IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
INSTITUTIONAL LIABILITY List
S ECI 2021 02238

BETWEEN:

CARA DOUBLE 	Plaintiff	
		
and 		
		
THE SALVATION ARMY (VICTORIA) PROPERTY TRUST 	Defendant	

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JUDGE:	O’Meara J 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 August 2023 	
DATE OF JUDGMENT:	23 August 2023	
CASE MAY BE CITED AS:	Double v The Salvation Army (Victoria) Property Trust (No 2)	
MEDIUM NEUTRAL CITATION:	[2023] VSC 493	

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COSTS – ‘Usual order’ that costs follow the event – Applicable principles – Court will attempt to do substantial justice – Numerous failed points taken by party ultimately successful at trial – Special or exceptional circumstances shown – Order that plaintiff pay a percentage of defendant’s standard costs – Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, Board of Examiners v XY (2006) 25 VAR 193, Chen v Chan [2009] VSCA 233, Swindells v Victoria (No 2) [2016] VSCA 77, Northern Territory v Sangare (2019) 265 CLR 164, Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 and Stevens v DP World Melbourne Ltd [2022] VSCA 285 considered.   

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	In person 		
			
For the Defendant	DJ Wallis 	Minter Ellison 	

HIS HONOUR:
1	On 7 August 2013, I delivered reasons for decision (‘Primary reasons’) in this proceeding and indicated that judgment should be entered for the defendant.
2	Counsel for the defendant indicated that he had instructions to seek an order that the plaintiff pay the defendant’s costs of the proceeding.  
3	As neither counsel for the defendant nor the plaintiff had then had the opportunity to read the Primary reasons, I indicated that if the defendant’s application were to be pressed, the Court and the plaintiff should subsequently be notified, a brief outline of submissions provided, and the parties afforded an opportunity to be heard.
4	The solicitor for the defendant subsequently confirmed that the defendant would seek the order earlier indicated, and provided a brief written outline of submissions in which the defendant relied upon the general rule that costs follow the event and submitted that no exception applied.  In particular, it was submitted that –
The defendant did not bring about the litigation.  The plaintiff was only self-represented after mediation, having been previously represented by solicitors and counsel.  This has been a conventional self-represented litigant case, heard and determined without significant controversy.  The defendant has been wholly successful.  There are no special circumstances which ought to cause the Court to depart from the settled practice, that costs follow the event.
5	The defendant also submitted that it did not ‘unduly prolong the trial’ and, among other things, defended the cross-examination of the plaintiff.  
6	In oral argument, counsel for the defendant commenced by submitting that the defendant was ‘entitled’ to an order for its costs.  Immediately thereafter, it was submitted that –
… we say that costs do follow the event.  That should be the normal course.  Unless there are circumstances or conduct on the part of the successful party which justify a departure from that particular course.  And we say there is no such conduct on the part of the defendant in this particular case.  We say it’s a conventional self-represented litigant case.  We say the proceeding was conducted efficiently and appropriately.  The defendant only called a small number of witnesses.  And the trial proceeded, we say, in a non-contentious manner.  There is simply no reason – there can be no criticism, we say, made of the defendant.
We don’t read your Honour’s reasons as levying a specific criticism against the defendant.  And we say, in those circumstances, costs ought follow the event.
7	Beyond that ambitious and somewhat defiant opening gambit, counsel maintained that –
(a)	the defendant was ‘entitled to conduct its case in the way in which it did’;
(b)	the decision of the Court of Appeal in Swindells v Victoria (‘Swindells’) is ‘on all fours with this situation’; and
(c)	the plaintiff had been cross-examined in an ‘entirely appropriate way’.
8	For her part, when asked about the defendant’s submissions, the plaintiff stated –
I just think it’s disgusting.  Sorry to, yeah.
9	It is not necessary to embrace the plaintiff’s description of the defendant’s submissions; it is sufficient to state that much of what was advanced on behalf of the defendant cannot be accepted.
10	In that regard, the defendant’s claim to be ‘entitled’ to an order for its costs overstates the true position.  For that reason, the defendant’s contention should be interpreted as a submission that, in the circumstances, such an order should be made.
11	I accept, of course, that the usual rule is that costs follow the event.  There are reasons why that should be so.  Yet, in special or exceptional circumstances the dictates of justice can require that a different order should be made.  
12	In Chen v Chan, on which the defendant relied, the Court of Appeal identified several relevant principles, including that –
… the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
13	In that instance, the parties had enjoyed ‘mixed success’ and the Court of Appeal made orders reflecting that result.
14	Consistently with the principles to which I have referred, in Metzke v Sali & Sons Pty Ltd (No 2), the Court of Appeal made no order as to the costs of an appeal even though the appellant enjoyed a measure of success.  In that instance, the substantial bulk of the appeal had been taken up with questions on which the appellant failed.
15	More recently, in The Age Company Ltd v YZ (a pseudonym), the appellant succeeded and submitted that costs should follow the event.  The Court of Appeal stated –
This Court has a broad discretion to determine the costs to be paid by the parties by virtue of s 24(1) of the Supreme Court Act 1986.  The usual order is that costs follow the event.  This Court may apportion costs based on an assessment of the degree of success achieved by a party.  One of the ways this Court can achieve apportionment is by making an order that a party is liable for a certain percentage of the costs incurred.
16	In that instance, the Court of Appeal observed that although the appellant had failed in its primary endeavour, it had enjoyed some success, as had the respondent.  That said, the overall success of the appellant was ‘relatively modest’ and, in the circumstances, the Court of Appeal determined that the respondent should pay 25% of the appellant’s costs.
17	Finally, and even more recently, in Thurin v Krongold Constructions (Aust) Pty Ltd (No 2), the Court of Appeal considered a referral of questions of law from the Victorian Civil and Administrative Tribunal.  Consistently with the above, the Court stated –
In exercising its discretion, the Court is entitled to look to the realities of the litigation and it will attempt to do ‘substantial justice’ between the parties.  Accordingly, while the general position is that costs should follow the event, such an order may not be appropriate in every case.  In particular, where there is a multiplicity of issues, and mixed success has been enjoyed by the parties, the Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis.
18	In short, as I have indicated, in most cases it will be appropriate to make the ‘usual order’.  However, there will be special or exceptional cases in which it will be appropriate to apportion costs, and even to make no order as to costs.
19	In that regard, it is plain that an ultimately successful litigant is not at liberty to take ‘bad’ points with impunity and expect that the Court should simply turn a blind eye when considering the question of costs.  The authorities have long made it clear that a pragmatic approach may be adopted in framing an order for costs in order to take account of success, or lack of success, on an issues basis.
20	I should add that nothing in Swindells is inconsistent with the above.  Further, a reading of Swindells reveals that it was in no way similar to the present case.  
21	Notwithstanding that fact, seemingly with reference to Swindells, counsel for the defendant submitted that –
… the plaintiff’s potential impecuniosity is not a relevant consideration.
22	In Swindells, the Court of Appeal stated that, in that case, matters such as futility and the applicant’s ‘health, family and employment difficulties’ were not relevant to the exercise of discretion.  However, in neither that instance nor, earlier, in Board of Examiners v XY, did the Court of Appeal exclude the possibility that certain or exceptional circumstances might make the financial position of a party relevant to an exercise of the costs discretion.
23	In that connection, I should note that subsequently, in Northern Territory v Sangare, the High Court confirmed that the impecuniosity of an unsuccessful party, ‘without more’, is not a sufficient reason for depriving a successful party of its costs.  In allowing the appeal, unanimously, the High Court stated – 
The respondent’s impecuniosity was the only reason identified by the Court of Appeal for depriving the appellant of its costs.  That consideration was not relevant to the proper exercise of the Court’s discretion as to costs.  The Court of Appeal’s decision cannot be supported as an exception to the general principle that a wholly successful party should be entitled to an order for its costs.
24	It will be evident that it has not been necessary for me to give any further consideration to either the impecuniosity of the plaintiff or the futility of any costs order made.
25	That brings me to the relevant circumstances of the present case, in respect to which, as I have noted, the defendant essentially submitted that it was a ‘conventional self-represented litigant case’ in respect of which it had acted ‘in an entirely appropriate way’ and been ‘wholly successful’.  
26	In my view, the description ‘conventional self-represented litigant case’ is misplaced and inaccurate.  Very few ‘self-represented litigant’ cases are trials for common law damages and even fewer involve litigants with recognised, essentially unchallenged and serious psychiatric diagnoses of the kind afflicting the plaintiff.  
27	It should be evident from the Primary reasons that the plaintiff’s distress, vulnerability, disorganisation and lack of resources presented major challenges in the lead up to and throughout the running of the case.  It was an acutely difficult situation in which it was necessary that justice be done to both parties.
28	Nonetheless, the defendant conducted the trial in a manner which seemed to be directed to doing the minimum in order to accommodate the realities to which I have referred.  That was particularly so during the cross-examination of the plaintiff.  
29	Appellate courts have long expressed disquiet concerning excessive cross-examinations directed to the credit of the plaintiff following which the trier of fact is invited to reject the whole of the plaintiff’s evidence.
30	A particular risk arising from that approach, apart from its potential excessive length and debateable relevance, is that it can distract the attention of the trier of fact from the need to examine the whole of the relevant evidence.  
31	That occurred in the recent case of Stevens v DP World Melbourne Ltd (‘DP World’), in which the Court of Appeal referred specifically to cases involving mental injury and stated –
Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of employment.  In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff’s evidence, might have been the product of the mental injury that arose in the course of the plaintiff’s employment.  A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects).  For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health.  Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case).  Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own.  At the very least the judge should have analysed the effect of the plaintiff’s mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff’s evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence.
32	Considerably earlier, in Whisprun Pty Ltd v Dixon (‘Whisprun’), Kirby J, in an influential passage of reasoning (albeit in dissent), cautioned against notions that the trial process is no more than a public tournament or contest, and that the giving of untruthful evidence should be considered determinative of the overall result.  His Honour referred to the ‘old days of civil jury trials’ in which ‘parties would fight such cases with as much bluster and prejudice as they could respectively get away with’ and emphasised, by contrast, the rationality of the modern process and the importance of taking account of the whole of the relevant evidence.  In that context, his Honour stated –
To reduce the case to a simple contest of credibility was to fall into the trap of irrationality and the risk of prejudice – turning the court’s process into one of punishing the respondent for her forensic performance instead of evaluating the objective testimony in the context of all of the evidence called at the trial.
33	As should be apparent from a reading of the Primary reasons, in the present instance the cross-examination constituted an attritional and at times abrasive endeavour to destroy the plaintiff, and her account, via the steady, emotional and visible decompensation of the plaintiff over two days.
34	Notwithstanding the above, the defendant presently defended that approach by submitting that –
(a)	it was ‘entirely appropriate’; 
(b)	the plaintiff had been treated with ‘sensitivity and great care’; and 
(c)	the observations in the Primary reasons were no more than ‘a half-way house’.
35	Those submissions would read the Primary reasons as expressing no more than a fashion preference for a different ‘style’ of cross-examination.  
36	With respect, that is not an accurate reading of what was said.  The above observations (at [33]) are plainly apparent in the Primary reasons, as are the further observations that –
(a)	the cross-examination was a cause of the early adjournment of the proceeding on two days;
(b)	the process exacted a very visible toll upon the plaintiff;
(c)	to a significant extent the process amounted to no more than provoking a very vulnerable and depleted woman into giving aspects of evidence that could not be accepted;
(d)	in the circumstances, it was a not inconsiderable feat for the plaintiff to have endured the process, and given the evidence that she did; and
(e)	the defendant’s contention that the plaintiff’s evidence should be wholly rejected was not accepted.
37	To be clear, the defendant’s stance was marked by the risks and deficiencies highlighted in DP World and Whisprun.
38	In that regard, from an early point in the cross-examination, it was suggested to the plaintiff that she was ‘making it up’. Thereafter, it was variously suggested that she was ‘not truthful’, ‘embellishing’ and ‘fabricating’ her evidence.  
39	Much of that was imbued with an insinuation that emerged more fully later in final address –
… in respect of the plaintiff’s evidence, we say she was selective both in respect of her acceptance and rejection of histories.  We have set out in our submissions parts of transcript, and in the table where matters of her history were put to her.  Her acceptances of favourable matters and her rejection of matters unfavourable to that narrative was both transparent and without explanation, and we say that portrays her as being manipulative and untruthful.
40	Despite her many evident difficulties in the case, the plaintiff was not deaf to the  insinuation that she was ‘manipulative and untruthful’.  Indeed, her final address commenced as follows –
Okay.  So I strongly believe my case should succeed, Your Honour, because first and foremost I’m telling the court and I’m telling you the truth of the events that occurred to the utmost best of my recollection considering the incident happened 20 years ago.
Over the course of the last three years right up until and during this trial I can assure the court I have not fabricated, lied or made up any such allegations, contrary to the defendant’s submissions, as I know what the repercussions both morally and legally would entail.
41	During cross-examination, however, the insinuation that the plaintiff was ‘manipulative and untruthful’ was at the heart of her steadily accumulating and ongoing distress that led to a significant number of questions and answers of a barely relevant and ultimately unproductive kind, as well as the need for more breaks and early adjournments.
42	I am conscious, of course, that from the perspective of the defendant, it was facing serious allegations.  I am also conscious that aspects of the plaintiff’s account were capable of raising questions about her reliability if not honesty as a witness. 
43	I should add that I am mindful of the difficulty in determining exactly where to ‘pitch’ questions in cross-examination and that the answers of a witness can cause things to take a relevant turn.  Indeed, that is one of the reasons why the judge is very often in a position of needing to afford counsel a degree of latitude.
44	That said, in the present instance the insinuation (and later plain contention) that the plaintiff was a manipulative liar was an exceptionally serious one; and it was not necessary to pursue it in order that the plaintiff’s account might not be accepted.
45	In that regard, it should have been evident from a relatively early point in the cross-examination that it was unlikely that any such contention would be able to be accepted.  Among other things, the plaintiff’s non-plussed reaction to the first suggestion that she was ‘making it up’ spoke volumes.  However, the course set by the defendant did not appear to accommodate that, or any of the plaintiff’s subsequent responses  (hence, the description of the cross-examination as ‘attritional and, at times, abrasive’).
46	More broadly, it will be evident that the defendant sought to portray the plaintiff – a seriously psychiatrically damaged and vulnerable woman who left school in about year 9, suffered unspeakable abuse and has spent a good part of her life homeless, and much of the trial in tears – as some kind of manipulative mastermind.  It was a wholly improbable proposition and quite out of keeping with the manner in which the plaintiff presented throughout the trial.
47	That is the real point: the approach taken by the defendant contributed significantly to the plaintiff’s distress, led to adjournments and other lost time and could not be accepted.  It was an issue on which the defendant lost and, in my view, could never have succeeded consistently with the authorities to which I have earlier referred.
48	That is not to say, of course, that the defendant was not entitled to query the honesty of the plaintiff’s evidence, at least until it was plain enough that she honestly believed what she was saying.  Nor is it to say the defendant did not have some real points to pursue – on the basis that, for a range of reasons, the plaintiff’s account could not be accepted.  In my view, however, that could have been done in significantly less time than was taken at trial.  The difference, of course, is in the unwavering pursuit of the flawed theory that the plaintiff was a manipulative liar – which was overblown and sponsored disruptive consequences.
49	The unduly antagonistic approach of the defendant was also reflected in a series of further positions and contentions that could not be accepted.  In particular –
(a)	that Dr Hacker had ‘done her best to assist the plaintiff’;
(b)	that adverse inferences should be drawn against the plaintiff as a consequence of her failure to call Luke Button and her current partner;
(c)	that the critical evidence of Mr Nunan was ‘unchallenged’; and
(d)	that the plaintiff’s application concerning the mode of trial should be rejected.
50	The latter point requires a little further explanation.
51	As outlined in the Primary reasons, in the course of an application made immediately prior to the commencement of the trial, the plaintiff spoke of her grave fear of returning to Victoria having fled severe domestic violence.  It was also evident that she had very limited resources as well as no means of support in Melbourne.
52	For its part, the defendant produced affidavits that sought to call into question the plaintiff’s account of domestic violence at the hands of an identified perpetrator and whether her fears were well founded or truly subsisting.  Among other things, it was deposed that the perpetrator identified by the plaintiff could not be found in a search of electoral rolls.
53	When the application was argued, despite the obvious fear and emotion displayed by the plaintiff, the defendant submitted, among other things, that there was ‘insufficient evidence of any continuing existing threat’ to her safety and that there were ‘serious issues of credit’ in relation to both the plaintiff and the identified perpetrator that were ‘best dealt with by being in person’.
54	I should say that contrary to the present submission that the case was of a ‘conventional’ kind; at that time, the defendant submitted that the case was ‘complex’.  The defendant also anticipated that the plaintiff ‘may become upset during the course of her evidence’.   Both of those features were said to be reasons why the trial should be conducted ‘in Melbourne, in person’.
55	The plaintiff’s application was granted, for reasons then given, and the costs of the application were ordered to be in the cause.
56	A matter of days later, however, the plaintiff was the subject of the extensive cross-examination to which I have already referred.  At that time, there was no suggestion that the perpetrator earlier identified should be called to give evidence in order that the ‘serious issues of credit’ could be ‘dealt with’, and the plaintiff’s evidence concerning domestic violence at the hands of that perpetrator was unchallenged.  
57	Indeed, among other things, the plaintiff’s evidence in respect of her terror of the perpetrator, which had been disputed only a matter of days earlier, was unquestioningly accepted and developed.  In that regard, the following evidence was adduced –
You again suffered significant domestic violence at the hands of [the identified perpetrator]?---Yes. 
And you gave evidence about that yesterday. Were you hospitalised on a number of occasions because of the abuse from [the identified perpetrator]?---Yes. 
Did you suffer a number of facial fractures ?---Yes. 
Bilateral eye socket fractures?---Yes. 
Broken nose?---I’m not sure if my nose was broken. 
What about a fractured skull?---Yes, at the base of my skull. 
And on the basis of what you said in your affidavit and the application prior to coming to court, [the identified perpetrator] threatened to kill you, did he?---Yes. 
And to kill your daughter?---Yes. 
And since going to Queensland has [the identified perpetrator] continued to stalk you, has he?---No. 
But you remain terrified of him, do you?---Yes. 
Just in terms of those relationships with [another perpetrator] and [the identified perpetrator], in addition to the domestic violence did they also abuse you emotionally?---Yes. 
Did they also abuse you financially?---Yes.
58	Later still, the following submission was advanced in final address –
In our submission, any effect of the rapes have been overwhelmed by the other traumas of domestic violence, … , the sexual violence perpetrated by others on her.  And in particular, her terror in respect of [the identified perpetrator] and the other man who subsequently raped her.
59	When asked generally about the issue to which I have referred, counsel for the defendant submitted that –
(a)	there was no implication to be drawn from the ‘mere inclusion in the affidavit’ of the fact that the identified perpetrator could not be found in electoral records; and 
(b)	cross-examination was ‘a completely different kettle of fish altogether’.
60	That submission is yet another stance adopted by the defendant that cannot be accepted.  For my part, it is not obvious that the opposing stances adopted by the defendant – a matter of days apart – are reconcilable.  Nor is it apparent how it could now be appropriate that the costs of the defendant’s unsuccessful resistance to the plaintiff’s application should wholly be borne by her.
61	In addition to the above, of course, many aspects of the defendant’s submissions in respect to the present issue cannot be accepted.
62	In the circumstances, it will be apparent that whilst the defendant ultimately succeeded at trial, along the way it pursued numerous points of dubious or no real substance which it lost.  That approach magnified the plaintiff’s distress and contributed to disruption, delays and adjournments.
63	In my view, the circumstances are properly described as special or exceptional, and a costs order should be fashioned so as properly to reflect the defendant’s ultimate success, albeit with largely or entirely avoidable ‘mixed success’ along the way.
64	In that regard, it is appropriate that the plaintiff be ordered to pay 60% of the defendant’s standard costs of the proceeding to be assessed by the Costs Court in default of agreement.
65	For completeness, nothing which I have said should be taken as endorsing the election of the defendant to retain two counsel in what it describes as having been a ‘conventional self-represented litigant case’.  Ultimately, however, that must be a question for the Costs Court, should it come to that.