Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Morris (No.2)

[2017] FCCA 1367

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v MORRIS (No.2) [2017] FCCA 1367

Catchwords:
ADMINISTRATIVE LAW – Commonwealth Tenancy Dispute – costs order stayed pending appeal in the Federal Court of Australia.

PRACTICE AND PROCEDURE – Determination of costs – whether the successful party should be awarded costs – costs calculated by reference to Pt.1 of Sch.1 to the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.79(2)

Federal Circuit Court Rules 2001 (Cth), r.21.02(2)(a), Pt.1 of Sch.1

Residential Tenancies Act 2010 (NSW)

Cases cited:

Commonwealth of Australia v Hevers & Anor (No.2) [2015] FCCA 2753
Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development v Morris [2015] FCCA 3267
Scott (Trustee), in the matter of Price (Bankrupt) [2011] FCA 1478; (2011) 10 ABC (NS) 59

Applicant: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

Respondent: CAROL MORRIS

File Number: SYG 641 of 2015

Judgment of: Judge Smith

Hearing date: Determined on the papers

Date of Last Submission: 4 February 2016

Delivered at: Sydney

Delivered on: 23 June 2017

ORDERS

1. The respondent pay the applicant’s costs fixed in the amount of $700.86.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 641 of 2015

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

Applicant

And

CAROL MORRIS

Respondent

REASONS FOR JUDGMENT

1. The respondent resided on property owned by the applicant pursuant to a tenancy agreement but did not leave that property after being given a notice of termination of the agreement. The applicant brought proceedings seeking, amongst other things, vacant possession of the property. After a contested hearing, I made orders in the applicant’s favour on 21 December 2015: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development  v Morris [2015] FCCA 3267 (Morris).

2. The applicant now seeks an order that the respondent pay its costs and disbursements of the proceedings in a fixed amount. 

3. This Court has jurisdiction to award costs in all proceedings before it other than proceedings in respect of which any other Act provides that costs must not be awarded: s.79(2) Federal Circuit Court of Australia Act 1999 (Cth). For the reasons I explained in Commonwealth of Australia v Hevers & Anor (No.2) [2015] FCCA 2753 (Hevers) and Morris, the Court in these proceedings was exercising the power of the Civil and Administrative Tribunal of New South Wales under the Residential Tenancies Act 2010 (NSW) (RTA). Nothing in the RTA provides that costs must not be awarded.

4. The discretion to award costs is unfettered, but must be exercised judicially. The usual order is that costs will follow the event. Here, that means that the applicant would ordinarily be entitled to its costs.

5. The respondent has not made any submissions in respect of costs and I cannot see anything in the circumstances of this case that would justify anything other than the usual order.

6. The applicant has asked for an order for costs in a set amount. The Federal Circuit Court Rules 2001 (Cth) (Rules) expressly provide for such an order: r.21.02(2)(a). It is appropriate to make such an order in order to avoid expense and delay that might be brought about by an order that costs be taxed: Scott (Trustee), in the matter of Price (Bankrupt) [2011] FCA 1478; (2011) 10 ABC (NS) 59 at [31].

7. The amount of costs sought by the applicant is based on the following matters:

   a)the applicant does not seek any costs generally incurred in respect of the substantive issues in the proceedings;

   b)the costs sought are part of the overall costs incurred in respect of a number of similar proceedings that were heard at the same time; and

   c)the costs sought are in respect of argument concerning constitutional issues that had been determined in other proceedings and procedural matters that unnecessarily extended the proceedings and caused the applicant to expend additional costs.

8. I accept that these matters are relevant to the issue of costs and that, given the amount of costs sought and the time and costs that would be involved in taxation, it is appropriate to make an order for costs set in a particular amount.

9. I am also satisfied that the amount of $596.61 is a reasonable reflection of the additional costs incurred in the proceedings as a result of the manner in which the proceedings were conducted on behalf of the respondent.

10. On 8 May 2015 and 5 June 2015 I made orders that respondents in eight proceedings including these proceedings pay the applicant’s costs for the day. The scale amount for each day at the time of the hearings was $278. Together with an advocacy loading of 50%, the total for each day is $417. One eighth of the total amount for the 2 days is $104.25.

11. When the costs orders for $104.25 are added to the general amount of costs sought against the respondent, the amount of costs sought by the applicant comes to $700.86.

12. For those reasons, I will order that the respondent pay the applicant’s costs set in the amount of $700.86.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       23 June 2017