Carney v Excelsia College (No 2)
[2025] FedCFamC2G 62
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carney v Excelsia College (No 2) [2025] FedCFamC2G 62
File number: SYG 256 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 January 2025 Catchwords: CONSUMER LAW –– Costs – Applications in a Proceeding – compliance with subpoenas – costs of the second respondent in the schedule amount to be paid – costs between the applicant and first respondent reserved. Legislation: Competition and Consumer Act 2010 (Cth) sch 2 s 18
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2 ss 67, 190(2)(a) – (e).
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submissions: 2 January 2025 Date of hearing: 4 December 2024 Place: Parramatta Counsel for the Applicant: Ms Bateman Solicitor for the First Respondent: Mr Kohn Counsel for the Second Respondent: Mr O’Connor ORDERS
SYG 256 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRANCIS LIAM CARNEY
Applicant
AND: EXCELSIA COLLEGE LTD (ACN 110 639 435)
First Respondent
SYDNEY CATHOLIC SCHOOLS LIMITED (ACN 619 137 343) TRADING AS
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.Costs in relation to the proceedings with respect to the Applications in a Proceeding concerning non-production of documents between the applicant and Excelsia are reserved.
2.The applicant is to pay Sydney Catholic Schools costs fixed in a lump sum of $20,726.57 within 28 days of the date of these orders.
3.No further subpoenas are to be issued on behalf of the applicant unless leave of the Court is granted. Any application for any further subpoena must be accompanied by an affidavit setting out the nature of the documents sought and to whom they are sought from. The affidavit will need to clearly indicate the forensic purpose for which the documents are sought.
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 D HUMPHREYS
INTRODUCTION
Mr Liam Carney (the applicant) has commenced proceedings in this Court under the Competition and Consumer Act 2010 (Cth) claiming that the respondent, Excelsia College, engaged in misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law such as to deprive the applicant of becoming an accredited teacher.
The applicant seeks damages in the sum of $78,612.00 plus interest and costs, comprising fees paid by the applicant to the respondent of $4,875.00, plus loss of earnings of $73,737.00 representing one year of earnings at the relevant Award for a primary teacher at Band 1.
The following is taken from submissions on behalf of the respondent filed on 1 November 2024 and is a fair summary of the proceedings background.
In early 2022, the applicant enrolled in a course with the respondent, being a tertiary education provider, known as Master of Teaching (Primary). The course comprised a practical and theoretical component.
On 28 March 2022, the applicant commenced his practicum at St Pius Catholic Primary School, Enmore. That practicum was due to run until 9 May 2022. On 7 April 2022, a meeting was held between the applicant and his supervising teacher, Mr Chris Gawidziel, in order to give the applicant feedback concerning his progress within the practicum.
It is alleged that feedback indicated a number of areas where improvement was needed. It is alleged that the applicant did not take kindly to the feedback and left school grounds. It is further alleged that the applicant’s poor conduct during the feedback meeting, and unsatisfactory progress prior thereto, led to the respondent terminating the applicant’s practicum with the school, as he would not be in a position to pass the practicum that semester.
It is alleged, the practical effect of this decision was that the applicant could have commenced a fresh practicum at another school during the following semester and qualified a few months later. However, the applicant did not seek to complete his practicum at another school and was unable as a result, to successfully complete the course. Instead, he sought a refund of the course fees from 11 April 2022 and withdrew from the course on 27 April 2022.
The Court notes that the applicant appears to be self-represented, although at times Counsel has appeared on his behalf and drafted some documents. This varying representation complicates the proceedings. For example, the applicant appears to make submissions in his affidavit filed 3 January in addition to the written submissions of his Counsel.
SUBMISSIONS ON COSTS FROM THE APPLICANT
The Court has been provided with an affidavit of Mr Carney sworn 2 January 2025 together with written submissions from his Counsel. In his affidavit, Mr Carney asserts that he was aware from the material provided in response to the first subpoenas that not all material required had been produced. He asserts that subsequent disclosures were made in response to the second subpoenas and that the misrepresentations of both Sydney Catholic Schools (“SCS”) and Excelsia delayed his access to critical evidence.
The difficulty with this assertion is that there appears to be knowledge by Mr Carney as to the precise identity of documents that he sought which were not produced. If this was the case, the proper course would have been for Mr Carney, noting his self-representation, to write to the solicitors for Excelsia and SCS identifying the documents he claimed were not produced and seeking their production. This did not take place, rather a second almost identical subpoena was issued.
Mr Carney also takes issue with documents produced to the Court which were subject to a claim of legal professional privilege. He claims that there is a usual practice to provide a privilege log which contains enough information for the opposing party to assess the validity of the privilege claim without revealing the content of the privileged documents. He claims that no privilege log or schedule of documents was included or referred to in the documents produced in response to the subpoenas. He claims that as a result of there being no privilege log, Excelsia College remains non-compliant with the subpoenas issued.
In the penultimate paragraphs of his Affidavit, Mr Carney submits that any costs decision be delayed until the determination of the substantive proceedings.
In her written submissions, Counsel for Mr Carney claims that both the first and second respondents did not fully comply with their obligations pursuant to the subpoenas served on them and that as a result it was necessary for the applicant to file the Applications in a Proceeding to enforce compliance. This includes documents that were subject to a claim of legal professional privilege.
It was submitted that a claim in relation to legal privilege is not a basis for failing to produce documents, rather they should have been produced and a claim of legal privilege made. It is submitted that no costs order should be made as against Excelsia or in the alternative, costs should be reserved until the determination of the substantive proceedings.
In relation to the second respondent, SCS, it is submitted that there is no basis for the award of indemnity costs as claimed by SCS. It is submitted that as a self-represented applicant, Mr Carney should not be expected to run the litigation to the same standard as a legal practitioner. He may not have been aware of the need to join SCS as a second respondent.
It is further submitted that Mr Carney’s applications were not entirely unmeritorious, based upon documents known to exist but not produced. It was thus not unreasonable for the applicant to seek an arrest warrant. However, having attended the Court and being advised that the Court would not issue arrest warrants, this prompted the second Application in a Proceeding. Accordingly, no costs order should be made in favour of SCS.
In the alternative, if a costs order is made it should be in the sum of $4,197.91, being the fee under Item 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), being the allowed fee for responding to the application in a proceeding, in reality there being only one application. Counsel also incorrectly makes reference to s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”), which applies to Family law proceedings not General Federal Law proceedings.
COSTS IN RELATION TO SUBPOENAS ADDRESSED TO SYDNEY CATHOLIC SCHOOLS AND MR PETER TURNER
SCS are not a party to the substantive proceedings before the Court. They were a respondent to proceedings the applicant commenced in the Fair Work Commission. Given the nature of the Applications in a Proceeding filed by the applicant, the Court granted leave, pursuant to an Application in a Proceeding filed on 28 October 2024 by SCS, for SCS to be joined as a party to the proceedings.
SCS rely upon two Affidavits of Louise Massey, solicitor, sworn 13 November and 18 December 2024.
On 26 March 2024, the applicant filed a subpoena (first subpoena) addressed to SCS. On 15 April 24, SCS produced documents in compliance with this subpoena.
On 23 May 2024, the applicant filed a further subpoena to produce, this time addressed to Mr Peter Turner, Executive Director of SCS (second subpoena). On 5 June 2024, SCS produced documents in compliance with the second subpoena. It is claimed the scope of the second subpoena was identical to that of the first subpoena.
On 8 August 2024, the applicant filed a further subpoena to produce, again addressed to Mr Turner (third subpoena). On 16 August 2024, SCS produced documents to the Court in compliance with the third subpoena. Again, it is claimed the scope of the third subpoena was similar to that of the first and second subpoenas. It is claimed that the documents produced in relation to the third subpoena were identical to those produced in response to the first and second subpoenas.
SCS and Mr Turner deny that they have failed to comply with the subpoenas and rely upon the evidence of Ms Massey as set out in her Affidavit of 13 November. In any event, she attaches documents said not to have been provided that the applicant claims were covered in the subpoenas he issued.
On 28 August 2024, the applicant filed an application in a proceeding (first application) seeking various forms of relief against SCS and Mr Turner, including that the Court issue a warrant for the arrest of Mr Turner for allegedly failing to comply with a subpoena to produce. It is claimed the first application was brought without notice to SCS or Mr Turner, including any correspondence from the applicant alleging non-compliance.
On 8 October 2024, the applicant filed a second Application in a Proceeding, withdrawing the requested order that the Court issue arrest warrants for Mr Peter McKeon (CEO Excelsia College) and Mr Turner but requesting that Mr Turner appear in person at a scheduled hearing on 15 November 2024. This followed a Directions Hearing held on 4 October 2024 where the Court indicated it would not be prepared, based on the material before it, to issue arrest warrants for Mr Turner and Mr McKeon.
On 15 November 2024, the Court dismissed the two Applications in a Proceeding filed by the applicant and made orders in relation to any costs being sought by the respondent and SCS.
SCS claimed the applicant’s failure to join SCS to the first and second applications, required SCS to incur the costs of preparing and filing the SCS application to be joined as a party to the proceedings. SCS submit the applicant’s conduct constitutes a significant departure from the overarching purpose requirements under s 67 of the Act. The Court notes that s 67 of the Act refers to family law proceedings and the more relevant section of the Act is s 190 which contains similar exhortations for the Court to dispose of matters in an efficient and timely manner with costs that are proportional to the importance and complexity of the matters in dispute (s 190(2)(a) – (e)).
In her Affidavit of 18 December 2024, Ms Massey sets out a schedule of costs incurred by SCS in response to the applications in a proceeding at $27,316.40 (excluding GST), including disbursements totalling $1,175.00, being Counsel’s fees of $9,900.00 and a Court filing fee of $1,175.00. The Court accepts these figures as accurately representing the commercial and reasonable costs incurred by SCS.
In submissions, SCS seek this amount be paid by the applicant. In the alternate, SCS seeks a lump sum costs order calculated pursuant to Schedule 2 of the Rules.
That claim includes three items claimed under item 2 of initiating or opposing an application, being the first and second applications and the SCS application at $4,197.91 per application or $12,593.73 in total. There is a further claim of a daily hearing fee of $1,255.75 for attending the in-person hearing at Parramatta on 15 November 2024 plus an advocacy loading being 50% of the daily hearing fee mention in Item 9 of $627.88 plus disbursements. On this basis, SCS seek a lump sum payment under Schedule 2 of $25,552.36.
In the Court’s view, costs should be calculated in accordance with Schedule 2, this being an amount agreed upon by the Court as representing a reasonable amount of costs that are payable in matters that come before the Court.
Whilst the Court accepts that SCS were required to respond to two applications by the applicant, the second was a more limited variation of the first application and accordingly only one fee should be payable. The Court accepts that the application in a case made by SCS is separate and apart from the Applications filed by the applicant and attracts a separate fee. Given that Counsel was briefed, the Court is not satisfied that the advocacy loading should be paid. The disbursements being Counsel’s fees in the Court filing fee should be payable.
Taking the above into account, the Court is satisfied, that should costs of SCS be paid by the applicant, they should be fixed in accordance with Schedule 2 of the Rules in the lump sum of $20,726.57. Any costs order should be paid within 28 days of any order by the Court.
COSTS IN RELATION TO SUBPOENAS ADDRESSED TO EXCELSIA AND MR MCKEON
On behalf of Excelsia, it was submitted that the applicant chose to file the applications, which amongst other things, sought the arrest of Mr McKeon, without first giving any notice of having any complaint about the subpoena production.
It was submitted the ongoing attempt by the applicant to continue the applications after documents were produced on 17 September 2024 was vexatious, frivolous, productive time wasting and a needless escalation of costs.
In relation to the 16 pages of documents over which there was an issue of legal professional privilege, Excelsia claims it was content to produce the documents but did not wish to use the SCS’s claim for privilege which has now been upheld. In these circumstances, Excelsia should not be penalised for being caught up in a dispute between the applicant and SCS.
Accordingly, Excelsia seeks the costs of having to respond to the applications, including Court attendances and submissions which would not have been necessary but for the inappropriate and capricious steps the applicant took. The Court notes that no exact amounts are specified in relation to the costs of Excelsia.
CONSIDERATION
The actions of the applicant in seeking arrest warrants as set out in the first application in a case can best be categorised as unwarranted, grossly excessive and inappropriate. The appropriate course for the applicant, given his apparent extensive knowledge of the material held by both Excelsia and SCS would have been to write to the solicitors for those parties setting out documents it was claimed the parties were in possession of but had not been produced.
In the Court’s view, the better course in relation to costs as between the applicant and Excelsia, is that they be reserved pending finalisation of the substantive litigation.
SCS is in a different position as to that of Excelsia. It is not a party to the substantive proceedings. Its participation in the proceedings was only made necessary by the issuance of the Application in a Proceeding seeking the inappropriate orders that have been set out. Given the gravity of the orders sought, it is perhaps not unsurprising that SCS would have taken the action they did, including the briefing of Counsel. As SCS is not a party to the substantive proceedings, costs incurred in responding to the applications in the case should be payable at this point of time, rather than at the conclusion of the substantive proceedings.
As set out above, the Court does not consider that the claim by SCS for what amounts to indemnity costs should be payable. For the reasons set out above, the Court considers that the amount calculated in accordance with Schedule 2 of the Rules is the appropriate amount.
The Court is also concerned, given the history of this matter to date, that it will need to exert a greater degree of control over the conduct of the proceedings than otherwise required, had Mr Carney been consistently represented by a legal practitioner. The Court is concerned that the Courts processes, including those relating to the issuance of subpoenas, have the potential to be used inappropriately.
Accordingly, orders will be made that no further subpoenas are to be issued by the applicant unless leave of the Court is granted. Any application to the Court should be accompanied by an affidavit, setting out the nature of the documents sought and to whom they are sought from. The affidavit should also clearly indicate the forensic purpose for which the documents are sought. Leave will only be granted where a very clear case can be made that the documents are reasonably sought and have a clear forensic purpose.
DISPOSITION
The orders of the Court are as follows:
(1)Costs in relation to the proceedings with respect to the applications in the case concerning non-production of documents between applicant and Excelsia are reserved.
(2)The applicant is to pay SCS costs fixed in a lump sum of $20,726.57 within 28 days of the date of these orders.
(3)No further subpoenas are to be issued on behalf of the applicant unless leave of the Court is granted. Any application for any further subpoena must be accompanied by an affidavit setting out the nature of the documents sought and to whom they are sought from. The affidavit will need to clearly indicate the forensic purpose for which the documents are sought.
The Court will also consider any further orders that may be necessary for the matter to be set down for trial as soon as possible.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 January 2025
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