Diakou v Rouse

[2019] VSCA 199

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Discretion to award costs
4. › Proceeding concluding without substantive adjudication
5. › Whether conduct of party warranted costs order
6. › Whether judge erred in making adverse findings where parties agreed no substantive findings to be made
7. › Supreme Court Act 1986 (Vic), s 24(1)
1. Practice and Procedure
2. › Costs
3. › Costs follow the event
4. › Meaning of 'event'
5. › Whether interlocutory order constituted 'fresh event'
6. › Whether costs order warranted where neither party succeeded or failed
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Residual discretion to refuse leave
5. › Whether exceptional circumstances exist
6. › Potential impact on solicitor's right to practise
7. › Supreme Court Act 1986 (Vic), s 14C
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary costs order
4. › House v The King error
5. › Whether judge acted on wrong principle or failed to take into account material consideration

Quick Take

Where parties agree that a judge will not make substantive findings, the judge cannot then make adverse findings about a party's compliance with court undertakings or orders as part of a costs ruling. A costs appeal may be treated as 'exceptional' (warranting leave) where the judge's costs decision is informed by adverse findings about a solicitor's professional conduct that have the potential to affect the solicitor's right to practise. Where a proceeding concludes without substantive adjudication, the starting point is no order as to costs, and departure requires the court to identify specific unreasonable conduct in the proceeding itself, not conduct in related proceedings.