calderbank offers was unreasonable having regard to the following circumstances:

(a) the offers were made at an early stage of the proceeding following an unsuccessful mediation on 9 September 2008;

(b) considering that the issues in the trial were fresh in the plaintiff's mind after the conduct of the mediation, the time of 21 days for the plaintiff to consider the offers was reasonable;

(c) the Calderbank defendants' offers to bear their own costs were reasonable at that stage of the proceeding;

(d) Mr Slaveski's prospects of success, assessed as at 31 October 2008, were extremely poor, as borne out by the Substantive Judgment in which none of the claims against the defendants as they were pleaded on 31 October 2008 were successful;

(e) the terms of the offers were clear and unambiguous;

(f) the Calderbank offers specifically referred to the possibility of an application for indemnity costs as an alternative to solicitor and client costs; and

(g) the Calderbank offers represented a real element of compromise.

67 For the reasons set out below, I am of the opinion that Mr Slaveski's rejection of the Calderbank offers was not unreasonable.

68 The question of reasonableness must be determined having regard to the position of the person who receives the Calderbank offer. In the present case, the recipient was Mr Slaveski who, to the defendants' knowledge, was not legally represented at the time that the offers were made. As the defendants' lawyers had dealt with Mr Slaveski since 2007, it would have been readily apparent to them that he had had limited formal education. Mr Slaveski's status as a self-represented litigant is also relevant in determining whether the terms of the offer, as well as the legal consequences of rejecting the offer, were clear. Two issues arise for consideration.

69 The first issue is whether it was reasonable to expect a person in Mr Slaveski's position to understand what was meant by 'an order for solicitor/client or indemnity costs'. Even if Mr Slaveski understood that there were different bases for awarding costs, it is doubtful that he appreciated the practical consequences, in monetary terms, of awarding costs on one basis rather than on another basis.

70 The second issue is whether it was reasonable to expect a person in Mr Slaveski's position to understand what was meant by 'the principles set out in Calderbank v Calderbank [1975] All ER 333 and Cutts v Head [1984] 1 All ER 597 which have been applied in Victoria ... in Mutual Community Limited v Lorden Holdings Pty Ltd [Unreported 28 April 1993] and ... in MT Associates Pty Ltd v Aqua-max Pty Ltd & Anor (3) [2000] VCS 163.'[49] In the absence of legal advice, most lay people would not understand what was meant by the quoted statement. I am certain that Mr Slaveski did not understand it.

71 Another relevant factor in the present case is that only very brief reasons were stated in each of the letters for the contention that Mr Slaveski's claim against the relevant Calderbank defendant was 'bound to fail'.[50] Those reasons generally relied on the evidence to be given by the relevant police defendant and other police defendants, without setting out that evidence in detail. No reference was made to any documents, even in the case of offers that were made on behalf of police defendants whose defence was that they were not present at the Lalor shop when a particular incident took place.

72 It was reasonable for Mr Slaveski to conclude from the Calderbank offers that the Calderbank defendants were confident that they would successfully defend the proceeding on the basis that the Court would believe their testimony rather than the testimony of Mr Slaveski and his witnesses. In the circumstances of this case, it was not objectively unreasonable for Mr Slaveski to decide to leave it up to the Court to determine whether his testimony, and the testimony of his witnesses, was to be preferred to the testimony of the police defendants.

73 On their face, many of Mr Slaveski's claims were plausible. Prior to the hearing, it was not self-evident that they would fail. The outcome of many claims turned on the credit of the witnesses, while the outcome of others depended, in part, on a detailed analysis of complex legal issues.

74 There is another important reason why it was not unreasonable for Mr Slaveski to reject the Calderbank offers. At the time that the offers were made, the defendants' discovery was seriously deficient. As set out in Part 8(2) of the Substantive Judgment, many relevant documents were not discovered by the defendants until after the commencement of the trial and the late discovery of some documents necessitated the recalling of some of the defendants' witnesses.

75 Some of the documents that had not been discovered as at 31 October 2008 were directly relevant to an assessment of the strength of the Calderbank defendants' cases. For example, officer Wheeler's defence was that he was not present at the Lalor shop on 8 September 2000. However, his diary - which could have assisted in establishing his whereabouts on 8 September 2000 - was not produced until 12 April 2010 and his running sheet was not produced at all because it had been destroyed.[51]

76 Another example relates to the incidents of 12 and 20 July 2006 which are referred to in the Calderbank offer that was made on behalf of officer Parker. The terms of that offer are set out at [63] above. Important contemporaneous documents relating to those incidents were never produced for inspection because they had bee[52]destroyed.52

77 For the above reasons, it would not be appropriate to award costs in favour of the Calderbank defendants on an indemnity basis.

Should the police defendants be considered individually or as a group?

78 Mr Gipp made detailed submissions about how costs should be apportioned in respect of the police defendants on the assumption that the position of each police defendant would be considered individually in relation to costs. For the reasons set out below, I am of the opinion that the police defendants should be treated as a group in relation to costs.

79 At all stages of the proceeding, the police defendants were represented by one set of lawyers. Apart from some obvious examples - such as the filing of separate defences on behalf of each police defendant - the steps that were taken in the proceeding on behalf of the police defendants were taken for all of them jointly. There was some evidence that the police defendants were not funding the litigation personally. It can be inferred from this evidence that the police defendants were not sent separate tax invoices by the lawyers that were acting for them. In the absence of separate tax invoices, it would be very difficult to apportion costs to individual police defendants.

80 Another important consideration is that, because Mr and Mrs Slaveski were not legally represented, the evidence at trial was not given in a logical, sequential manner by reference to each of the incidents. Mr and Mrs Slaveski tended to move indiscriminately from one incident to another, which meant that the evidence for each incident was not confined to particular days or particular parts of the transcript. This would also make it very difficult to apportion costs to individual police defendants.

Apportionment of costs for claims in respect of which Mr Slaveski was successful

81 At [62] above, I concluded that, as the defendants were substantially successful, they should be awarded their costs of the proceeding, subject to an appropriate adjustment to take into account Mr Slaveski's success in respect of the claims for trespass to land and trespass to goods. As these claims were made after the commencement of the second phase of the trial on 1 February 2010, they can only affect costs incurred after that date.

82 In my opinion, the most appropriate method for calculating the adjustment is to work out the proportion of the trial that was taken up by the successful claims for trespass to land and trespass to goods.

83 Based on my knowledge of the proceeding, I have estimated that 43 hours of trial time[53] related to the successful claims for trespass to land and trespass to goods. I have calculated the 43 hours as follows:

(a) five hours, representing 2.5 hours of the evidence of each of Mr and Mrs Slaveski, including viewing the DVDs containing the video footage;

(b) 17.5 hours, representing 2.5 hours of the evidence of each of the seven detectives, including evidence about the events at the Lalor shop, the briefing prior to Mr Slaveski's arrest and viewing the DVDs containing the video footage;

(c) five hours, representing one hour of the evidence of each of the five medical witnesses (Dr Duggal, Dr Williams, Dr Farnbach, Dr Neill and Ms Ranaweera);

(d) two hours, representing one hour of the evidence of each of the two accountants (Ms Petreska and Ms Baldwin);

(e) two hours of the evidence of Aysen Cosar, a potential client of Mr Slaveski that was refused entry to the Lalor shop on 13 December 2005;

(f) 1.5 hours for viewing the original videotapes in order to verify the accuracy of the DVDs containing the video footage; and

(g) 10 hours for the preparation of written submissions in relation to the successful claims for trespass to land and trespass to goods, and for the making of oral submissions in respect of those claims.

84 On average, each sitting day had a duration of five hours. Forty-three hours translates to 8.6 sitting days. I will round this number up to nine sitting days.

85 The second phase of the trial from 1 February 2010 until 18 August 2010 had a duration of 91 sitting days. Nine sitting days represents 9.8 per cent of the total duration of the second phase of the trial. I will round this number up to 10 per cent.

86 On the basis of the above calculations, an adjustment of 10 per cent of the police defendants' costs of the second phase of the trial will be made to take into account Mr Slaveski's success in relation to the claims for trespass to land and trespass to goods.

87 An additional adjustment is necessary to take into account Mr Slaveski's own costs in relation to the successful claims for trespass to land and trespass to goods.

88 As Mr and Mrs Slaveski were not legally represented, they did not incur legal costs. Also, they did not incur Court fees or transcript fees because those fees were waived by the Court.

89 As a self-represented litigant, Mr Slaveski is entitled to be reimbursed for any out-of-pocket expenses, such as photocopying fees and transport costs, that he has incurred in relation to the successful claims for trespass to land and trespass to goods. He is also entitled to a witness fee for the time that he gave evidence in relation to those claims.[54] No evidence was presented by Mr and Mrs Slaveski in relation to their out-of-pocket expenses. At the hearing on 6 December 2010,[55] I proposed to the parties that I make a generous allowance of $4,500, representing $500 for each of the nine sitting days that related to the successful claims for trespass to land and trespass to goods, to cover Mr Slaveski's expenses for those days. No party objected to this course.

90 The sum of $4,500 that is referred to at [89] above does not include any out-of-pocket expenses that Mr Slaveski incurred to Dr Duggal, Dr Williams, Dr Farnbach, Ms Ranaweera, Ms Petrevska, Ms Baldwin or Ms Cosar. It is appropriate that a further allowance be made for any out-of-pocket expenses that Mr Slaveski incurred to these witnesses.

91 At the hearing on 6 December 2010, the defendants agreed that the adjustments referred to at [89] and [90] above should be made to any order for costs that is made in favour of the State, rather than to any order for costs that is made in favour of the police defendants.

Adjustment to the State's costs due to its deficient discovery

92 In Part 8(2) of the Substantive Judgment, I described in detail the serious deficiencies in the State's discovery and document retention.

93 The State is well-resourced and aspires to act as a model litigant. The Court is entitled to expect that the State will have a detailed understanding of its discovery and document retention obligations, and that it will comply with those obligations in a timely manner. In this proceeding, that expectation was not fulfilled.

94 Although in my Substantive Judgment I concluded that the deficiencies in the State's discovery and document retention caused only short-term inconvenience to Mrs Slaveska and to the Court and did not result in any substantive prejudice or unfairness,[56] those deficiencies were sufficiently serious that the Court ought to take them into account in exercising its discretion in relation to costs.

95 In all the circumstances, it is appropriate to reduce any costs awarded in favour of the State by 10 per cent to reflect the Court's displeasure in relation to the deficiencies in the State's discovery and document retention.

Costs awarded against Mr Slaveski personally and Mrs Slaveska personally

96 As the successful claims for trespass to land and trespass to goods were pleaded after the commencement of the second phase of the trial on 1 February 2010, none of the costs that were incurred by any of the parties prior to that date related to those claims.

97 Mrs Slaveska's appointment as litigation guardian took effect on 28 January 2010. Mr Slaveski is personally liable for costs incurred up to and including 27 January 2010 and Mrs Slaveska is personally liable for costs incurred on and from 28 January 2010.[57]

98 As no costs of any party incurred prior to 28 January 2010 were referrable to the successful claims for trespass to land and trespass to goods, I will make the following orders in relation to the payment of costs by Mr Slaveski:

(a) Mr Slaveski pay the costs of the police defendants, including any reserved costs, calculated on a party and party basis up to and including 27 January 2010; and

(b) Mr Slaveski pay 90 per cent of the State's costs, including any reserved costs, calculated on a party and party basis up to and including 27 January 2010.

99 I will make the following orders in relation to the payment of costs by Mrs Slaveska:

(a) Mrs Slaveska pay 90 percent of the costs of the police defendants, including any reserved costs, calculated on a party and party basis on and from 28 January 2010; and

(b) Mrs Slaveska pay 80 per cent of the State's costs, including any reserved costs, calculated on a party and party basis on and from 28 January 2010, less:

(ii) any out-of-pocket expenses incurred for the purposes of the proceeding by Mr Slaveski or Mrs Slaveska to Dr Duggal, Dr Williams, Dr Farnbach, Ms Ranaweera, Ms Baldwin, Ms Petreska and Ms Cosar.

100 At the hearing on 6 December 2010, Mr Ihle, who appeared for the State, applied for a stay of 28 days in respect of any order for the payment of any damages, interest or costs. The stay was sought for the purpose of enabling the State to consider whether to make any application to the Court, including an application to set off the State's obligation to pay damages to Mr Slaveski against Mr Slaveski's obligation to pay costs to the State.

101 Mr Gipp acquiesced in the application for a stay. Mrs Slaveska opposed the application because she erroneously believed that the stay would preclude the commencement of an appeal while the stay was in force.

102 In the circumstances, I will grant a stay of 28 days in relation to any order for the payment of damages, interest and costs.

103 The order that I will make is set out in the appendix to this judgment.

LUPCO SLAVESKI (by his litigation guardian SNEZANA SLAVESKA)

Mrs S. Slaveska, the litigation guardian of the Plaintiff.

Mr B. Ihle of Counsel for the Firstnamed Defendant.

Mr R. Gipp of Counsel for the Secondnamed to Twenty-Fourthnamed Defendants.

1. The Court's Reasons for Judgment are at: Slaveski v Victoria [2010] VSC 441 and Slaveski v Victoria [2010] VSC 569.

2. This Judgment is signed by the Judge pursuant to Rule 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

2. The Plaintiff's claims against the Secondnamed to Twenty-Fourthnamed Defendants are dismissed.

3. The Plaintiff pay the costs of the Secondnamed to Twenty-Fourthnamed Defendants, including any reserved costs, calculated on a party and party basis up to and including 27 January 2010.

4. The Plaintiff pay 90 per cent of the costs of the Firstnamed Defendant, including any reserved costs, calculated on a party and party basis up to and including 27 January 2010.

5. The Plaintiff's litigation guardian, Snezana Slaveska, pay 90 per cent of the costs of the Secondnamed to Twenty-Fourthnamed Defendants, including any reserved costs, calculated on a party and party basis on and from 28 January 2010.

6. The Plaintiff's litigation guardian, Snezana Slaveska, pay 80 per cent of the costs of the Firstnamed Defendant, including any reserved costs, calculated on a party and party basis on and from 28 January 2010, less:

(b) any out-of-pocket expenses incurred for the purposes of the proceeding by the Plaintiff or Snezana Slaveska to Dr Gobind Duggal, Dr John Williams, Dr Rodney Farnbach, Shalika Ranaweera, Jacqueline Baldwin, Salina Petreska and Aysen Cosar.

7. The payment of damages, interest and costs pursuant to this judgment be stayed for 28 days from the date of this judgment.

[1] Slaveski v Victoria [2010] VSC 441 (1 October 2010).

[2] Substantive Judgment [5], [1458], [1459], [2327].

[3] Substantive Judgment [5], [1458], [1459], [2327].

[4] Substantive Judgment [5], [1458], [1459], [2327].

[5] Substantive Judgment [5], [1380]-[1383], [1458], [1459], [2327].

[6] Substantive Judgment [5], [1460], [1461], [2346].

[7] Substantive Judgment [5], [1460], [1461], [2346].

[8] Substantive Judgment [5], [2360]-[2363].

[9] Substantive Judgment [5], [2360]-[2363].

[12] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 149 ('Uren').

[13] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 8; De Reus v Gray [2003] VSCA 84; (2003) 9 VR 432, 452 [28].

[14] Uren [1966] HCA 40; (1966) 117 CLR 118, 130; De Reus v Gray [2003] VSCA 84; (2003) 9 VR 432, 452 [28].

[15] Uren [1966] HCA 40; (1966) 117 CLR 118, 151.

[16] Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, 237; Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, 514.

[17] Substantive Judgment [1054], [1459], [1460].

[19] Substantive Judgment [2184], [2186].

[22] Substantive Judgment [2329](a), (b), (h).

[25] Uren [1966] HCA 40; (1966) 117 CLR 118, 149.

[26] Uren [1966] HCA 40; (1966) 117 CLR 118, 154; Gray v Motor Accident Commission (1998) 196 CLR 1, 7 [14].

[27] [2002] VSCA 177; (2002) 6 VR 326 ('Horvath').

[28] Horvath [2002] VSCA 177; (2002) 6 VR 326, 350 [62] (citations omitted).

[29] See Slaveski v Victoria [2010] VSC 200 (19 May 2010).

[31] See Saunders v Nash [1991] VicRp 47; [1991] 2 VR 63, 68; Tankard v Chafer [2005] VSC 171 (20 May 2005) [77].

[32] [1996] VicRp 3; [1996] 1 VR 17 ('Braeside').

[33] Braeside [1996] VicRp 3; [1996] 1 VR 17, 19.

[41] The name is derived from Calderbank v Calderbank [1975] All ER 333.

[42] As discussed in the Substantive Judgment at [51] and [52], the first phase of the trial commenced on 3 August 2009 and ended on 14 December 2009. The second phase of the trial commenced on 1 February 2010 and ended on 18 August 2010. During the first phase, Mr Slaveski represented himself with the assistance of Mrs Slaveska as a McKenzie friend,. During the second phase, Mrs Slaveska appeared on behalf of Mr Slaveski as his litigation guardian and lay advocate.

[45] [2005] VSCA 298; (2005) 13 VR 435 ('Hazeldene').

[46] [2005] VSCA 298; (2005) 13 VR 435, 441 [20].

[47] Hazeldene [2005] VSCA 298; (2005) 13 VR 435, 441 [23].

[48] Hazeldene [2005] VSCA 298; (2005) 13 VR 435, 441 [25]-[27] (citation omitted).

[50] In some of the letters, other expressions such as 'cannot succeed' and 'must therefore fail' were used.

[51] Substantive Judgment [557]-[561], [2372], [2378].

[52] See Substantive Judgment [2372], [2374].

[53] Sub-para (g) includes some out-of-court work.

[54] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 417.

[55] See above [4].

[57] See Slaveski v Victoria [2009] VSC 596 (14 December 2009) [39].