Varasdi as Litigation Representative for Mimi Varasdi v State of Victoria

1. The costs of the Respondents' interlocutory application be the Respondents' costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 This is an application for costs, following my determination of a consolidation application filed by the Respondents in this matter on 6 September 2019. On 31 October 2019 I gave reasons (Varasdi as Litigation Representative for Mimi Varasdi v State of Victoria (Department of Education and Training [2019] FCA 1785) for ordering on 25 October 2019 that this proceeding be removed to the docket of Justice O'Callaghan and that subject to any contrary or further order that his Honour Justice O'Callaghan might make, pursuant to r 30.11(d) of the Federal Court Rules 2011 (Cth) proceeding VID 518/2019 be heard together with proceeding VID 367/2017, and that evidence in one proceeding be evidence in both. These reasons assume familiarity with the reasons that I gave on 31 October 2019. 2 On 25 October 2019 I also ordered that the Respondents were to have leave to file submissions in support of an order for costs no later than 14 days from the date of delivery of the Court's reasons, limited to no more than 2 pages. The Applicants would have leave to file any responsive submissions on which they wished to rely no later than 7 days after the filing and service of any such submissions. I ordered that unless an application was made within the time foreshadowed, there would be no order as to costs. 3 Both parties filed written submissions as permitted by those orders. 4 The gravamen of the Respondents' submissions is that they were substantially successful, albeit on the alternative of the two propositions they advanced in their application. They accept that they did not succeed in persuading the Court that the proceedings should be consolidated. However, they contend that the orders that the Court did make were consistent with their having successfully vindicated a position they had advanced with notice to the Applicants and which the Applicants had resisted. 5 For their part the Applicants seek to maintain the default position that there be no order as to costs. They submit that it was their right to engage different solicitors for the two proceedings and that the Court should not impose cost consequences upon them having regard to that entitlement. 6 In my view there is some merit in each of those contentions. 7 I accept that the Respondents did have complete success on the alternative basis for which they contended. However, I am also satisfied that that was not the principal fighting ground of their application as it was advanced. The Respondents' principal contention was that the two proceedings be consolidated. In that regard the alternative which the Court ultimately adopted was pressed only as a fall-back, in the event that the application for consolidation was not accepted. 8 I also accept that the Court did not dispute the Applicants' entitlement to engage different solicitors. However, I also made clear during the hearing that any additional costs incurred thereby were not to be imposed on the Respondents. 9 In my view the appropriate disposition of the question of costs, having regard to those relatively balanced considerations, is to order that the costs of the Respondents' interlocutory application be the Respondents' costs in the cause. That accepts that the Respondents are not to be burdened with having to meet the Applicants' costs of opposing their interlocutory application, whatever might be the ultimate outcome of these proceedings. It also ensures that the Respondents will be entitled to the costs of their obtaining the orders that this proceeding be heard and determined together with VID 367/2017, if they are ultimately successful. I will make orders accordingly. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.