Plaintiff v First defendant

2 The applicable principles are clear. The defendants each correctly point out that costs generally follow the event.[1] They correctly submit that the potential impecuniosity of the plaintiff, and his status as a prisoner, are not of themselves sufficient reasons to depart from the usual outcome.[2]

3 On 29 February 2024 I heard the substantive trial of this judicial review proceeding and reserved my decision. On 7 March 2024, I heard and dismissed a summons for contempt, filed in this proceeding by the plaintiff against the first defendant (contempt application). After I invited submissions on the first defendant's costs of that application, the first defendant sent correspondence on 14 March 2024 informing the Court that she was not applying for an order as to her costs of that application. On 15 March 2024 I delivered reasons for judgment in this proceeding, indicating that I will dismiss the proceeding, and inviting any submissions on costs. I did not make any orders on that day.

4 The first defendant now seeks an order for its costs of the proceeding, excluding the contempt application, in the following form:

Save for the costs of and incidental to the plaintiff's summons dated 24 September 2023 and filed and sealed on 24 October 2023 ..., the plaintiff shall pay the Commissioner's costs of the proceeding, including any reserved costs, on the standard basis and to be taxed in default of agreement.

5 The second defendant seeks an order that the plaintiff pay its costs of the proceeding, including any reserved costs, on a standard basis and to be taxed in default of agreement.

6 The plaintiff's response is nuanced. He does not necessarily agree with being ordered to pay any of the costs of the proceeding, and he seeks some costs himself.

7 His submissions divide the proceedings into four parts, designated 'CO1', 'CO2', 'CO3' and 'CO4'. The Court has a discretion to make different costs orders as to different parts of or issues in a proceeding. The four parts identified by the plaintiff are:

1. the proceeding excluding CO2, CO3, CO4. (CO1);

2. the plaintiff's summons filed 24 October 2023 (contempt application) excluding CO3 and CO4. (CO2);

3. the first defendant's (nunc pro tunc application) to vary order 13 of Judicial Registrar Keith's orders of 6 September 2023, withdrawn by the defendant at the hearing 7 March 2024. (CO3); and

4. the first defendant's (costs challenge application) to adduce further evidence made in the hearing 7 March 2024 withdrawn by letter dated 14 March 2024 in place of expected evidence and submissions. (CO4).

8 As to 'CO2', there is agreement between the protagonists of that application that there should be no order as to costs.

9 As to 'CO3', the plaintiff seeks a cost order pursuant to r 63.15 of the Supreme Court (General Civil Procedure Rules) 2015 because the first defendant withdrew this application.

10 Rule 63.15 creates a default outcome, '[u]nless the Court otherwise orders', that a party who discontinues or withdraws part of a proceeding, counterclaim, or claim by third party notice, is to pay the costs of the party to whom the discontinuance or withdrawal relates. It is not clear that an application of the kind made by first defendant is 'part of a proceeding' for the purposes of r 63.15. If it is, while it is true that the second defendant withdrew the application, there is more to the story than that.

11 The application was initially made informally on 6 December 2023 by an item draft minutes of orders provided to me by the first defendant in the context of the plaintiff's contempt application against the first defendant. The contempt application concerned the first defendant's compliance with an order previously made by Judicial Registrar Keith. The item in the minutes of orders sought retrospective extension of the time for compliance with Judicial Registrar Keith's order.

12 I adjourned the hearing of the application described in 'CO3' to 29 February 2024, when the contempt application was listed to be heard, and it was subsequently further adjourned to 7 March 2024. On that day, counsel for first defendant introduced the application with the following words:

If, contrary to the Commissioner's submissions, the court considers that the Commissioner did fail to comply with that order by not providing the materials earlier than 6 October 2023, the Commissioner has made an application for an order extending time nunc pro tunc.[3]

13 Later in that hearing, I ruled against the contempt application and said that I was proposing not to decide the application for retrospective extension of the order made by Judicial Registrar Keith as it seemed unnecessary to do so. It was only after I gave this ruling that counsel for the first defendant withdrew the application.

14 Considered in this context, there is no sound basis for the plaintiff's application for costs of this withdrawn application. If r 63.15 is engaged, I am satisfied that I should otherwise order. The application was only withdrawn after I suggested that it was unnecessary to determine it because of the first defendant's successful opposition to the plaintiff's contempt application. Further, and in any event, any exertion or resources separately attributable to it would have been negligible compared with the exertion and resources associated with the plaintiff's unmeritorious contempt application. I disallow the plaintiff's application for these costs.

15 As to 'CO4', again, there is nothing in the plaintiff's application for these costs. After I dismissed the plaintiff's contempt application on 7 March 2024, I invited submissions on costs, and counsel for the first defendant sought a direction for a time by which she could apply for a costs order, to be determined on the basis of materials filed by a certain date. I responded that I wished to deal with costs forthwith, but counsel explained that additional material would be required. I relented and directed a timetable: the first defendant to put on its material and submissions by 14 March 2024, and the plaintiff to do the same by 21 March 2024. In my view, it was entirely appropriate for the first defendant to reconsider her position before deciding whether to press any application for costs and she is not to be visited with a costs order for having decided not to press her application for costs.

16 As to the remainder of the costs of the proceeding, designated 'CO1' by the plaintiff, the plaintiff submits that I should only order costs against him if I am satisfied that, had he been successful, I would have ordered costs in his favour. He represented himself during the proceeding and therefore had no legal costs for labour and time spent. A successful self‑represented litigant will generally be entitled to an order for their costs, but limited to out-of-pocket expenses. If they had no legal representation, those expenses will be limited to disbursements. They cannot be compensated for their time and labour.

17 The plaintiff relied on recommendation 13.5 of the Productivity Commission's report no 72 (5 September 2014) Access to Justice Arrangements, part of which states:

In addition to out-of-pocket expenses such as disbursements, successful self‑represented litigants (including those who have purchased 'unbundled' legal services) should be able to recover legal costs from the opposing party in courts where costs are awarded ...

18 As far as I can tell, this suggestion has not made its way into any legislation or court rules in Victoria. The plaintiff did not point to any such development or law reform.

19 The plaintiff referred to ss 8 and 9(1)(a) and (2)(h) of the Civil Procedure Act 2010. It was not explained how these provisions of the Civil Procedure Act provide any authority for adopting a precondition of the kind urged by the plaintiff before the Court will grant a successful represented litigant and order for their costs in a proceeding brought by a self-represented litigant. It is not obvious to me how they might be thought to do so.

20 The plaintiff also referred to Cachia v Hanes.[4] In that case, Kirby P (dissenting) would have read the applicable rules of the New South Wales Supreme Court as being broad enough to permit the making of an order compensating a successful self-represented litigant for some of their time and labour spent on the case. However, the majority in Cachia v Hanes (Clarke and Handley JJA) held that they were bound by earlier Court of Appeal authority to the opposite effect. Further, and in any event, even the dissenting reasons of Kirby P did not propose the imposition of a precondition of the kind urged by Mr McKechnie here before ordering that an unsuccessful self‑represented litigant be ordered to pay a winning defendant's costs.

21 I do not accept the conditional approach urged by Mr McKechnie. I am satisfied that the defendants should each have the benefit of a costs order against Mr McKechnie without me having to reach or express satisfaction that he would have been entitled to a costs order of reciprocal scope had he been successful.

22 I will make orders in the forms sought by the defendants.

[1] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, [67] (McHugh J); Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

[2] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, [26]; Knight v Hastings (No 2) [2012] VSC 423, [14]-[15]; Knight v Secretary to the Department of Justice [2004] VSC 29, [17]-[19] (Kellam J); Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 290 (Gillard J).

[3] Nunc pro tunc means retrospectively.

[4] (1991) 23 NSWLR 304.