Weston (a pseudonym) v Price (Ruling as to Costs) [2024] VCC 142 (29 February 2024)

Last Updated: 23 December 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION	Revised Not Restricted Suitable for Publication
APPEALS AND POST SENTENCE APPLICATIONS LIST

IN THE MATTER of an application under s85B of the Sentencing Act 1991

HEIDI WESTON (a pseudonym)	Applicant
v
MATTHEW THOMAS PRICE	Respondent

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JUDGE:	HER HONOUR JUDICIAL REGISTRAR BALES
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2023
DATE OF JUDGMENT:	29 February 2024
CASE MAY BE CITED AS:	Weston (a pseudonym) v Price (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2024] VCC 142

RULING AS TO COSTS
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Subject: COSTS

Catchwords: Determination of costs in the proceeding – Sentencing Act 1991, s85K

Legislation Cited: Sentencing Act 1991; Supreme Court (Chapter 1 Appendices A and B Amendment) Rules 2021

Cases Cited: DPP v Price [2021] VCC 1307; Kaplan v Lee-Archer [2007] VSCA 42; [2007] 15 VR 405; RK v Mirik and Mirik [2009] VSC 14; [2009] 21 VR 623; AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233; V1 v Xydias [2009] VSC 616; Crespo v Kelson [2021] VSC 264; Paulino v Paulino [2020] VSC 642; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Johnson v Johnson [2000] HCA 48; (2002) 201 CLR 488; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Ruling: Costs awarded to the applicant in the sum of $15,627.38.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Brennan	Brennan Law Partners Pty Ltd
For the Respondent	The respondent was self-represented	-

HER HONOUR:

The application

1. This is an application for costs pursuant to s85K of the Sentencing Act 1991 subsequent to a ruling delivered by her Honour Judge Manova on 11 August 2023 in respect to a compensation application pursuant to s85B of the Sentencing Act 1991.
2. The applicant seeks costs of all of the interlocutory hearings incorporating the case management and pre-trial procedures engaged in by the parties to bring the substantive hearing before this Court.
3. This application was listed before me on 1 September 2023; however, the respondent sought an adjournment of the proceedings, and the application was heard on 27 October 2023.
4. Timetabling orders were made, requiring the parties to file submissions to confirm their position in respect to the application.
5. I note the respondent did not file any materials and/or submissions.
6. I have reviewed the following:

(i) submissions in support of an application for costs dated 28 August 2023 filed by the applicant;

(ii) all historical interlocutory hearings from 19 November 2021 and Orders made by this Court relating to the preliminary case management hearings.

7. At the commencement of the costs application hearing on 27 October 2023, the respondent advised the Court and the applicant that he formally opposed the application for costs.
8. At the conclusion of the costs application on 27 October 2023, the respondent made an application for me to recuse myself.
9. This application was opposed by the applicant.

Background

10. The applicant commenced proceedings pursuant to s85B of the Sentencing Act 1991 on 19 October 2021. This application was made following sentencing of the respondent in the associated criminal proceedings on 8 September 2021 in respect to six sexual assault charges against the respondent. The respondent was sentenced to four years’ imprisonment with a non-parole period of two years and six months.^[1]
11. The compensation application was filed in time, pursuant to s85C(1)(a) of the Sentencing Act 1991 and sought compensation for, inter alia, Post-Traumatic Stress Disorder and generalised anxiety.
12. The s85B compensation application was ultimately opposed by the respondent.
13. The respondent was not legally represented; however, indicated to the Court on several occasions that he had sought legal guidance and advice from solicitors, however, he was content to represent himself.
14. I note the Court had made and extended several referrals to the Victorian Bar Pro Bono Referral Scheme to obtain counsel for the respondent in these proceedings, which remained active up until this costs application and, particularly, at the hearing on 2 August 2023, of the application before her Honour Judge Manova.
15. The original compensation application proceedings were listed before me and other judicial officers for various interlocutory procedures and hearings over a total period of twenty months. There have been a total of seventeen hearings listed in respect to this proceeding and so it is important, in my view, that I set out the chronology and sequence of those hearings.
16. It is important also to note that the costs application before me, only relates to all preliminary case management and interlocutory pre-trial procedure hearings and does not include the final hearing dates.

Total number of hearings: 17

Directions Hearings: 8

Administrative mentions: 1

Listed Judicial Mediations: 4

Listed final hearing days: 4.

Hearing Number	Date	Hearing type	Application and Outcome
1	19 November 2021	Directions hearing (before her Honour Judge Hinchey)	Respondent stated he was unaware of this application and sought an adjournment to obtain legal advice and to obtain a copy of the application.
2	17 December 2021	Directions hearing	Respondent sought further time and an adjournment to obtain legal advice; however, the matter was listed for hearing on 17 May 2022 allowing time for the respondent to obtain legal advice. Respondent also explained he had lost the paperwork due to a Corrections prisoner movement. Court directs time to be provided for respondent to re review the application materials.
3	8 April 2022	Directions hearing	Respondent sought further time and an adjournment to obtain legal advice with the assistance of his case worker who can make enquiries on his behalf. Hearing date of 17 May 2022 vacated.
4	6 May 2022	Directions hearing	Respondent confirms he has obtained private legal assistance; however, will represent himself. Parties requested a judicial mediation. Relisted for hearing on 20 September 2022 and judicial mediation on 25 August 2022.
5	25 August 2022	Judicial mediation	The respondent failed to comply with Court Orders and requested an extension of time to file materials and advised the Court he has received further legal advice. Judicial mediation could not proceed. Hearing date of 20 September 2022 vacated. Parties sought a further directions hearing and judicial mediation.
6	25 November 2022	Directions hearing	The respondent filed materials. Parties sought a judicial mediation. Parties sought time to make enquiries regarding associated Restraining Orders. Respondent advised he had obtained legal advice. Respondent made a request for time to obtain additional legal advice. Parties agree matters may resolve. Respondent consents to applicant following up with his lawyer. Respondent requested videolink due to custody issues. Judicial mediation relisted for 17 March 2023.
7	17 March 2023	Judicial mediation	Respondent was not ready to proceed with judicial mediation and sought an adjournment of judicial mediation to get further legal advice. Court made referral to Vic Bar Pro Bono Referral Scheme.
8	20 April 2023	Judicial mediation/ Administrative mention	Vic Bar Pro Bono Referral Scheme referral extended and judicial mediation vacated and relisted for 16 May 2023.
9	16 May 2023	Judicial mediation	Respondent filed material outside of Court Orders and advised Court his position has changed. Vic Bar Pro Bono Referral Scheme referral extended and judicial mediation vacated -deemed unsuitable. Proceedings relisted for hearing on 2 August 2023 with final directions hearing listed on 12 July 2023.
10	12 July 2023	Final Directions hearing	Respondent fails to comply with orders. Respondent made application at directions hearing to issue subpoenas; however, was unable to state details of persons he was seeking to subpoena. Vic Bar Pro Bono Referral Scheme referral extended. Respondent advised the Court all witnesses will be required for cross-examination. Applicant sought time to confirm if proceeding on 2 August 2023 will proceed. Adjourned for further directions hearing.
11	20 July 2023	Second Final Directions hearing	Hearing date of 2 August 2023 confirmed.
12	2 August 2023	Hearing date	Hearing adjourned part heard.
13	7 August 2023	Hearing date	Hearing adjourned part heard.
14	10 August 2023	Hearing date	Hearing adjourned part heard.
15	11 August 2023	Hearing date	Ruling delivered. Adjourned for costs application and remitted to Judicial Registrar Bales on 1 September 2023.
16	31 August 2023	Administrative mention	Respondent wrote to the Court seeking an adjournment. Timetabling Orders made requiring parties to file materials regarding costs application.
17	27 October 2023	Costs application	Respondent failed to file materials. Costs application proceeded and adjourned for ruling.

Submissions

Costs application

17. The compensation application was heard and determined by her Honour Judge Manova on 2, 7, 10 and 11 August 2023 and remitted to me for hearing on 31 August 2023 in respect to the costs applications previously made during the pre-trial case management phase of the proceeding.
18. I made Orders on 31 August 2023 granting the respondent an adjournment and made Orders for the parties to file any materials and submissions or authorities they sought to rely on in respect to the costs application.
19. The applicant filed an outline of submissions dated 28 August 2023, along with a table of costs calculations pursuant to the Supreme Court (Chapter 1 Appendices A and B Amendment) Rules 2021.
20. The respondent did not file any materials or submissions pursuant to my Orders of 31 August 2023; however, confirmed he had read the applicant’s submissions.
21. The respondent advised the Court on 27 October 2023 that he opposed the application for costs. The respondent made no application to file any materials outside of the Court’s Orders, in support of this position.
22. The applicant stated they rely on the written submissions and materials filed and submitted that the conduct of the respondent unnecessarily and prejudicially impacted on the applicant’s capacity to bring her application for determination in a timely and cost-effective manner, contrary to the purpose of the Act, which resulted in her incurring costs that were ultimately thrown away in the proceedings.
23. The applicant submits the conduct of the respondent in the case management steps was such a departure from the proper conduct of the matter, even for a self-represented litigant, that the application became unnecessarily protracted, complex and frustrated. That the case management and pre-trial steps undertaken in this matter were unreasonably protracted by the repeated and ongoing failure of the respondent to meet, or make reasonable efforts to meet, the various Court Orders made and that due to these delays and the absence of information from the respondent, the applicant was required to obtain significant evidence in support of her position, including multiple updated reports and affidavits.
24. The respondent made oral submissions in respect to the applicant’s written submissions and application and informed the Court that it was his view that he ought be compensated for his costs and suggested some of the delays in these proceedings were due to the mediation hearings. The respondent conceded he made errors in not filing materials and conceded he had not complied with Court Orders. He stated he did not seek to delay matters deliberately; however, chose not to explain the reasons for the delays any further. It was submitted by the respondent that the applicant had not done their research and made mistakes and were ill prepared and that he was imprisoned so could not see why he had to pay money as well. He also submitted that no one had taken into account that he was incarcerated throughout the proceedings.
25. The applicant made submissions in reply, confirming that this application was limited to the pre-trial costs of interlocutory hearings as foreshadowed and the costs of the costs application hearing on 27 October 2023 and that the final outcome of these proceedings are not relevant to the application.

Application to recuse myself – apprehension of bias

26. At the conclusion of submissions by both of the parties, the respondent sought leave to make a late application for me to recuse myself from hearing the costs application.
27. The respondent’s application for leave was allowed and he was invited to make submissions. The respondent made submissions that he was at a disadvantage because the matter was brought back to this Court and believed an independent judge was needed to hear the application as I did not understand people that were incarcerated and so I would show a bias against the respondent in my decision making.

Legal principles

Costs application

28. Section 85K of the Sentencing Act 1991 states, in respect to costs in these proceedings:

“Costs of proceeding

Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.”

29. The purpose of the provisions was explained in Kaplan v Lee-Archer^[2] by his Honour Buchanan JA, who stated:

“Those provisions are designed to provide an expeditious, cheap means of determining claims for compensation. As the Attorney-General said, in his second reading speech:

‘Where an offender has been found guilty of a crime, important facts about the offender’s actions and liability are already before the Court. This provides the court with an opportunity to assess the victim’s compensation claim soon after the offender has been sentenced. This procedural economy provides victims with a speedy and low cost option for seeking recompense from offenders without having to resort to civil proceedings.’

... .”

30. Further, in RK v Mirik and Mirik,^[3] his Honour Bell J stated:

“Thus, in Victoria, the modern legislation – which is in Part 4 of the Sentencing Act – is more beneficial to victims, in procedure and content, than its historical antecedents. The scheme in Part 4 is part of a set of enactments that assists and supports victims of crime. It reflects developments in legislative policy and social attitudes about how the courts should take greater account of the interests of the victims of crime. Doing so is now embedded more deeply in law and public administration than it once was.”

31. The applicant referred the Court to the matter of AA (a pseudonym) v Cooper (Ruling),^[4] where this Court considered the scope and application of s85K, and where his Honour Judge O’Neill stated that, from these and various authorities, he concluded the following:

“(a) The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category;

(b) Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded;

(c) Circumstances which may justify the award of costs include the following:

(i) the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;

(ii) the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;

(iii) the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;

(iv) the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.”

32. Further, in V1 v Xydias,^[5] the Court suggested that the exercise of the Court’s discretion under s85K of the Act “turns largely on the facts of each case”.
33. In Crespo v Kelson,^[6] his Honour Tinney J said:

“The drafting of s 85K of the Act makes it plain that whilst in the ordinary course of events, cost will not be awarded in connection with applications for compensation, there will be some circumstances in which it would be appropriate for the usual position to be modified. The decision on the Court’s exercise of its discretion as to costs will turn on the facts of each case.”

34. In Paulino v Paulino,^[7] his Honour Elliott J said that the Sentencing Act was –

“... so drafted to take into account that ‘there may be circumstances when costs should be awarded against a party’, for example where an application is unreasonably contested. The decision to exercise the court’s discretion as to costs must turn on the facts of each case.”

Apprehended bias – Application to recuse myself from hearing the application

35. In Concrete Pty Limited v Parramatta Design & Developments Pty Ltd,^[8] Kirby and Crennan JJ referred to the well-established principles in relation to apprehended bias of judicial officers.
36. In the joint judgment in Ebner v The Official Trustee in Bankruptcy,^[9] Gleeson CJ, McHugh, Gummow and Hayne JJ stated as follows:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

[footnotes omitted]

37. In Johnson v Johnson,^[10] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated:

“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly,^[11] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

38. Concluding in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd,^[12] Kirby and Crennan JJ further stated:

“Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.”

39. Bias by reason of prejudgment must be “firmly established”.^[13]

Decision

Apprehended bias – Application to recuse myself from hearing the application

40. I do not accept that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the question I am required to consider.
41. The respondent’s suggestion that this application requires the assessment of an independent Judge was not supported by any evidence or further explanation and so I am not satisfied it has demonstrated any real possibility of bias and is merely speculative and remote at best.
42. These applications were indeed made before me during the interlocutory hearings on previous occasions, at which time, I deferred them until the conclusion of the compensation application and so, in my view, and clearly in the view of her Honour Judge Manova, they should be remitted to me for consideration and determination given I conducted the hearings that are the substance of the costs application.
43. I do not accept the respondent’s submissions that I did not understand people that were incarcerated, when in fact all of the respondent’s four early adjournment applications had been granted due to the problems the respondent was experiencing in receiving paperwork from the Corrections authorities and accessing lawyers whilst in custody and needing the assistance of family members, his unavoidable transfers between one facility and another and specifically the respondent’s requests to remain in the Corrections facilities for his hearings due to the logistical arrangements that come with transporting him physically into the Court.
44. These adjournments provided the respondent with more than a fair and reasonable opportunity to prepare for these hearings and he was, in my view, provided a great deal of latitude because of his incarceration and as being a self-represented litigant.
45. I do not accept that the respondent has articulated a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. A bias by reason of prejudgment has not been established to any extent.
46. In applying the legal principles to the circumstances of this case, I do not accept that it gives rise to a finding of bias and I am satisfied an apprehension of bias does not exist and so the application for me to recuse myself is refused.

Costs application

47. The facts of this case are, in my view, unique and required a comprehensive review of 17 hearings to identify the causal connection between the costs outlaid by the applicant and the conduct of the respondent.
48. During the course of the pre-trial case management in this proceeding, I made the following observations of the conduct of the parties:

(a) The respondent requested multiple adjournments to obtain legal advice and the Court made all endeavours to assist and enable the respondent to obtain legal assistance and advice;

(b) The respondent advised the Court on several occasions that he had sought and obtained legal advice naming specifically three different lawyers on separate occasions; however, advised the Court he was content to proceed as a self-represented litigant;

(c) The respondent confirmed with the Court at the conclusion of each directions hearing that he understood the Court Orders and what was required of him and the Court procedures and Court Orders were always explained to the respondent in very specific detail. The Court spent a considerable period of time explaining issues concerning substantive legal rights and procedures and outlining what was required of the respondent to ensure the respondent was not unfairly disadvantaged to which the respondent acknowledged to the Court that he understood;

(d) The applicant went above and beyond to assist the respondent on numerous occasions, contacting his lawyers with the respondent’s consent, obtaining materials for his benefit and liaising with the Office of Public Prosecution in respect to the restrained assets of the respondent. This was often acknowledged by the respondent and, in my view, demonstrated a desire by the applicant to make this a timely, cost effective and efficient procedure;

(e) The respondent appeared at a number of hearings ill prepared and had not complied with Court Orders, which necessitated a number of adjournments of the proceedings. There was little or no explanation for the non compliance with these Orders and on the return dates of these hearings, the respondent presented as simply indifferent to the proceedings and the Orders made by the Court;

(f) The respondent had the assistance of family within the community who had assisted the respondent to prepare and file material on behalf of the respondent and who had sought and obtained legal advice and guidance on behalf of the respondent;

(g) The respondent communicated in written form with the Court on several occasions in a timely manner specifically seeking adjournments and filing materials. His incarceration did not impede this communication, dispelling any suggestion by him that this was unachievable due to his incarceration;

(h) The respondent changed his case theory/strategy on several occasions which necessitated repeated adjournments and the vacation of judicial mediations and final hearing dates;

(i) The respondent blatantly disregarded Court Orders and made these concessions during submissions;

(j) The Court had listed this proceeding for final hearing on three separate occasions from the date of the second directions hearing; however, two of those hearings dates were lost/vacated due to the respondent’s repeated non compliance with Court Orders and the need for adjournments;

(k) The proceeding was listed for a judicial mediation at the request of both of the parties on four occasions; however, all were vacated due to the respondent’s failure to comply with Court Orders, the respondent advising the Court he was not ready to proceed and that he wanted to seek legal advice after advising the Court he would proceed as a self-represented litigant and when the respondent changed his case theory and sought to dispute all evidence in the application;

(l) The applicant either consented to, or indeed created, the need for an adjournment on some occasions and I have taken these concessions into account when deciding where and when it may be appropriate for an award of costs against the respondent.

49. It is accepted by the Court the challenges facing self-represented litigants and that parties’ case theories and strategies can and do change; however, the Court’s observations of the respondent in this proceeding suggest a more deliberate and indifferent attitude and presentation to bringing these matters to some conclusion.
50. The applicant was required to seek updated expert reports and prepare additional materials due to the repeated adjournments and delays, which I am sure were an unintended consequence of the respondent’s deliberate attempts to prevent this matter reaching conclusion. Nonetheless, these expenses can be, in my view, directly attributed to the conduct of the respondent.
51. I am satisfied the respondent was afforded all the appropriate procedural fairness, however, sought to exploit this and deliberately delay the proceeding. I accept it was the respondent who intentionally hindered and obstructed the progress of these matters in an attempt to avoid any hearing and outcome of the application.
52. I am satisfied that the circumstances of this application are such as to warrant a departure from the ordinary rule and I am prepared to make an Order for the payment of part of the costs.
53. It is, in my view, therefore appropriate for the usual position that parties bear their own costs to be modified.
54. The respondent’s submissions and obvious personal views that as he was imprisoned, he could not see why he had to pay money as well, supports the view that his conduct was designed to frustrate the award of appropriate compensation, was unreasonable and exacerbated the consequences of the claimed injury.
55. I would reiterate the comments made at paragraph 43 of this Ruling and simply add that the respondent demonstrated clearly to me that he had the assistance of family and a case worker in the prison, access to legal advice and had capacity to write to the Court and file materials or request adjournments in a timely manner when he chose to. On every occasion when the respondent expressed that he did not understand the procedures or orders or processes, the Court thoroughly explained these orders and processes to him, with an acknowledgement by the respondent that he understood.
56. The respondent’s selective engagement in the process, in my view, resulted in the proceeding becoming unnecessarily protracted, complex and frustrating. His submissions that his incarceration had not been factored into the case management process are nothing more than convenient and did not place him at a disadvantage as he has suggested it did.
57. This application was far from an expeditious, cheap means of determining the applicant’s claim for compensation.
58. The respondent accepts he did not comply with Court Orders and did not file materials when required to and suggests this was not deliberate. I do not accept this.
59. I similarly do not accept that the applicant had not done their research and made mistakes and were ill prepared.
60. These proceedings were conducted over a period of 17 hearings, a number of them being entirely unnecessary at the hand of the respondent’s apathy.
61. Therefore, it is my view that costs should be awarded to the applicant in this matter.
62. The manner in which the respondent has dealt with this application and all of the aforementioned factors supports the exercise of my discretion in the applicant’s favour.
63. I do not propose to order costs, however, for interlocutory hearings 1-4, 8 and 10-16, as I accept that the respondent required additional time given his incarceration status and the adjournments were either warranted or agreed to by the applicant.
64. The applicant sought total costs of $22,630.20.
65. Excluding the aforementioned hearings, hearings 5, 6, 7, 9 and 17 all, in my view, warrant an award of costs. On review of the applicant’s table of costs calculations pursuant to the Supreme Court (Chapter 1 Appendices A and B Amendment) Rules 2021, I am satisfied it is appropriate to award costs for the sum of $15,627.38.

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^[1] DPP v Price [2021] VCC 1307
^[2] [2007] VSCA 42; [2007] 15 VR 405 at paragraph [6]
^[3] [2009] VSC 14; [2009] 21 VR 623 at paragraph [6]
^[4] [2015] VCC 233 at paragraph [17]
^[5] [2009] VSC 616 at paragraph [126]
^[6] [2021] VSC 264 at paragraph [83]
^[7] [2020] VSC 642 at paragraph [94]
^[8] [2006] HCA 55; (2006) 229 CLR 577
^[9] [2000] HCA 63; (2000) 205 CLR 337 at paragraphs [6]-[8]
^[10] [2000] HCA 48; (2002) 201 CLR 488 at paragraph [13]

^[11] [1989] HCA 44; (1989) 167 CLR 568

^[12] (Supra) at paragraph [112]
^[13] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J