Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Uren & Ors (No.3)
[2017] FCCA 1371
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v UREN & ORS (No.3) | [2017] FCCA 1371 |
| 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) |
| First Respondent: | ALEXANDER UREN |
| Second Respondent: | MARYANN UREN |
| Third Respondent: | SANDRA UREN |
| File Number: | SYG 653 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | Determined on the papers |
| Date of Last Submission: | 9 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2017 |
ORDERS
The respondents pay the applicant’s costs fixed in the amount of $3,173.86.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 653 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| ALEXANDER UREN |
First Respondent
| MARYANN UREN |
Second Respondent
| SANDRA UREN |
Third Respondent
REASONS FOR JUDGMENT
The respondents 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 11 December 2015: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors [2015] FCCA 3280 (Uren).
The applicant now seeks an order that the respondents pay its costs of the proceedings fixed in the amount of $3,173.86.
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) (FCCA Act). For the reasons I explained in Commonwealth of Australia v Hevers & Anor (No.2) [2015] FCCA 2753 (Hevers) and Uren, the Court in these proceedings was exercising the power of the Civil and Administrative Tribunal of New South Wales (NCAT) 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 respondents submit that the appropriate order is that each party pay its own costs.
The first basis for this submission is that the Court’s jurisdiction is founded on that of NCAT, which is a non-costs jurisdiction. The respondents argue that in NCAT:
i)tenants do not require legal representation;
ii)tenants are able to represent themselves and frequently do represent themselves;
iii)it is a less formal atmosphere and the tribunal is comprised of lay members.
The respondents say that these matters mark a substantial difference between proceedings in NCAT and in this Court. The respondents also say that this was recognised when the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was made. They submitted that the explanatory statement circulated with that Instrument noted that residential tenants in Commonwealth tenancy disputes would have rights in the Court that are substantially equivalent to those they would be afforded if the dispute were heard in NCAT.
While I accept that the costs power of this Court marks a significant difference to proceedings in NCAT, I do not consider that that difference is a reason for not awarding costs to a successful party. Whatever be the reason for the costs regime in NCAT, this Court retains the power in s.79(2) of the FCCA Act to award costs unless specifically excluded. In the absence of exclusion I consider that the ordinary rule applies.
The respondents also rely on the “public interest nature of the matters”. Apart from the question concerning the constitutional validity of the jurisdiction of this Court in respect of Commonwealth tenancy disputes, there was no public interest nature in the proceedings. It was simply a dispute between a landlord and a tenant about the termination of a tenancy and the right to possession of land. The constitutional issue was decided by earlier proceedings (Hevers) and none of the arguments put forward by the respondents affected the conclusion that jurisdiction was properly conferred on this Court.
The respondents argue that these proceedings set a precedent for later proceedings that might be heard. This point was argued in light of the amendment to the Instrument that tenants in the Jervis Bay Territory and of the Sydney Harbour Federation Trust now fall within the Court’s jurisdiction in respect of Commonwealth tenancy disputes. However, that submission faces the same difficulty that the constitutional issues were effectively dealt with in Hevers. Otherwise, each matter will be determined on its own facts.
The third matter relied on was the personal circumstances of the respondents. This submission was made in written submissions filed on behalf of a number of the respondents in proceedings similar to these. Perhaps it was for that reason that there was nothing in the submissions that identified any particular circumstance relating to the respondents in these proceedings as being pertinent to the question of costs. Rather, the following general submission was made:
If costs are pursued it will cause extreme hardship and stress to many of the Respondents. Tenants live week to week and will need time to save money for such a big move.
In the absence of any evidence concerning the respondents, I give that submission no weight. In any event, the submission is addressed to the effect of compliance with a costs order. The submission does not address the questions of whether a costs order should be made and, if so, whether it should be set in a particular amount, and in what amount.
The fourth matter raised by the respondents is that the Commonwealth spared no expense in the proceedings. The submission was (without alteration):
[3]The Commonwealth has spared no expense throughout this entire process:
·it has used a full team of barristers from the first Court date after telling residents ‘they don’t need to do anything in relation to obtaining an order” and “they may be invited to a hearing.”
·it turned up to first hearing with substantial affidavit material.
·it expended substantial funds not always linked to legal fees but affecting the cases before the Court: eg it spent $10,000 on a helicopter over the premises without permission, nor asking to do inspection.
·It paid Mr Azar[1] to do an in depth report on the premises, including driving past our premises and taking photos without consent.
This is compared to the residents, who, with very limited funds, have engaged the services of a single barrister and solicitor working on minimum rates to represent all tenants (without such help adequate representation would be impossible).
[1] Simon Azar is a registered real estate valuer who gave evidence for the Commonwealth in the substantive proceedings.
None of this is relevant to the order for costs sought by the applicant. The applicant does not seek costs for a helicopter, or for the report of Mr Azar. The fact that the applicant retained two junior counsel, as well as a number of other lawyers to work on the proceedings generally, reflects the number of proceedings that were brought, and ultimately heard, at the same time. The costs sought are not inflated by that fact. The applicant does seek the costs of retaining counsel who specialises in constitutional matters. That retainer was appropriate given the issues raised and her fees were, relative to her skill and experience, very modest.
Finally, the early preparation of affidavit material is to be encouraged. It enabled the quick and efficient determination of the proceedings and meant that the respondents were aware from very early on in the proceedings of the case they had to meet.
The respondents also make the following submission:
Some of the Respondents tried to negotiate with the AGS[2] before the matter was heard in court. They were told there were no exceptions to the date they were to vacate. If some degree of consideration had been given to negotiating with long term tenants instead of a heavy-handed approach there may have been no need for litigation. Tenants had no option other than before the FCCA to have their say. The Commonwealth commenced action against the tenants before the date to vacate.
[2] Australian Government Solicitor.
There is nothing before the Court either to support the factual assertions in that submission or to link any of them to any of the respondents. In any event, the fact remains that the respondents could have negotiated with the applicant even after commencement of the proceedings. The respondents did not do so but, instead, chose to contest the proceeding to a final hearing and then to appeal when the proceedings were decided against them.
In the written submissions, the respondents then state:
Questions were raised regarding the Commonwealth Tenancy Dispute Instrument in parliament regarding the Human Rights. The parliamentary committee observed: ‘The committee therefore considers that the ability of the Federal Circuit Court to determine the date for tenants to vacate premises limits the right to an adequate standard of living. As set out above, the statement of compatibility does not sufficiently justify that limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Attorney-General as to:
whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective;
whether there is a rational connection between the limitation and that objective; and
whether the limitation is a reasonable and proportionate measure for the achievement of that objective.
Powers when executing orders made by the Court’
This submission is irrelevant to the question of costs. It is not clear how the Instrument referred to in the submission might be incompatible with the second respondents’ human rights and, even if it were, what domestic law embodies those rights and how it might affect the exercise of the power to award costs in contested proceedings.
Finally, the respondents say that they should have their legal costs reimbursed because, had the proceedings been in NCAT they would not have had to pay ongoing legal expenses. I do not accept the premise of that argument. The respondents were entitled to represent themselves in these proceedings in the same way they could have in NCAT. The fact that they chose to engage counsel does not distinguish this matter from the usual case so that they should not be ordered to pay costs of the successful applicant.
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)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;
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;
d)the costs sought include amounts in respect of orders for costs made against the respondents on 8 May 2015 and 5 June 2015; and
e)the costs sought also include an amount of costs incurred in respect of a notice to produce served by the respondents on 12 August 2015.
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.
I am also satisfied that the amount sought is a reasonable reflection of the additional costs incurred as a result of the manner in which the proceedings were conducted on behalf of the respondents.
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.
The notice to produce served by the respondents on 12 August 2015 sought production of documents by the applicant in almost identical terms to notices to produce issued earlier in the proceedings. Those earlier notices to produce had been complied with. The notice to produce was called on during proceedings on13 August 2015 and an application was made by the applicant to strike out the repetitive parts of the notice. That application was successful and the costs of the application were reserved. There is no reason why the applicant should not have its costs in connection with that successful application, indeed, that is what the Rules provide for: r. 21.04. The scale amount, including filing fee for the application in a case, is $2,473.
When the costs orders for $104.25 and $2,473 are added to the general amount of costs sought against the respondents, the amount of costs sought by the applicant comes to $3,173.86.
For those reasons, I will order that the respondents pay the applicant’s costs set in the amount of $3,173.86.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 June 2017
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