Plaintiff v First Defendant

3 The first defendant did not join the second defendant's application. In relation to the ASOC, it adopted the position that the plaintiff should respond to the complaints it articulated about the pleading by seeking leave to amend to cure the identified deficiencies. In the reasons for dismissing the second defendant's application, I concluded the course proposed by the first defendant was appropriate and made orders requiring both defendants to provide the plaintiff with a comprehensive list of their complaints about the ASOC, for the plaintiff to respond, and for the parties to confer in order to resolve pleading issues.

4 The orders I made to resolve disputes about the plaintiff's pleading have been complied with. The plaintiff now seeks leave to file a further amended statement of claim ('FASOC'). The defendants do not object to leave being granted. I will order that the plaintiff has leave to file and serve the FASOC in the form provided.

5 The plaintiff consents to an order that he pay the defendants' costs thrown away of and associated with the filing and service of the FASOC.

6 The plaintiff and the second defendant are in dispute about the costs of the second defendant's summons dated 30 October 2024 ('summons'). The plaintiff submitted that costs should follow the event and that those costs should be payable forthwith. The second defendant submitted that the parties' costs of the summons should be in the cause or, in the alternative, be reserved.

7 Where a party has clearly succeeded on an interlocutory application the discretion in relation to costs 'will ordinarily be exercised in accordance with the guiding principle that costs follow the event'.[2] Rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) reflects the fact that on some interlocutory applications, a court will not be in a position, until the conclusion of the proceeding, to determine where justice lies between the parties in respect of costs.[3]

8 The second defendant submitted, first, that it had some success because I concluded in ruling on the summons that there were deficiencies in the ASOC and made orders giving the plaintiff a further opportunity to address those deficiencies, and second, that the second defendant's complaints about the ASOC made as part of the declassing application raised matters going to the merits of the plaintiff's claim that will need to be determined at the initial trial. The second defendant submitted that the Court could only assess where justice lies in relation to the costs of the summons after those matters had been determined. The second defendant submitted that the possibility that a further application under s 33N of the Act, made after discovery by the plaintiff of group members may be successful, is a further reason to defer the determination of costs.

9 I reject the submissions of the second defendant. At least some of the complaints made by the defendants about the adequacy of the plaintiff's pleading were justified. However, the plaintiff has responded to those complaints appropriately by seeking leave to amend the pleading and by agreeing to pay the defendants' costs thrown away as a result.

10 The summons was not an attempt to agitate complaints about individual paragraphs of the ASOC that should be cured by repleading. The second defendant argued on the summons that the ASOC did not give rise to any common questions of law or fact and that the whole of the pleading should be struck out because the claims made were nebulous, ran counter to the terms of the retainer documents between group members and the defendants, and raised no maintainable claim. The second defendant was wholly unsuccessful on the summons.

11 There is no uncertainty about where justice lies in relation to the costs of summons. When the declassing application was made and argued there was no justification for an order under s 33N of the Act. The ASOC identified the fundamental substance and structure of the claims made by the plaintiff. The evidence on the summons did not substantiate the second defendant's submissions that the pleaded claims were untenable or embarrassing in their entirety such that the ASOC should be struck out.

12 There may well be arguments about the plaintiff's pleading in the course of the initial trial. It is not inconceivable that after discovery the second defendant could justifiably make a further application under s 33N of the Act. However, the costs relevant to those matters will be dealt with if and when they arise. The possibility of further disputation that is in some way related to the subject matter of the summons does not justify deferring the assessment of costs.

13 I will order that the second defendant pay the plaintiff's costs of, and associated with the summons.

14 The default position is that costs awarded on an interlocutory application or hearing will not be taxed until the proceeding is completed.[4] The plaintiff submitted an order for immediate taxation was appropriate because of the prospect of considerable delay before the initial trial in circumstances where the subject matter of the summons was discrete from the matters to be determined at that trial.[5]

15 I reject the plaintiff's submissions. The plaintiff has only now applied for leave to file the FASOC. Any delay is as much a result of the plaintiff's need to amend his pleading as the defendants' summons. The hearing of the summons had the benefit of providing an opportunity to discuss aspects of the ASOC that needed to be repleaded. As a result, orders were made for that repleading to occur. While the subject matter of the summons is sufficiently discrete to allow costs to be assessed at this stage, it is not wholly unrelated to matters that will be in dispute and require determination at the initial trial. There was no conduct by the second defendant that would justify an order for immediate taxation. Finally, I note there will be no order for immediate taxation of costs thrown away as a result of filing and service of the FASOC that will be payable by the plaintiff.

16 Orders for costs will be made consistent with these reasons.

[1] Holmes v Knowmore Legal Service Limited [2025] VSC 561.

[2] Allen v G8 Education Ltd (No 3) [2022] VSC 302, 5 [5(c)] (Nichols J).

[4] Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.20.1.

[5] Setka v Abbott (No 2) [2013] VSCA 376, 7 [27] (Warren CJ, Ashley and Whelan JJA).