Swindells v Victoria

2 The respondents sought their costs of the proceeding on a standard basis in accordance with the usual rule.[2]

3 In response, the applicant's principal submission was that each party should bear its own costs of the proceeding.

4 In support of this submission, he argued that an adverse costs order would have an exacerbated effect on him in circumstances where his removal from the office of mining warden has already had a profound effect on his mental state, his family and his career prospects. He said that he had lost his reputation, and had applied unsuccessfully for over 2000 positions since his removal. His physical and mental health had suffered and he had commenced taking prescription medication. He found it difficult to provide financial and emotional support to his family, and his marriage had broken down. He contended that an adverse costs order would magnify these effects and unfairly impact his young children and his estranged wife. He said that he had no assets and no capacity to meet any costs order that might be made against him.

5 The applicant further contended that the respondents ought to have settled the litigation, both as a matter of business practice and because it was in his submission 'the usual course of action' in an employment termination case. In particular, he contended that the respondents ought to have accepted an offer he claims to have made when the Minister first raised concerns about his conduct as mining warden, whereby he offered to resign in return for a payment equivalent to the value of the remainder of his contract. No evidence of such an offer was put before the Court. The applicant submitted that the offer was unreasonably refused by the respondents. He pointed to other statutory office holders who had received termination payouts to support his argument that he should have received one too. In his submission, in the absence of any adverse external findings regarding his conduct, the mere loss of the Minister's confidence in him could not provide a reasonable basis for refusing him a termination payout. He said such a payout would have come at a lower cost than the respondents' decision to defend the litigation he had brought against them. He criticised the respondents' decision to retain a private law firm and counsel rather than in-house legal practitioners.

6 The applicant further submitted that no costs order should be made in favour of the respondents in circumstances where they had never made an acceptable offer to him to settle the proceeding. He accused the respondents of 'effectively invit[ing]' the litigation by leaving him with 'no ... realistic option' but to contest his removal and seek compensation.

7 In addition, the applicant asserted that the public interest was relevant to the Court's exercise of its discretion as to costs. He submitted that the public interest was not served by forcing him to continue to rely on welfare when he could be a contributing member of the community. Moreover, no public good could derive from permitting the respondents to fruitlessly pursue him for their costs.

8 Finally, the applicant sought that any costs order made by the Court be stayed pending the outcome of an application for special leave to appeal to the High Court. He subsequently filed such an application.

9 Rule 64.38(1) of the Supreme Court (General Civil Procedure) Rules 2015 provides that the Court may make any order for the whole or any part of the costs of an application or appeal as it thinks fit. The Court has a wide discretion to award costs, even though a successful litigant will usually receive his or her costs,[3] even if not successful on all heads of claim.[4] 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 on matters of costs.[5]

10 In its substantive reasons, the Court dismissed the application for leave to appeal on the basis that it had no real prospect of success.[6] The question then arises as to whether there are any special circumstances relevant to the Court's discretion as to costs.

11 It may be accepted that the applicant has suffered unhappiness and stress as a result of the revocation of his appointment as mining warden and the litigation that has ensued. As the Court's substantive reasons show, his tenure of the office of mining warden was itself a difficult time.[7]

12 It may also be accepted that the applicant's capacity to meet a costs order may be lesser than that of a person in employment or of greater financial means.

13 The difficulty with the applicant's submissions is that he seeks to attribute his misfortunes, at least in part, to the way in which the respondents conducted the litigation. In this respect, his submissions chiefly take issue with their decision to defend the trial rather than propose a settlement, although we take him also to have submitted that the respondents ought to have made a settlement offer once he had filed his application for leave to appeal.

14 We do not consider that the respondents can be criticised for failing to make a settlement offer acceptable to the applicant either at trial or upon the bringing of his application for leave to appeal. There is no basis for inferring any entitlement on the part of the applicant to a termination payout upon his removal from the office of mining warden. On the contrary, the respondents were entitled to defend the proceedings brought against them. We could not be satisfied that their decision to retain a private law firm for this purpose was unreasonable. In the event, the respondents' stance was vindicated on both occasions; to date, the applicant's attempt to seek compensation for his removal from office has been wholly unsuccessful. Relevantly for present purposes, it is appropriate that the applicant bear some measure of the costs incurred by the respondents in meeting his application for leave to appeal.

15 On the material before us, we are not satisfied that the respondents bear responsibility for the applicant's present health, family and employment difficulties; certainly, not to any degree that ought to be reflected in orders as to costs. Nor can it be said that awarding costs against the applicant would be futile, or would make him dependent upon welfare or prevent him from contributing to the community. He may yet find employment and move forward from the difficulties he presently faces. In any event, these matters are not relevant to the exercise of the discretion in this case. In a sense, the applicant's submissions seek relief of a compensatory nature for what has happened to him. Given that he initiated the trial and leave to appeal application and has been wholly unsuccessful, the respondents should have their costs.

16 In all of the circumstances, we consider the appropriate order is that the applicant pay the respondents' costs of and incidental to the appeal, to be taxed on the standard basis.

17 In so far as the applicant sought that any costs order be stayed pending the determination of his application for special leave to appeal, for the reasons set out above, we are not satisfied that special circumstances have been established which would warrant a stay in the circumstances of this case. Nor does it appear to us that there is a substantial prospect that the applicant's special leave application will be successful, for the reasons set out in the Court's substantive judgment.

[1] Swindells v Victoria [2016] VSCA 9.

[2] As the applicant was unable to be present upon the delivery of judgment, the Court made orders providing him with seven days in which to file written submissions in response to the respondents' costs application. The applicant filed written submissions later that day.

[3] Donald Campbell & Co Ltd v Pollak [1927] AC 732, 809, 811 (Viscount Cave LC).

[4] Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72, 97-8 (McHugh J), 124 (Kirby J).

[5] Chan v Chen [2009] VSCA 233, [10] (J Forrest AJA, with whom Maxwell P and Redlich JA agreed).

[6] Swindells v Victoria [2016] VSCA 9, [6].