By Stuart Eustice, Partner and Lidia Martinez Chavez, Lawyer

In a recent Court of Appeal ruling, the Court dismissed Ms Dilpreet Kaur’s (the Applicant) leave to appeal against RMIT (the Respondent) determining it was “totally without merit” under section 14D(3) of the Supreme Court Act 1986.

The Applicant, a self-represented litigant, had filed an application, which was dismissed on 11 November 2024. The Respondent subsequently sought an order for the Applicant to pay its costs on an indemnity basis, arguing that the application had no merit, and the Applicant should have been aware of this.

The Court of Appeal considered various authorities in deciding whether to award indemnity costs. In Macedon Ranges Shire Council v Thompson [1] the Court outlined that indemnity costs may be appropriate where a party, upon receiving proper legal advice, should have known their case had no reasonable prospect of success but proceeded with the application. Further in Cai v County Court of Victoria,[2] the Court further clarified whilst indemnity costs may be warranted in cases where an application is deemed “totally without merit”, special considerations can arise when an Applicant is self-represented.

The Court acknowledged the Applicant had previously been represented in earlier stages of the proceedings, including at the Victorian Civil and Administrative Tribunal, but had chosen to represent herself at the trial level and before the Court of Appeal. In its analysis, the Court noted that whilst the trial judge’s ruling was clear and could be understood by a legal professional, the issues raised in the appeal—specifically whether the deed of settlement between the Applicant and the Respondent should be set aside—were complex. Moreover, the Court recognised that the Applicant, for whom English is not her first language, likely did not comprehend the full extent of the weaknesses in her claim and believed the trial judge had not adequately addressed her claims.

Drawing from these considerations, the Court concluded that whilst the Applicant’s application was indeed without merit, the fact that she was self-represented, lacked legal advice, and did not appear to understand the implications of her case meant she could not be held to the same standard as a represented litigant.

Ultimately, the Court determined the Applicant’s conduct did not warrant an award of costs on the indemnity basis. Instead, the Court ordered the Applicant pay the Respondent’s costs on a standard basis.

This decision reaffirms Victorian Courts will exercise caution when awarding indemnity costs against self-represented litigants, particularly where it is unclear whether they had the capacity to recognise the futility of their claim.

[1] (2009) 170 LGERA 41.

[2] 2017] VSCA 278.