SUPREME COURT OF VICTORIA ISSUES JUDGEMENT FOR TINA LOMBARDO AND ORS V/S DERMATOLOGY AND COSMETIC SURGERY SERVICES CASE

Australia, Nov. 22 -- Supreme Court of Victoria issued text of the following judgement on Nov. 15:

1 At hearing on 11 November 2024 the parties argued those aspects of orders that had not been agreed to give effect to the reasons of the Court in Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2024] VSC 608 (the reasons). Largely, the contentious matters related to the costs of the applications. The first defendant raised issues with being required to file an amended defence prior to the foreshadowed discontinuance against the seventh defendant given the consequential amendments that would apply to it. The orders made on 14 November 2024 contemplate the timing of defences and replies will be raised at the case management conference on 6 December 2024 in the context of overall timetabling issues.

2. The remaining issues between the parties addressed the costs of the various summonses.[1]

B The plaintiffs' summons filed 24 May 2024 for leave to amend

3. The plaintiffs were largely successful in their application to amend and although the summons did not seek costs, the plaintiffs seek an order that the first, second, and third to sixth defendants[2] pay their costs of the summons on a standard basis. The plainitffs submit that, although r 63.17 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) provides that costs of an application for leave to amend a pleading when leave is given be costs in the proceeding, the Court should exercise its discretion in this case to 'otherwise order' as the rule provides. The plaintiffs submit an order for costs in this case would give effect to the principle that a successful party is generally entitled to their costs, a principle that has been described as 'one of the most, if not the most, important principle'.[3] The plaintiffs submit that the Court is in a good position to determine where the justice between the parties lies and contend that it lies with the plaintiffs who have succeeded in their application.[4]

4. The plaintiffs further relied on Wawryk & Anor v Mercedes-Benz Australia/Pacific Pty Ltd & Anor (Costs Ruling) ('Wawryk')[5] to suppost the proposition that the costs of their summons be otherwise ordered under r 63.17 as at the 11 and 12 July 2024 hearing the submissions addressing the plaintiffs' summons were the mirror arguments made in respect of the second defendant and third to sixth defendants' summonses. The plaintiffs made reference to paragraph [82] of Wawryk to submit that this overlap supports a discrete costs order when the fate of both applications is known.

5. The second defendant and third to sixth defendants submit that the Court should simply apply r 63.17 of the Rules and order the costs of the plaintiffs' summons be costs in the proceeding. These defendants submit there is no basis to otherwise order. The defendants submit that Wawryk was distinguishable as leave to amend was refused so there was no occasion to consider r 63.17.

6. The first defendant submits that there should be no order as to costs against it in respect of the plaintiffs' summons and if there are to be costs ordered then, as with the other defendants' costs, they should be determined by applicaton of r 63.17 of the Rules and the Court should not otherwise order. The first defendant submits that it did not actively oppose the application to amend and did not put on a substantive argument or cause any costs to be incurred. The first defendant was required to appear because of its own costs summons, discussed below and, other than acknowledging that it would obtain a benefit if the other defendants succeeded in their opposition, did not actively participate in the application to amend.

7. The costs observations in Northern Territory v Sangare[6] were in the context of the discretion to order costs at the conclusion of the proceeding. That principle may still be accommodated in the litigation overall with an order for costs in the proceeding. The issue is whether on this application, in which the plaintiffs have largely succeeded on the matters where agreement was not reached, a separate order as to their costs of their application should be made.

*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/711.html)

Disclaimer: Curated by HT Syndication.