Plaintiffs Oppose Magistrate's Award of Costs
Di Lorenzo v The Magistrates' Court of Victoria [2021] VSC 475 (9 August 2021)
The plaintiffs initiated proceedings with the Magistrate's Court for personal safety intervention orders. The Magistrate Court made an order for costs in Mr Lazarides' favor in the amount of $5,000. The council members then sought orders for the costs orders to be quashed and for the learned magistrate to be prohibited from continuing to hear the proceedings. The Court, in deciding whether or not costs thrown away are costs in the proceedings, referred to the case of Cachia v Hines (1994) 179 CLR 403.
Facts:
The plaintiffs are all associated with the Moreland City Council. Mr James Weston, a lawyer who then worked for the firm on record for the plaintiffs in this proceeding, MNG Lawyers Pty Ltd, commenced a separate proceeding in the Magistrates’ Court at Broadmeadows under the Personal Safety Intervention Orders Act 2010 (‘the Act’) on behalf of each plaintiff for a personal safety intervention order against Mr Lazarides, the second defendant. Mr Lazarides then commenced proceedings under the same act against Mr Weston and Ms Valvo. On 16 March 2020, counsel who had been retained by the council parties, did not attend the Court since he might have the coronavirus.
MNG Lawyers emailed and called the Court and advised it that the council parties would be applying for an adjournment. Mr Lazarides said that he would not consent to this adjournment. Ms Ribeiro appeared for the council members, and also for Ms Valvo. Mr Lazarides appeared for himself, as he had throughout. The Magistrate Court granted the adjournment and made an order for costs in Mr Lazarides' favor in the amount of $5,000. The council members then sought orders for the the costs orders made ‘against the Plaintiffs’ on 19 March 2020 to be quashed and for the learned magistrate to be prohibited from continuing to hear both the council members’ proceedings against Mr Lazarides and from hearing Mr Lazarides’ proceedings against Mr Weston and Ms Valvo.
Issues:
I. Whether or not Magistrate erred when awarding costs in favour of self-represented litigant.
II. Whether or not costs thrown away are costs in the proceeding.
III. Whether or not exceptional circumstances were provided.
IV. Whether or not to remit matters to Magistrates’ Court.
Applicable law:
Personal Safety Intervention Orders Act 2010 (‘the Act’) s 15 - allows a proceeding to be brought, if the affected person is an adult, by any other person with the written consent of that person.
Personal Safety Intervention Orders Act 2010 (‘the Act’) s 111 - provides that each party to a proceeding for a personal safety intervention order under this Act must bear the party's own costs of the proceeding.
Cachia v Hines(1994) 179 CLR 403 - the Court held that the ‘costs’ provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case.
Analysis:
Her Honour fixed the amount of the costs payable at $5,000 on the basis that that was a reasonable sum ‘to cover the expenses’ of Mr Lazarides in the preparation, time and effort that he had spent in preparing for the hearing. Her Honour assessed costs by reference to the time and effort that Mr Lazarides had put in to prepare for his case, rather than limiting her consideration to what expenses he, as a self-represented litigant, had incurred, her Honour’s discretion miscarried.
A Court hearing a proceeding for a personal safety intervention order may only order that a party pay costs thrown away by reason of an adjournment if the Court decides that there are exceptional circumstances that warrant making such an order. When s 111 is read as a whole, it is apparent that it is intended to apply to all costs associated with a proceeding, including costs thrown away by reason of an adjournment. However, the plaintiffs submitted that her Honour never raised in her discussion s 111's requirement of exceptional circumstances.
Conclusion:
The Court concluded that her Honour either misapplied the law in reaching her assessment of costs at $5,000, or made a finding that no reasonable Magistrate could have made on the evidence. The Court held that costs thrown away are costs in the proceeding. Her Honour's discretion is miscarried and the costs order ought to be quashed because of the absence of exceptional circumstances in her discussions which shows that she did not have regard to the same in making her order. No order is made remitting the costs application for redetermination.
