Ascic v Comcare (No 2)

Case [2023] FCA 319

FEDERAL COURT OF AUSTRALIA

Ascic v Comcare (No 2) [2023] FCA 319

File number: WAD 425 of 2019
Judgment of: BANKS-SMITH J
Date of judgment: 6 April 2023
Catchwords: COSTS - where application dismissed - respondent sought order for payment of costs on lump sum basis - assessment and determination of lump sum
Cases cited:

Ascic v Comcare [2021] FCA 1498

Ascic v Comcare [2022] FCA 1245

Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506

Hislop v Paltar Petroleum Limited (No 4) [2017] FCA 1632

Zafra Legal Pty Ltd v Harris (Liquidator) (No 3) [2021] FCA 441
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 25
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant did not appear
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

WAD 425 of 2019
BETWEEN:

MARKO ASCIC

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

BANKS-SMITH J

DATE OF ORDER:

6 APRIL 2023

THE COURT ORDERS THAT:

1.The applicant is to pay the respondent's costs of the application fixed in the sum of $17,512.77.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BANKS-SMITH J:

  1. Mr Ascic applied to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) by way of an appeal from a decision of the Administrative Appeals Tribunal that no permanent impairment compensation was payable to him under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

  2. I dismissed the application:  Ascic v Comcare [2021] FCA 1498. At the time, I indicated to Mr Ascic that I would allow him the opportunity to be heard as to the costs of his unsuccessful application.

  3. Mr Ascic sought leave to appeal to the Full Court from the orders dismissing his application, but his application was refused:  Ascic v Comcare [2022] FCA 1245.

  4. For various reasons the issue of costs was not determined at that time, but I have now received submissions from both Comcare and Mr Ascic, and it was agreed that I would determine the question of costs on the papers.

    Costs sought by Comcare

  5. Comcare submitted that costs should follow the event, and be determined in accordance with the lump-sum costs order regime outlined in the Federal Court's Costs Practice Note (GPN‑Costs).  It seeks an order that Mr Ascic pay its costs of the application fixed in the sum of $17,512.77.

  6. I agree that costs should follow the event.  That is, Mr Ascic as the unsuccessful applicant should pay Comcare's costs of the application.  There was nothing unusual about the application or its outcome that would justify a different conclusion.

  7. In support of its application, Comcare relies on a costs summary affidavit of Daphne Jones‑Bolla dated 14 December 2021.  This affidavit is anticipated by para 4.10 of GPN-Costs.  Annexure A to GPN-Costs details the types of matters that should be…

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AGLC
Ascic v Comcare (No 2) [2023] FCA 319
Case
[2023] FCA 319
Decision Date

CaseChat Overview and Summary

In the case of Ascic v Comcare (No 2), Comcare sought an order for payment of its costs on a lump sum basis. The matter was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the costs claimed by Comcare were reasonable and appropriate, given the work undertaken and the fees charged. The court was required to assess the source, make-up, and rates of the costs and disbursements incurred by Comcare, and determine whether any discounts should be applied.

The court considered the evidence provided by Ms Jones-Bolla, who had undertaken a process of assessing the actual costs, applying scale rates where applicable, and considering and applying discounts. The court found that Ms Jones-Bolla had carefully and responsibly considered the amount of costs that should sensibly be claimed from Mr Ascic, and that the discount applied to the professional fees was appropriate and sufficient. The court also noted that there was no evidence of inappropriate duplication or delegation of work, and that the use of counsel was sensible in a matter of this nature.

The court determined that the costs claimed by Comcare were reasonable and appropriate, and made an order that the applicant, Mr Ascic, was to pay the respondent's costs of the application fixed in the sum of $17,512.77. The court found that there was no evidence to suggest that Comcare had acted illegally or in an unauthorised manner, and that there was no finding made with respect to Comcare that would justify it being disentitled to its costs. The court rejected Mr Ascic's submissions that sought to re-agitate matters that were the subject of the application before it, and did not engage with the materials filed in support of the lump sum costs order.

Orders

Orders of the court

1. The applicant is to pay the respondent's costs of the application fixed in the sum of $17,512.77.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Ascic's submissions sought to re-agitate the matters that were the subject of the application before me and the application for leave to appeal. They did not engage with the materials filed in support of the lump sum costs order. I understand that Mr Ascic continues to feel aggrieved by the outcome of this particular pursuit of compensation. However, contrary to Mr Ascic's submissions, I do not accept that there was anything illegal in the process undertaken by Comcare or that it otherwise conducted itself in a manner that was unauthorised. There has been no finding made with respect to Comcare that would justify it being disentitled to its costs.Consideration For context, it is to be noted that I case managed and heard Mr Ascic's application, and so I am familiar with the issues that were in play and the kind of work that was undertaken on behalf of Comcare. I am satisfied that Ms Jones-Bolla has gone to appropriate lengths to consider the source, make-up and rates of the costs and disbursement incurred. She has undertaken a process that commenced with a consideration of actual costs, considered scale rates where applicable, and considered and applied discounts before indicating a figure that is the amount claimed. I take into account the difficulty of some of the matters that needed to be addressed in the application. It seems to me that Ms Jones-Bolla has carefully and responsibly considered the amount of costs that should sensibly be claimed from Mr Ascic. I take into account that Ms Jones-Bolla had already applied a discount to the amount of the professional fees otherwise payable by Comcare. I consider that the discount is appropriate and sufficient: see generally my collection of some of the ranges of discounts reflected in the cases in Zafra Legal Pty Ltd v Harris (Liquidator) (No 3) [2021] FCA 441 at [120]. I do not consider it is necessary to apply any further discount to that amount in all the circumstances. There is no suggestion that solicitors of an inappropriate level were utilised or that excessive amounts of work were undertaken in the course of the proceeding. Nor is there evidence of inappropriate duplication or delegation of work. The use of counsel was sensible in a matter of this nature and the fees charged were, in my view, conservative. Having regard to Ms Jones-Bolla's evidence, I am satisfied that the work undertaken and the amounts charged were fair and reasonable. I therefore determine that the costs in the lump sum sought by Comcare are reasonable and appropriate. There will be an order accordingly.