Clarke v Nursing and Midwifery Council Of New South Wales and Ors (No.4)

[2019] FCCA 3639

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE v NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES & ORS (No.4) [2019] FCCA 3639

Catchwords:
PRACTICE AND PROCEDURE – Application for gross sum costs order by third respondent – Amended Application as against it had been summarily dismissed as applicant had no reasonable prospect of successfully prosecuting the proceeding against it and the proceeding was otherwise frivolous, vexatious and an abuse of the process of the Court – amount sought by third respondent less than what would be obtained by an order for costs assessed in the regular course – gross sum costs order made by the Court as sought.

Legislation:

Competition and Consumer Act 2010 (Cth)

Cases cited:

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 2) [2019] FCCA 3035

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 3) [2019] FCCA 3159

Applicant: SHARMAIN DAISY CLARKE

First Respondent: NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES

Second Respondent: NURSING AND MIDWIFERY BOARD OF AUSTRALIA

Third Respondent: NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Fourth Respondent: VIOLET STOJKOVA

File Number: SYG 3310 of 2018

Judgment of: Judge Dowdy

Hearing date: 27 November 2019

Delivered at: Sydney

Delivered on: 27 November 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the Third Respondent: Ms P. Thew of Counsel

Solicitors for the Third Respondent: Moray & Agnew Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Pursuant to Rule 21.02(2)(a) of the Federal Circuit Court Rules 2001 (Cth), the Applicant is to pay the Third Respondent’s costs and disbursements of the proceeding in the gross sum of $28,000.

2. Pursuant to Rule 21.02(2)(d) of the Federal Circuit Court Rules 2001 (Cth), the Applicant is to pay the Third Respondent’s costs aforesaid within 30 days of today.

3. Certify that the retainer of Counsel by the Third Respondent in this proceeding was reasonable under Rule 21.15 of the Federal Circuit Court Rules 2001 (Cth).

4. That pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth), the Applicant have up to and including 16 January 2020 to apply for leave to appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3310 of 2018

SHARMAIN DAISY CLARKE

Applicant

And

NURSING AND MIDWIFERY COUNCIL OF NEW SOUTH WALES

First Respondent

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

Second Respondent

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION
Third Respondent

VIOLET STOJKOVA

Fourth Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

As Corrected

Third Respondent’s Application for Costs

1. This is the hearing of the Third Respondent’s application for costs which I have already ordered to be paid by the Applicant on 18 October 2019 and 25 October 2019 respectively under my judgments bearing medium neutral citation [2019] FCCA 3035 and [2019] FCCA 3159. The Third Respondent seeks costs in the gross sum amount of $28,000 and that such costs be ordered to be paid by the Applicant by a time certain.

2. The Third Respondent relies on the affidavit of Mr Ian David Denham sworn on 1 November 2019. Mr Denham is an experienced solicitor with over 20 years litigation experience and he has estimated the Third Respondent’s costs, up to and inclusive of today to be in the order of $58,285.94, being the amount payable by the Third Respondent as client to his firm.

3. Mr Denham has summarised in his affidavit the nature of the legal work carried out by his firm for the Third Respondent. Further, he deposes to the fact that his client is prepared to give a discount of more than 50 per cent and seeks only a gross sum amount of $28,000 and says, perhaps by way of understatement, that this amount is reasonable for the work done and performed by his firm.

4. The Third Respondent’s position, in my view, is moderate and commendable and I have no hesitation in accepting that the amount sought is reasonable and that it should be ordered to be paid by the Applicant to the Third Respondent. Further, it is entirely appropriate for me to certify that it was reasonable for the Third Respondent to employ Counsel in this case, being Ms Thew, whose presence and role in its conduct and resolution has been of considerable assistance to the Court.

5. At the hearing the Applicant advised the Court that she accepted that an amount must be ordered against her for costs but raised in response to the gross sum costs application two contentions, namely:

   a)that the costs should be limited to an amount of $10,000; and

   b)that in effect a gross sum costs order should not be made but rather an order should be made in conventional terms that costs should either be agreed or assessed.

6. I reject both contentions made by the Applicant. There seems to me to be every reason for this matter to come to an end and relations between the Applicant and the Third Respondent ought not continue by way of further argument about costs. 

7. The amount sought by the Third Respondent is eminently reasonable and in my view well below what would be obtained by the Third Respondent on taxation or assessment. With the Third Respondent being prepared to so reasonably moderate its costs to $28,000 there is no reason why the issue of costs as between these two parties should continue to abide a process of costs assessment.

8. Further, there is no evidence at all which would properly ground the restriction or limitation of the costs to be paid by the Applicant to the Third Respondent to the amount of $10,000. There has been no evidence provided by the Applicant which would make it coherent or rational for a Court to limit the costs to only $10,000.

A Further Matter

1. Finally, I have to unfortunately deal with this issue. At the hearing, I asked the Applicant initially whether she had any objections to the affidavit of Mr Denham sworn on 1 November 2019 and I was told by her that she had no objection. Later in the hearing, she asserted from the Bar Table that, in truth and in fact, she had never received that affidavit and that it had never been served on her. At that point, Ms Thew tendered an email from Ms Bainat, a solicitor at Moray & Agnew, of 4 November 2019 which had served, by way of attachment, Ms Thew’s Written Submissions on costs together with Mr Denham’s affidavit to both my Associate and to the Applicant, together with her email in response stating “Received today”. Regrettably the Applicant had told the Court a mistruth.

2. I reject the Applicant’s assertion that she had not, until today, seen the affidavit of Mr Denham upon which Ms Thew relies in support of the Third Respondent’s costs application. She received it by email on 4 November 2019 and acknowledged receipt to both the Third Respondent and the Court on 5 November 2019.

Conclusion 

1. Accordingly, I now make the orders as sought by the Third Respondent.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 12 December 2019

Corrections

• This Judgment has been varied by his Honour Judge Dowdy on 20 November 2020 under r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth) to amend Orders 1 and 2, replacing “Second Respondent” with “Third Respondent”.