DCT v Palmer (No 4) [2023] VCC 598 (21 April 2023)

Last Updated: 24 April 2023

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION COMPLEX CASES LIST (FORMER EXPEDITED CASES LIST MATTER)

Revised Not Restricted Suitable for Publication

Case No. CI-18-02619

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
v
MICHAEL GARETH PALMER	Defendant

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2023
DATE OF RULING:	21 April 2023
CASE MAY BE CITED AS:	Deputy Commissioner of Taxation v Palmer (No 4)
MEDIUM NEUTRAL CITATION:	[2023] VCC 598

REASONS FOR RULING
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Subject: COSTS

Catchwords: Costs follow the event – no reason for departure from ordinary rule – fixed costs
Legislation Cited:
Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Wilson	Australian Government Solicitor
For the Defendant	Self-represented

HIS HONOUR:

1. I delivered my reasons for ruling on 24 March 2023 finding that the defendant’s summons filed 16 February 2023 should be dismissed (“the principal reasons”). This ruling assumes familiarity with the principal reasons and uses the same terminology. I directed that the parties file submissions as to costs in the event that they were not able to agree upon orders giving effect to my reasons.
2. The plaintiff submitted that costs should follow the event in the usual way. The plaintiff contended that it had been wholly successfully in the application and there was no basis on the evidence to depart from the usual order whereby the successful party recovers its costs of the application. In order to avoid further costs and delay associated with a taxation, the plaintiff asked for the court to fix costs in the sum of $5,000.
3. Palmer’s contentions were lengthier and more detailed. Part of his submissions alleged deficiencies in the ruling and criticisms of the lack of assistance given to him. This included the question of the defects in his affidavits and the court’s unwillingness to deal with certain aspects of the PayPal matters where the documents were produced to the court after the conclusion of the hearing. For the sake of completeness, I note that in additional documents forwarded to the court with his submissions on costs, Palmer pointed out that PayPal acknowledged that it responded inappropriately to the garnishee notice served upon it and that the plaintiff had now returned to PayPal funds which ought not to have been remitted under the garnishee notice. In response, I observe that:

   (a) the court could not make the orders sought in Palmer’s submissions regarding PayPal when (apart from the problem with jurisdiction) PayPal was not a party to the proceeding or the application; and

   (b) it was not the fault of the plaintiff that PayPal responded inappropriately to the garnishee notice by remitting monies which were not within the scope of the notice.

4. Palmer contended that, given that the plaintiff had not previously sought or received a costs order in its favour, the presumption was that costs were not to be awarded. Palmer argued that because PayPal, in the most recently produced correspondence (after and not at the hearing), admitted it sent funds to the plaintiff which it should not have sent, the applicant was vindicated and the plaintiff should receive nothing. Palmer also raised a point about costs being payable only to a consolidated revenue fund and no other account. He also said that no costs should be awarded until the court could establish compliance with “Division 2 Habeas Corpus section 8 of the Imperial Acts Application Act 1980”.
5. In my opinion, Palmer should pay the plaintiff’s costs of the application for several reasons.
6. First, the plaintiff successfully opposed the stay application.
7. Secondly, Palmer did not obtain the order sought in relation to PayPal. Apart from the jurisdictional problem, whereby the Federal Court of Australia and not this court had jurisdiction to deal with the issue, PayPal was not party to the proceeding or the application.
8. Thirdly, there was no factor or circumstance which justified the departure from the usual rule that the successful party should recover its costs of the application.
9. Fourthly, even if the court granted the stay sought by Palmer, it is likely that Palmer would have been responsible for the plaintiff’s costs in any event as he would have been seeking and obtaining an indulgence which prevented the plaintiff from enforcing the judgment which it had won.
10. Given the time and expense likely to be involved in a taxation of costs (and, in particular, the misguided and legally unjustified points likely to be raised by Palmer), I consider it appropriate to fix the costs. Due to the nature of the application and the fact that the costs sought by the plaintiff represent the combined costs of solicitor and counsel, the figure of $5,000 is reasonable and well within the range set out in the court’s scale of costs. From my experience in the court, I am aware of costs orders on similar duty court applications being significantly higher.

Conclusion

11. For the reasons set out here and in my ruling delivered on 24 March 2023, I order that:

    (a) the defendant’s summons filed 16 February 2023 be dismissed.

    (b) the defendant pay the plaintiff’s costs of and incidental to the application such costs to be fixed in the sum of $5,000.