Boscolo v Acxiom Australia Pty Limited
[2015] NSWCATAD 78
•17 April 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Boscolo v Acxiom Australia Pty Limited [2015] NSWCATAD 78 Hearing dates: 8 September 2014 Decision date: 17 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: Costs calculation pursuant to section 60(4)(a) of the Civil and Administrative Tribunal Act 2013
Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Costs Parties: Karina Boscolo (Applicant)
Acxiom Australia Pty Limited (Respondent)Representation: Solicitors
PCC Lawyers (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 1410255
REASONS FOR DECISION
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The following are reasons for decision dealing with the calculation of the award of costs in proceedings, pursuant to sections 60(4) (a) of the Civil and Administrative Tribunal Act 2013.
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The history of the matter in short is that on 14th October 2013 Ms Karina Boscolo lodged a complaint alleging unlawful discrimination against her former employer Acxiom Australia Pty Limited at the Anti-Discrimination Board. The matter was not resolved by the ADB; it was referred to the NSW ADT (now NCAT). After a case conference, the complainant withdrew the matter in July 2014. The Respondent then sought the award of costs in the matter pursuant to section 60 of CATA. The Applicant, Ms Boscolo then sought her costs of responding to the Respondent’s costs application.
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The 2 costs applications were heard over 2 part days in September 2014. In February 2015, the Tribunal gave its decision. The Tribunal dismissed the Respondent’s application for costs and awarded costs in the costs proceedings to the Applicant.
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The Tribunal’s February 2015 decision set out the scope of the costs award as follows at paragraphs 113 and 114:
113. No costs assessments were put to the Tribunal. In accordance with section 60(4) of CATA, the Tribunal considers that the Applicant’s costs would include the costs of the Applicant’s solicitor’s costs for preparation of a response to the Respondent’s application for costs; their settlement by junior counsel and the two part days of hearing requiring representation by junior counsel.
114. The Tribunal directs that
i. The Applicant file and serve a calculation of costs in this regard within 14 days of the date of this decision; and
ii. The Respondent is to file and serve any response to this calculation within 14 days of its filing.
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The Applicant filed submissions as to the calculation of costs on 12th March 2015 and the Respondent on 26th March 2015.
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The Applicant’s submission sought costs in a total of $15,604.00, plus GST of $1550.40. The total is $17,164.00. The component parts include costs in relation to junior counsel rates, solicitor’s costs and paralegal costs.
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The Respondent’s submission set out that the amount should be assessed at $6740 plus GST of $674 – a total of $7414.00
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The basis for the Respondent’s submission that the calculation should be reduced was in short that:
It was unreasonable to include the Applicant’s paralegal costs;
The Tribunal had made no orders in relation to the Applicant’s claim for an award of costs personally against the Respondent’s legal representatives and that the calculation of hours spent by the Applicant’s solicitor and counsel on this issue should be reduced to reflect this;
There had been duplication of work between the Applicant’s solicitor and counsel; and
The hours claimed by the Applicant’s solicitor and counsel were excessive.
Relevant legislation
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Costs provisions section 60 CATA
Sub sections 60 (4) and (5) of CATA define the term "costs" and give the Tribunal power to determine by whom and to what extent costs are to be paid.
Sub sections 60 (4) and 60(5) are set out below.
60 (4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
60(5) In this section:
"costs" includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
Tribunal’s consideration of the Applicant’s costs calculation
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The Tribunal did not include paralegal costs in the scope of costs claimable. Accordingly the Tribunal has reduced the total amount by $1310 – being the costs attributable to the work of the Applicant’s paralegal.
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The Tribunal accepts the Respondent’s submission that the Applicant’s claimed costs should be reduced to reflect the fact that the Applicant’s argument relating to the Respondent’s legal representative was not subject to a finding by the Tribunal. The Tribunal understands that the Respondent refers to the Applicants submissions in relation to subsection 60(3) (f) – the failure of a party’s legal representative to act to give effect to the “Guiding Principle” as required by subsection 36(3) of CATA.
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The Applicant had submitted 7 bases, corresponding to sub sections 60(3) (a) to (g) of CATA as to why she should be awarded costs.
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The Tribunal reduces the Applicant’s claimed costs after subtraction of claimed paralegal costs by 1/7th.
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The Tribunal does not accept the Respondent’s argument that the amount of time claimed by the Applicant’s counsel and solicitor represented a duplication as there was no specific evidence of this offered.
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The Tribunal does not accept that the time claimed by the Applicant’s solicitor and counsel was excessive. There was no objective measure referred to by the Respondent to demonstrate this.
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The Tribunal’s calculation of costs is that the Applicant’s claim should be reduced by claimed paralegal costs of $1310. The time claimed by the Applicant’s solicitor and counsel, $14284, should be reduced by 1/7th- an amount of $2040. This renders an amount of $12244 plus GST of $1224.00.
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The Tribunal calculates the Applicant’s costs inclusive of GST at $13468.
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The Respondent is to provide payment to the Applicant of the amount of $13468 within 14 days of the date of this decision.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 17 April 2015
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