Plaintiff v Defendants

1 On 23 October 2025, I published reasons for judgment in respect of the first defendant's application by amended summons dated 2 June 2025 ('Primary reasons').[1]

2 On that occasion, I indicated that it should be ordered that the application be dismissed, although no such order was then made. The hearing was adjourned to 28 October 2025 in order that the parties might propose orders, particularly in respect of costs.

3 As will be apparent from the Primary reasons, there were two aspects to the first defendant's application, namely that -

(a) pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), the proceeding should be transferred to the Supreme Court of Queensland ('transfer issue'); and

(b) by reference to s 58 of the Judiciary Act 1903 (Cth) ('Judiciary Act'), the Court should decline to exercise jurisdiction ('jurisdictional issue').[2]

4 It will also be apparent from the Primary reasons that -

(a) on 30 May 2025, the hearing of the application had been adjourned in order that an amended summons might be filed, s 78B notices served and written submissions prepared;

(b) after those steps were taken, the matter came back on for argument on 28 July 2025;

(c) the two issues in the application were substantial and discrete;

(d) the first defendant and fourth defendant had carriage of all substantial aspects of the argument in respect of the transfer issue;

(e) the jurisdictional issue was only pursued by the first defendant (and that issue included an argument concerning submission to jurisdiction, or waiver); and

(f) the second and third defendants did not file written submissions or advance any substantial argument in respect of either issue.

5 On 25 October 2025, the parties served proposed orders. In substance -

(a) the plaintiff sought that the first defendant pay her costs of the application;

(b) the first defendant sought that -

(i) the first, second and fourth defendants pay the plaintiff's costs of the application;

(ii) the third defendant bear its own costs of the application;

(iii) all parties bear their own costs of the hearing on 30 May 2025;

(c) the second and third defendants each sought that their costs of the application be in the proceeding; and

(d) the fourth defendant sought that -

(i) the first defendant pay the plaintiff's costs of the application; and

(ii) the 'plaintiff/first defendant' pay the fourth defendant's costs of and occasioned by the adjournment of the hearing on 30 May 2025.

6 At the resumed hearing on 28 October 2025, the parties' representatives addressed the rationales for the various orders sought.

7 Counsel for the plaintiff relevantly submitted that -

(a) the main issue was the costs of the adjournment on 30 May 2025;

(b) the fundamental cause of the adjournment was that the first defendant had raised the jurisdictional issue without formally seeking to amend its summons;

(c) the reaction of the plaintiff's solicitors had not been perfect, but was understandable; and

(d) there had later been a 'clear inflection point' at which 'the importance of the ... [jurisdictional issue] was evidently appreciated and a request for an adjournment was made [however] ... the response of the first defendant ... was hardly an accommodating or reasonable [one] ...'.[3]

8 Counsel for the plaintiff also applied to expand the primary order sought such that all defendants would pay the plaintiff's costs in respect of the transfer issue, but the first defendant would pay the plaintiff's costs in respect of the jurisdictional issue.[4]

9 In response, senior counsel for the first defendant submitted, relevantly, that -

(a) the orders proposed by the first defendant 'do justice to both the involvement of the parties and the outcome';

(b) more particularly, the first, second and fourth defendants should have a costs liability in respect of the transfer issue, although the third defendant is in a different position because it did not 'enter the fray'; and

(c) the hearing on 30 May 2025 was not adjourned because the first defendant was required to amend its summons - rather, the plaintiff was not ready to deal with the matter.[5]

10 The solicitor for the second defendant submitted that -

(a) the first defendant had been the 'moving party' and should pay the plaintiff's costs of the application;

(b) the affidavit of the solicitor for the second defendant had been prepared in response to an affidavit of the solicitor for the first defendant;

(c) the second defendant had otherwise 'provided no written or oral submissions on the transfer application [and] made absolutely no comment whatsoever on the constitutional point'; and

(d) in the circumstances, the second defendant's position was akin to that of the third defendant, which had not entered the fray.[6]

11 The solicitor for the third defendant said that its position was similar to that of the second defendant and that no order for costs should be made against the third defendant.[7]

12 Counsel for the fourth defendant relevantly submitted that -

(a) the fourth defendant accepted that costs ought follow the event;

(b) in that regard, the first defendant should pay the plaintiff's costs as the fourth defendant, in particular, had not brought the application;

(c) that said, if the Court were to consider that the fourth defendant should share a portion of the costs, any such order should differentiate between the transfer and jurisdictional issues and, if the Court were so minded, the fourth defendant should share a liability with the first defendant in respect of the transfer issue only, which, it was said, should account for '50 per cent of the overall summons';

(d) the 'late adjournment' on 30 May 2025 had been entirely avoidable.[8]

13 In respect of the latter point, counsel clarified that the costs thrown away essentially amounted to the brief fees for the appearances of both senior and junior counsel on 30 May 2025 as well as the costs of the instructing solicitor travelling to attend that hearing.[9]

14 In the course of argument, all representatives assented, expressly or by silence, to the suggestion that any substantive costs orders made should be stayed pending the final determination or resolution of the proceeding.[10]

15 The submissions to which I have referred were advanced against the background of the affidavits filed in respect of the hearing on 30 May 2025, in particular, as well as the accepted principles relating to the making of orders for costs.

16 In respect of the latter, in Thurin v Krongold Constructions (Aust) Pty Ltd (No 2), McLeish, Niall and Walker JJA stated -

Pursuant to s 24(1) of the Supreme Court Act 1986, the Court has a broad costs discretion. In exercising its discretion, the Court is entitled to look to the realities of the litigation and it will attempt to do 'substantial justice' between the parties. Accordingly, while the general position is that costs should follow the event, such an order may not be appropriate in every case. In particular, where there is a multiplicity of issues, and mixed success has been enjoyed by the parties, the Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis.[11]

17 As to the affidavit material,[12] it is presently sufficient to refer to the following events.

18 The jurisdictional issue was raised by the first defendant in reply submissions served on 16 April 2025.

19 The covering email from the first defendant's solicitor highlighted that the reply submissions addressed 'the impact of section 58 of the Judiciary Act'. Among other things, the email asked whether the plaintiff consented to an email being sent to the Court to confirm the availability of the parties for a hearing on 30 May 2025.[13]

20 The same day, the plaintiff's solicitor replied by email indicating that instructions would be sought concerning the 'viability of the proposed 30 May 2025 date noting the significant and substantive new points of law raised'. The email reserved the 'right' to 'take up the First Defendant's invitation to make submissions in response'.[14]

21 Also on the same day, the plaintiff's solicitor forwarded the email from the first defendant's solicitor together with the reply submissions to senior and junior counsel then briefed on behalf of the plaintiff. Senior counsel seems to have responded suggesting that the solicitor 'seek the advice of a junior barrister specialising ... [in constitutional law]'. Senior counsel also said, in substance, that she would 'make enquiries and suggest an appropriate barrister'.[15]

22 On 24 April 2025, the plaintiff's solicitor emailed the solicitors for the other parties to confirm agreement with the proposed email being sent to the Court confirming the availability of the parties for a hearing on 30 May 2025.[16]

23 That said, another of the plaintiff's solicitors subsequently deposed that -

At this stage, ATB [the plaintiff's solicitors] had not received any advice on the s. 58 issue, was unfamiliar with it, and did not realise the effect it might have on the viability of a 30 May 2025 hearing date.[17]

24 In any event, the solicitors for the first defendant thereafter sent the agreed email to the Court.[18]

25 Appropriate junior counsel was identified on 9 May 2025 and briefed by the plaintiff's solicitor that same day.[19]

26 On Monday, 19 May 2025, the solicitor for the plaintiff emailed the solicitors for the other parties as follows -

We have briefed counsel to prepare submissions and will be in a position to file and serve same prior to the hearing listed for 30 May 2025.[20]

27 At that point, the plaintiff's solicitor had not yet received the advice of junior counsel, although 'preliminary advice' was received later the same day. In that connection, it is deposed that -

... after receiving that advice ATB formed the view that we needed to seek an adjournment of the current proceeding, if the s. 58 issue was pressed, on the basis that:

1. the First Defendant's s. 58 arguments were novel and require due consideration, research and the preparation of detailed submissions which the current timetable did not allow
2. the First Defendant's s.58 arguments may enliven the duty under section 78B of the Judiciary Act 1903 (Cth).[21]

28 Notwithstanding that position, it seems that the solicitors for the plaintiff did not send any relevant letter to the solicitors for the first defendant and other parties until Thursday, 22 May 2025 at 3.30pm. In that letter, in substance, the plaintiff's solicitor stated that 'constitutional issues' were raised, s 78B of the Judiciary Act was engaged and, accordingly, the hearing would need to be adjourned. The letter also proposed that the plaintiff file further written submissions in response to the first defendant's new point.[22]

29 The next day, Friday, 23 May 2025 at 3:18pm, the solicitors for the first defendant responded relevantly as follows -

1. You have asserted, without explanation, that s.78B of the Judiciary Act 1903 (Cth) (Judiciary Act) is engaged and that, as a consequence, notice of the hearing is required to be given to the Attorney-Generals of the Commonwealth and the States.
2. In order to enliven the requirement to deliver a notice pursuant to s.78B of the Judiciary Act, the matter must be one "arising under the Constitution" or "involving its interpretation". In our view, although the arguments put by our client in reliance on s.58 of the Judiciary Act refer to matters in which the High Court has original jurisdiction which indirectly incorporates s.75 of the Constitution, the issue raised by our client is not one arising under the Constitution or involving its interpretation. It is a question of the effect of s.58 of the Judiciary Act and the interpretation of that provision. On that basis, a s.78B notice is not required and there can be no basis to adjourn the hearing of the Summons.
3. If your client maintains that a notice pursuant to s.78B of the Judiciary Act is required to be given, please provide further explanation as to why it is asserted that is the case, noting that your client would be required to do so when giving the relevant notice. Please provide that explanation by no later than 4pm on Monday 26 May 2025 so that our client is able to properly consider your client's requested adjournment.[23]

30 It is unnecessary to recite all aspects of the correspondence that followed between the solicitors for the plaintiff and first defendant. It is sufficient to note that -

(a) on Monday, 26 May 2025 at 10:40am, the plaintiff's solicitor stated that the first defendant's new point was a complex one, the plaintiff intended to defend it for 'reasons which include constitutional reasons' and, accordingly, the solicitors were of the view that 's. 78B notices need to be issued';[24]

(b) that afternoon at 3:50pm, the first defendant's solicitors responded in terms and tone more likely to provoke confrontation than co-operation. Among other things, it was contended that a party may not 'simply assert' that there is a constitutional matter for the purposes of s 78B;[25]

(c) on Tuesday, 27 May 2025 at 8:44am, the plaintiff's solicitor replied in terms that were generally measured and included reference to the preliminary advice of counsel to the effect that s 78B notices would need to be prepared 'because the proceeding involves a constitutional point, being whether s 58 [of the Judiciary Act] can have the operation contended for by the first defendant, consistently with the right to proceed which is conferred by the Australian Constitution'. That said, the solicitor's letter included a suggestion that the first defendant could withdraw the argument entirely - which was plainly not going to happen;[26]

(d) that afternoon at 1:29pm, the first defendant's solicitor responded in terms that continued the tone to which I have earlier referred and included assertions that -

(i) the basis upon which a s 78B notice was required had not been 'articulated';

(ii) a s 78B notice was 'not required'; and

(iii) the plaintiff was required to articulate 'compelling reasons' why s 78B was engaged;[27]

(e) that evening at 6:42pm, the plaintiff's solicitor responded with a range of argumentative gambits, including that -

(i) the first defendant's new point had not been pleaded;

(ii) the first defendant had not explained its delay in raising the new point;

(iii) the plaintiff had been 'taken entirely by surprise';

(iv) in light of the unreasonable attitude displayed by the first defendant in correspondence, the plaintiff would 'oppose the late attempt by the First Defendant to introduce the Judiciary Act issue' or any application to amend its defence; and

(v) if the first defendant were permitted to amend its defence, the plaintiff would be 'forced to seek an adjournment';[28]

(f) in that context, the plaintiff's solicitor also explained further that -

We foreshadow that, if the First Defendant is ultimately permitted to raise the Judiciary Act issue, we intend to argue in response that:

• As a matter of statutory construction, s. 58 of the Judiciary Act does not have the effect contented for by the First Defendant; and
• Further and in the alternative, s. 58 of the Judiciary Act does not have the operation contended for by the First defendant, in light of the right to proceed which is conferred by the Australian Constitution. That is, because the Constitution itself confers federal jurisdiction on a Court (here, the Supreme Court of Victoria), s. 58 does not prevent a plaintiff from bringing a contract or tort claim against a state in any court with subject matter jurisdiction over the claim. We consider that this is 'a matter arising under the Constitution', thereby enlivening the duty under s 78B. The constitutional point is genuinely raised.[29]

(g) more broadly, on 27 and 28 May 2025, the solicitors for the plaintiff and first defendant each emailed the Court and other parties in respect of their respective positions;[30]

(h) on the afternoon of 28 May 2025, a solicitor for the first defendant filed and served a relevant affidavit;[31]

(i) on 28 and 29 May 2025, the solicitors continued to email each other and the other parties in pursuit of their various argumentative contentions.[32] In particular, on 29 May 2025, the plaintiff's solicitor contended that the orders sought in the first defendant's summons did not reflect the submissions made on its behalf;[33] and

(j) on the afternoon of 29 May 2025, a solicitor for the plaintiff filed and served a relevant affidavit.[34]

31 Immediately prior to the onset of the unproductive conflagration outlined above, on Monday, 26 May 2025 at 9:17am, the solicitor for the fourth defendant emailed the other parties relevantly as follows -

We note the issues arising between the First Defendant and the plaintiff in relation to the Judiciary Act.

Please note that if this matter is to be adjourned -

1. If the matter is adjourned today, our client will not be charged a one-day hearing fee by counsel and senior counsel;
2. If the matter is adjourned after today, counsel and senior counsel will charge for the day of the hearing next Friday;
3. Our client seeks the first defendant and/or the plaintiff agree to pay our client's costs thrown away, and in the alternative, any order as to adjournment include an order that the Fourth Defendant's costs thrown away as a result of the adjournment be served.[35]

32 A further and more specific email was sent by the solicitor for the fourth defendant that afternoon at 2:56pm.[36]

33 Neither the solicitors for the plaintiff nor the first defendant responded to either email.

(a) senior counsel for the plaintiff relevantly applied for an adjournment in order that the plaintiff might have further time to engage specialist senior counsel to prepare submissions in response to the jurisdictional issue;

(b) it was apparent that the jurisdictional issue was a complex one that appeared capable of raising a real question concerning the interpretation of provisions of the Australian Constitution and, on no view, did it appear reasonable to conclude that such a suggestion was frivolous, vexatious or raised as an abuse of process;[37]

(c) further, absent any considered written submissions of the plaintiff in respect of the jurisdictional issue, the application was not then in a state in which it might fairly and appropriately be argued and determined;

(d) in the circumstances, among other things, I accepted that the hearing of the application ought not proceed until after s 78B notices were served and, at the very least, the plaintiff had filed and served responsive written submissions.

1. The first defendant file and serve an amended summons directed to the relief sought by reference to s 58 of the Judiciary Act by Monday, 2 July 2025.
2. The plaintiff file and serve any notices pursuant to s 78B of the Judiciary Act by Friday, 13 June 2025.
3. The plaintiff file and serve any written submissions in relation to the first defendant's amended summons and contentions in respect of s 58 of the Judiciary Act by Monday, 7 July 2025.
4. Any intervening Attorneys-General file and serve written submissions in relation to the first defendant's amended summons and contentions in respect of s 58 of the Judiciary Act by Wednesday, 16 July 2025.
5. The first defendant file and serve any written submissions in reply by Monday, 21 July 2025.
6. The first defendant's summons is adjourned and re-listed for hearing before the Honourable Justice O'Meara at 10.30am on Monday, 28 July 2025 on an estimate of two days.
7. The parties are to file and serve any affidavit material directed to the issue of costs in respect of the adjournment, by Monday, 21 July 2025.
8. Costs reserved.[38]

36 As outlined in the Primary reasons, essential steps were subsequently taken prior to the application coming back on for hearing on 28 July 2025.[39]

37 As I have earlier noted, in respect of the costs of the adjournment on 30 May 2025 -

(a) the plaintiff essentially sought her costs with particular reference to the stance adopted by the first defendant in correspondence on and after 23 May 2025;

(b) the first defendant appeared to maintain its contention that each party should bear their own costs and otherwise sought to apportion blame to the plaintiff;

(c) the second and third defendants sought no specific order other than that their costs of the application should be in the proceeding; and

(d) the fourth defendant sought that the 'plaintiff/first defendant' pay its costs thrown away, particularly the costs of retaining senior and junior counsel to appear on that occasion together with the travel and associated costs of the solicitor.

(a) neither the second nor third defendant contributed to the situation to which I have referred;

(b) the plaintiff bears a palpable responsibility as -

(i) on 16 April 2025, her solicitors appear to have been informed and therefore must have appreciated that it was necessary to obtain advice from a barrister practising in 'constitutional law';[40]

(ii) no such barrister appears to have been briefed until 9 May 2025;

(iii) nonetheless, on 24 April 2025, the plaintiff's solicitors confirmed that the hearing could go ahead on 30 May 2025 and, on 19 May 2025, indicated that relevant written submissions would be filed prior to that hearing;

(iv) realistically, the plaintiff had time between 16 April and 30 May 2025 in order that any necessary steps might be taken, including the taking of advice, the service of s 78B notices and the preparation of relevant written submissions;

(v) however, significant time was allowed to pass until the plaintiff's solicitors emailed the other parties on 22 May 2025 advising, in effect, of a significant change in position shortly prior to the listed hearing date that then provoked the suspicions of the solicitors for the first defendant; and

(vi) in correspondence, the plaintiff's solicitors initially adopted a measured and reasonable approach only to later descend into a range of points that, realistically, could only inflame the situation and further distract the practitioners from the real issues presented;

(c) on the other hand, the first defendant must also bear a significant responsibility as its response was unduly rigid, suspicious, aggressive and unrealistic; in particular -

(i) the implicit insinuation that the solicitor for the plaintiff was doing no more than simply (and impermissibly) asserting that there was a 'constitutional matter';

(ii) the absolute contention that a s 78B notice was 'not required';

(iii) the associated assertion there could be 'no basis' for an adjournment;[41] and

(iv) the later assertion that it was necessary for the plaintiff to articulate 'compelling reasons' why the jurisdictional point involved a 'matter arising under the Constitution or involving its interpretation';[42]

(d) more broadly, neither the solicitors for the plaintiff nor the first defendant should have ignored the perfectly reasonable correspondence of the solicitor for the fourth defendant.

(a) there should be no order as to the costs of the plaintiff and first defendant of and relating to the hearing on 30 May 2025;

(b) the relevant costs of the second and third defendants should be dealt with generally in respect of the costs of the overall application; and

(c) the plaintiff and first defendant should each bear 50% of an overall liability for the fourth defendant's costs thrown away in respect of the hearing on 30 May 2025, specifically limited to -

(i) the brief fees for the appearances of senior and junior counsel on 30 May 2025; and

(ii) the travel costs for the attendance by the solicitor of the fourth defendant at the hearing on 30 May 2025 together with the costs of him instructing on that occasion.

40 That brings me to the costs of the application more broadly.

41 In that regard, subject to what I have already said about the costs of the hearing on 30 May 2025, the costs should follow the event and, accordingly, the plaintiff should have her standard costs of the application.

(a) the application ultimately involved the determination of the discrete issues of transfer and jurisdiction;

(b) the fourth defendant submitted that if the Court were to consider that it should share a portion of the costs of the application, that should relate only to the transfer issue which, it was submitted, should amount to no more than 50% of the overall costs of the amended summons;

(c) the first defendant acknowledged that the third defendant had not 'entered the fray';

(d) the solicitor for the second defendant sought to explain its actions and submitted that its position should be considered to be akin to that of the third defendant; and

(e) all parties acknowledged, either expressly or by silence, that it would be appropriate to stay any substantive costs orders until the final determination or resolution of the proceeding.

43 In the Primary reasons, I described the transfer issue as having been in issue between the plaintiff and all four defendants[43] and later noted that the legal representatives of the second and third defendants had adopted the relevant submissions of the first defendant.[44]

44 Having since heard and considered the submissions of senior counsel for the first defendant as well as the solicitors for the second and third defendants, I accept that -

(a) the preparation of the affidavit of the second defendant's solicitor is explicable;

(b) neither that step nor the indications of the solicitors for the second and third defendant in oral argument amounted to either party entering the fray in any material way in respect of either issue in the application.

45 In the circumstances, it seems appropriate for those parties who actively agitated each of the issues against the plaintiff to bear the costs of all relevant elements of that exercise.

(a) the liability for the plaintiff's costs of the determination of the jurisdictional issue (including the issue of submission to jurisdiction, or waiver) should be borne by the first defendant;

(b) the liability for the plaintiff's costs of the determination of the transfer issue should be borne by the first and fourth defendants and not by either the second or third defendants; and

(c) the second and third defendants' costs of the amended summons, including their costs in relation to the hearing on 30 May 2025, should be their costs in the proceeding.

47 From that point, I accept that there is utility in identifying appropriate apportionments of the various areas of liability for the plaintiff's costs of the amended summons (excluding, of course, the plaintiff's costs of and relating to the hearing on 30 May 2025 - in respect of which there will be no order).

(a) the liability for the plaintiff's costs of the determination of the jurisdictional issue is likely to amount to 40% of the plaintiff's relevant costs incurred in defence of the application (excluding the plaintiff's costs of and relating to the hearing on 30 May 2025);

(b) the liability for the plaintiff's costs of the determination of the transfer issue is likely to amount to 60% of the plaintiff's relevant costs of the defence of the application (similarly excluding the plaintiff's costs of and relating to the hearing on 30 May 2025);

(c) the first and fourth defendants contributed equally to the prosecution of the transfer issue;

(d) accordingly -

(i) the first defendant should bear 70% of the plaintiff's relevant costs incurred in defence of the application (that is, 40% relating to the jurisdictional issue and half of 60% relating to the transfer issue); and

(ii) the fourth defendant should bear 30% of the plaintiff's relevant costs incurred in defence of the application (that is, half of 60% relating to the transfer issue).

49 More broadly, I accept that it is appropriate to stay the effect of all substantive costs orders made in respect of the application until the final determination or resolution of the proceeding.

50 Orders giving effect to the above will accompany these reasons when both are emailed to the parties.

THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF ROCKHAMPTON (ABN 50 979 741 889)

[1] Statham (a pseudonym) v State of Queensland [2025] VSC 660 ('Primary reasons').

[3] Transcript (28 October 2025), 2-3 ('28 October transcript').

[11] [2022] VSCA 252, [12] (citations omitted). Cf Chen v Chan (No 2) [2009] VSCA 233, [10].

[12] Affidavit of Matthew Glen Edwards affirmed 28 May 2025 (Updated Court Book ('UCB') 54-288); affidavit of Sara Kaurin affirmed 29 May 2025 (UCB 952-1102); second affidavit of Matthew Glen Edwards affirmed 21 July 2025 (UCB 1132-1158); affidavit of Stephen Crofton Uniacke sworn 17 July 2025 (UCB 1159-1167); affidavit of Jodie Harris affirmed 23 July 2025 (UCB 1168-1335).

[23] UCB 1034 (emphasis in original). Cf UCB 1041.

[37] Cf Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292, 295-8 [9]-[15]; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216, 247-8 [76].

[39] Primary reasons (n 1) [22]-[25].

[41] As to sub-paragraphs (i)-(iii) see, in particular, UCB 1034, 1037-8, 1054-5.

[42] UCB 1054 [3]. In that connection, it seems to me to have been quite sufficient, in the circumstances, for the solicitors for the plaintiff to have earlier referred to the substance of the preliminary advice received from junior counsel: see UCB 1058.