Commonwealth of Australia (As Represented By the Department of Infrastructure and Regional Development) v Rickwood (No.2)
[2017] FCCA 1387
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v RICKWOOD (No.2) | [2017] FCCA 1387 |
| Catchwords: 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 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| Respondent: | MARK RICKWOOD |
| File Number: | SYG 1824 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | Determined on the papers |
| Date of Last Submission: | 27 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2017 |
ORDERS
The respondent pay the applicant’s costs fixed in the amount of $6,868.04.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1824 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| MARK RICKWOOD |
Respondent
REASONS FOR JUDGMENT
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 v Rickwood [2015] FCCA 3412 (Rickwood).
The applicant now seeks an order that the respondent pay its costs and disbursements of the proceedings in a fixed amount.
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 Rickwood, 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.
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.
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.
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].
The amount of costs sought by the applicant is based on the following matters:
a)this was one of 13 proceedings between the applicant and tenants or licensees of property owned by the Commonwealth that involved similar issues;
b)the 13 proceedings involved similar preparation and were heard at the same time on 18 and 19 November 2015;
c)the scale amounts set out in Part 1 of Schedule 1 to the Rules for the work undertaken in respect of these proceedings are claimed and, where that work was undertaken in respect of a number of proceedings, a proportion of the costs for that work is claimed in respect of the respondents in each proceeding (that is, the total amount divided by the number of proceedings);
d)calculated in the way set out in [7](c) above, the amount of costs claimed in respect of these proceedings amounts to $4,396.96;
e)disbursements of $2,271.08 in total are claimed including counsel fees in respect of constitutional arguments, transcripts, court fees, service, printing and searches. This amount is calculated in the same way as the costs in [7](c) above; and
f)costs of $2,600 incurred on the question of costs, again divided equally amongst the respondents in each proceeding making $200 each.
Given the similarity of the issues in each of the proceedings the amount of costs sought and the time and costs involved in the taxation of costs, I accept that it is appropriate to make an order for costs in a set amount and to calculate the relevant amount by dividing the total costs and disbursements by the relevant number of proceedings and to make adjustments in respect of any proceedings in which additional costs were incurred.
The separate items of work undertaken, and the scale amounts for those items were identified in the applicant’s written submissions on costs. I accept both that the work was undertaken and that the amounts claimed were referable to the correct item in Part 1 of Schedule 1 to the Rules.
I also accept on the evidence that the disbursements claimed by the applicant were reasonably incurred in connection with the proceedings and that it is appropriate to order an amount of $2,600 overall in respect of the question of costs and so $200 in respect of this respondent.
For those reasons, I will order that the respondent pay the applicant’s costs set in the amount of $6,868.04.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 June 2017
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