Belcher v Scruton Property Pty Ltd (No 3)
[2023] FedCFamC2G 10
Federal Circuit and Family Court of Australia
(DIVISION 2)
Belcher v Scruton Property Pty Ltd (No 3) [2023] FedCFamC2G 10
File number(s): BRG 222 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 18 January 2023 Catchwords: INDUSTRIAL LAW – Application in a proceeding (Fair Work Div 2.4 Exemption) – whether order 1 of the Orders made on 18 August 2022 should be varied or set aside – application adjourned – costs to be assessed Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Federal Circuit Court Rules 2001
Cases cited: Belcher v Scruton Property Pty Ltd [2022] FedCFamC2G 67
Massalski & Riley [2022] FedCFamC1A 128
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 16 December 2022 Date of hearing: 14 June 2022 Place: Brisbane Counsel for the Applicant: Mr Amerena Solicitor for the Applicant: Workplace Law Group Counsel for the Respondent: Mr Hogg Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
BRG 222 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GUY ANDREW BELCHER
Applicant
AND: SCRUTON PROPERTY PTY LTD
Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
18 January 2023
THE COURT ORDERS THAT:
1.The matter is listed for hearing on 6 February 2023 for assessment of costs.
2.In the event that the parties reach agreement as to quantum of costs prior to 6 February 2023 the parties shall advise the Court and the hearing shall be vacated.
3.Costs are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
The applicant in these proceedings filed an originating application on 16 April 2020 seeking declarations alleging that the respondent Scruton Property Group Pty Ltd (“Scruton Property”) contravened the Fair Work Act 2009 (Cth) (“FWA”) in failing to pay the applicant for work performed between June 2017 and 29 June 2018 and additional entitlements. He sought to recover all accrued salary and bonuses in accordance with section 323 (1) of the FWA $80,769 plus interest, his leave entitlements of $5769.23 plus interest, payment in lieu of notice of $2884.61 plus interest and superannuation contributions of $7673.
The respondent Scruton Property filed its response on 20 May 2020 seeking the application be dismissed pursuant to rule 4.03 (1) (c) of the Federal Circuit Court Rules 2001 as to the whole of the relief claimed by the applicant on the basis that the application was without reasonable cause. The respondent asserted that the applicant was not an employee and had never been an employee of the respondent. On 26 February 2021 the respondent filed a Defence and further amended Defence 21 October 2021 seeking the application be dismissed.
The matter proceeded to trial for 3 days on 19, 20 and 21 October 2021. Written submissions were filed and judgment delivered on 19 April 2022 dismissing the application.
Following receipt of written submissions the Court delivered judgment with respect to the costs application. I refer to and rely on my reasons for judgment.[1] Neither party in written submissions addressed the quantum of costs to be awarded nor make any reference to the applicable Schedule to be applied under the Rules save that the applicant submitted that if a costs order was made the Court make a “a standard costs order ….from the date of the first offer lapsing being 1 October 2021.”
[1] Belcher v Scruton Property Pty Ltd [2022] FedCFamC2G676
In the absence of any assistance from the respondent quantifying costs the Court ordered the applicant pay the respondents costs on a party/party basis as and from 5 October 2022 “as agreed or taxed”. That order was subsequently amended on 25 August 2022 pursuant to sub rule 17.05 (2) (e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 to read “5 October 2021” in lieu of “5 October 2022.”
Application in a proceeding
On 9 December 2022 the applicant filed an application in a proceeding (Fair Work Div 2.4 Exemption) seeking that pursuant to pursuant to sub rule 17.05 (2) (e) or alternately sub rule 17.05 (2) (h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Order 1 of the Orders made on 18 August 2022 (as amended on 25 August 2022) be set aside or varied to replace the word “taxed” with the words “as otherwise required.” Further the applicant sought an order that the respondent pay the applicant’s costs of the application on an indemnity basis or a “standard basis.”
By way of affidavit filed by the applicant’s solicitor she deposed that on 18 October 2022 she forwarded to the respondent’s solicitor on behalf of the applicant correspondence advising that in accordance with Court Orders made on 18 August 2022 her client would pay the respondent’s costs in the sum of $19,942 (including GST) as per a calculation made under Schedule 2 Part 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
On 24 October 2022 the respondent advised the applicant’s solicitor in correspondence that as the Order made by the Court referred to costs “as agreed or taxed” the appropriate scale of costs to be applied was that set out in Schedule 3 of the Federal Court Rules 2011. On that basis the respondent argued that an order for costs and disbursements of $70,682.79 (GST inclusive) should be made indicating further a preparedness to reduce costs to $63,614.51.
Discussion
The expression costs as “agreed or taxed” is frequently used by the Court. In Massalski & Riley [2022] FedCFamC1A 128 Aldridge J dealt with an application to extend time in which to review the decision of an appeal judicial registrar who made an order that the applicant pay $30,000 by way of security for costs and in the event of failure to comply with that order the appeal be stayed. The applicant did not provide the security as ordered by the specified date and subsequently the applicant’s appeal was dismissed. At [31] Aldridge J said:
[31] An order for costs in this matter is appropriate. The application has been wholly unsuccessful, and the applicant apparently has the means to meet the costs order, having the right to become the sole registered proprietor of the unencumbered lot and the property the subject of these proceedings. Given the history of this matter, it would be quite wrong to encourage further litigation by having the ‘costs taxed.’
[32] Doing the best I can on the material before me, I do not see how a claim for $2,400 for a review of the rules relevant to the application and decisions could be justified. I also think there has been unnecessary duplication between a written outline and oral submissions. The applicant will pay the respondent’s costs, fixed in the sum of $8,000.
As is apparent from Justice Aldridge’s decision “costs taxed” requires an assessment of costs. In order to assess costs some evidence is required regarding costs incurred. The respondent did not adduce any itemised bill of costs on the costs application nor any evidence to assist in assessing costs. Nor did the respondent seek an order that the Court refer the costs for taxation under Part 40 of the Federal Court Rules. Moreover there was no itemised bill of costs to refer to taxation. The applicant argued that a “standard costs order” should be made. That term is not defined in the Rules. In circumstances where it was impossible for the Court to determine the quantum of costs on a party – party basis the Court made the order that costs be agreed or taxed.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 provide as follows:
r 1.05 Application
(1) It is intended that the practice and procedure of the Court in general federal law proceeding be governed principally by these Rules.
r. 22.02 Order for costs
…
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Division 22.3 – costs and disbursements
Application of Division 22.3
(1) This Division applies to costs payable, or to be taxed, under an Act, these Rules or an order of the Court, in a proceeding.
(2) Unless otherwise provided, these Rules do not regulate the fees to be charged by lawyers as between lawyer and client in relation to proceedings in the Court.
22.09 Costs and disbursements
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred.
The respondent in this matter provided no assistance to the Court regarding the quantum of costs payable on the costs application. The Court ordered that the applicant pay the respondents costs “on a party – party basis as and from 5 October 2021.” When costs are awarded on a party – party basis those costs form only part of the legal costs incurred. Rule 22.09 provides that “unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to (a) costs in accordance with Schedule 2; and (b) disbursements properly incurred.” The applicant in correspondence dated 21 October 2022 set out the costs the applicant was liable to pay in accordance with Schedule 2 of the Rules. That estimate of costs accords with Rule 22.09 (a) and (b) which I find applies. The matters remain in dispute regarding quantum.
The Court has a general discretion to depart from the fixed event – based scale of costs. The order made by the Court anticipated that the parties would reach agreement to save spending more money on litigation. That has proved not to be the case. Provision was made in the order for further assessment of costs (“taxed”) should the parties fail to reach agreement.
In those circumstances the matter is listed for hearing on 6 February 2023 for assessment of costs by the Court. In the event that the parties are able to reach agreement prior to that date the parties shall advise the Court the matter is resolved and the hearing date vacated. The costs of this application are reserved.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 18 January 2023
0