Cugura v Frankston City Council (No.3)
[2012] FMCA 614
•16 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CUGURA v FRANKSTON CITY COUNCIL (No.3) | [2012] FMCA 614 |
| INDUSTRIAL LAW – General protections court application – substantive application dismissed – costs ordered – submissions of parties on calculation of costs in accordance with Schedule 1A of the FMC Rules. |
| Fair Work Act 2009 (Cth) s.570 Federal Magistrates Court Rules 2001 (Cth) Sch.1 |
| Cugura v Frankston City Council (No.1) [2012] FMCA 340 Cugura v Frankston City Council (No.2) [2012] FMCA 530 Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 |
| Applicant: | LUDWIG CUGURA |
| Respondent: | FRANKSTON CITY COUNCIL |
| File Number: | MLG 1724 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | On the papers |
| Date of Last Submission: | 4 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 16 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Maule |
| Solicitors for the Applicant: | AED Legal Centre |
| Counsel for the Respondent: | Ms M. Dawson |
| Solicitors for the Respondent: | Macpherson & Kelley Lawyers |
ORDERS
The issue of the respondent’s costs under Schedule 1 of the Federal Magistrates Court Rules 2001 (“the Rules”) be listed for hearing on a date to be fixed.
Order (1) be stayed pending the outcome of the appeal filed by Ludwig Cugura on 10 July 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1724 of 2010
| LUDWIG CUGURA |
Applicant
And
| FRANKSTON CITY COUNCIL |
Respondent
REASONS FOR JUDGMENT
These reasons for decision concern the question of costs arising from proceedings between Ludwig Cugura (“the applicant”) and Frankston City Council (“the respondent”).
The background to these proceedings are set out in Cugura v Frankston City Council (No.1) [2012] FMCA 340 and Cugura v Frankston City Council (No.2) [2012] FMCA 530. These reasons for decision should be read in conjunction with those reasons. For the reasons set out in the last mentioned decision on 20 June 2012,[1] the Court made the following orders:
“THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs calculated in accordance with Schedule 1 of the Federal Magistrates Rules 2001.
2.The respondent file and serve within 7 days any submissions (but no more than 2 pages in length) in relation to the calculation of costs in accordance with Order 1.
3.The applicant file and serve 7 days thereafter any submissions in reply (but no more than 2 pages in length) to those in order 2.
AND THE COURT NOTES:
A.The parties submissions will be considered on the papers unless requested otherwise in submissions.
B.Any submission filed in accordance with orders 2 and 3 should be emailed in word format to associate.fmo’[email protected].”
[1] see inter alia paras [10]-[44] in Cugura v Frankston City Council (No.2) [2012] FMCA 530
Respondent’s submissions
On 27 June 2012 the respondent filed the following submissions:
“1.This submission is made in accordance with the decision of his Honour Federal Magistrate O’Sullivan in the matter of Cugura v Frankston City Council No. 2 [2012] 3 FMCA 340 at paragraph [59].
2.The Respondent has calculated and seeks its costs in accordance with Schedule 1 of the Rules as follows:
No Work Performed Detail General Federal Law Amount 1. Stage 1: Initiating or opposing application up to completion of first court day · Lump Sum
Directions Hearing - 9 June 2011
· Daily hearing fee (short mention)
· Advocacy loading
$2,593.00
$264.00
$132.00
2. Stage 1A: Initiating or opposing application which includes interim orders · Lump sum
Hearing - 20 October 2011
· Daily hearing fee (half day)
(note no advocacy loading claimed as counsel disbursement claimed)
$3,244.00
$971.00
3. Stage 1A: Initiating or opposing application which includes interim orders · Lump sum
Hearing (Objection to Subpoena) -
29 February 2012· Daily hearing fee (half day)
(note no advocacy loading claimed as counsel disbursement claimed)
$3,244.00
$971.00
4. Stage 1A: Initiating or opposing application which includes interim orders Costs application filed on 8 May 2012
· Lump sum
$3,244.00
5. Stage 4: Dispute resolution litigation intervention Mediation - 24 August 2011
· Lump sum
$2,720.00
6. Stage 5: Preparation for final hearing
Preparation for final hearing on:
· 5 and 6 March 2012
· 7 and 8 March 2012
$8,761.00
$3,686.00
7. Final hearing Daily hearing fee:
· 5 March 2012
· 6 March 2012
· 7 March 2012
· 8 March 2012
(note no advocacy loading claimed as counsel disbursement claimed)
$1,942.00
$1,942.00
$1,942.00
$1,942.008. Stage 6: Final hearing costs for solicitor Hearing - 24 April 2012
· Attendance
· Daily hearing fee (short mention)
$264.00
$264.00
9. Stage 6: Final hearing costs for solicitor Hearing - 20 June 2012
· Attendance
· Daily hearing fee (short mention)
$264.00
$264.00
Subtotal $38,654.00 Disbursements reasonably incurred (all amounts exclusive of GST)
Type Detail Amount 10. Counsel fees Simone Bingham
Fee slip # 220311 - 21.2.2011· taking instructions
· settling application and affidavit
· reviewing filed material
· drawing outline of submissions
· settling outline of submissions
· settling list of authorities
· advising in conference
(14.5 hours)
$3,954.55 11. Counsel Fees Simone Bingham
Fee Slip # 222427 - 25.7.2011· settling Response
· reviewing applicant's materials
· conducting research
· advise in conference
· reviewing client's material
· drawing and settling contentions of fact and law
$6,977.27 12. Counsel Fees Simone Bingham
Fee slip # 223101 - 6.9.2011· preparing and settling advice
· advise in conference
· attendance at mediation
$4,863.64 13. Counsel Fees Simone Bingham
Fee slip # 223753 - 21.10.2011· reviewing materials
· settling first draft affidavits
· advice
· preparation for directions hearing
· appearance at directions hearing
$8,977.27 14. Counsel Fees Simone Bingham
Fee Slip # 224755 - 22.12.2011
· settling affidavit of documents
· settling correspondence
$477.27 15. Counsel Fees Simone Bingham
Fee slip # 225390 - 28.2.2012
· reviewing Applicant's material and consider objections
· drawing submissions
· advice to instructor
· proofing witnesses for trial
$12,136.36 16. Counsel Fees Simone Bingham
Fee slip # 225586 - 13.3.2012
· preparing for trial
· perusing various materials
· attendance at Federal Magistrates' Court for Objection to Subpoena hearing
· advice to instructor and client
· proofing witnesses
· further trial preparation
· appearance at trial (4 days)
$26,909.09 17. Counsel Fees Simone Bingham
Fee slip # 226685 - 29.5.2012
· settling correspondence
· advice to instructor
· researching costs and costs against practitioners
· drawing and settling submissions on costs
· reviewing submissions of Respondent
$5,250.00 18. Photocopying 61 pages (black and white) - 7.10.2011
[charged at $0.20 per page]
$12.20 19. Photocopying 302 pages (black and white) - 7.10.2011
[charged at $0.20 per page]
$60.40 20. Photocopying 2,470 pages (black and white) - 14.10.2011
[charged at $0.20 per page]
$494.00 21. Filing Fees Federal Magistrates' Court
· filing fee for submissions 17.5.2011
$254.00 22. Filing Fees Federal Magistrates' Court
· filing fee for submissions 17.10.2011
$254.00
23. Filing Fees Federal Magistrates' Court
· filing fee for submissions 27.06.2012
$254.00
24. Parking fees Car parking expenses for attendance at conference with Counsel on 21.7.2011
$72.73 25. Parking fees Car parking expenses for attendance at mediation on 24.8.2011 $74.18 26. Parking fees Car parking expenses for attendance at Federal Magistrates' Court to file documents 14.10.2011 $55.64 27. Parking fees Car parking expenses for attendances at:
· Federal Magistrates' Court subpoena objection hearing on 29.2.2012
· Federal Magistrates' Court to inspect subpoenaed documents on 1.3.2012
Conference with Counsel in chambers on 2.3.2012
$145.45 28. Parking fees Car parking expenses for attendances at Federal Magistrates Court final hearing on 5, 6, 7 and 8 March 2012 $65.45 29. Parking fees Car parking expenses for attending Federal Magistrates' Court hearing on 24.4.2012 $58.18 30. Courier costs Courier documents 29.3.2011 $14.00 31. Courier costs Courier documents 25.7.2011 $35.55 32. Process fees Process server fees
· Service of:
- Subpoena;
- brochure titled "Information for Persons served with a subpoena or copy of a subpoena";
- $25.00 conduct money
Upon Dr Cheng-Ji Gu on 13 February 2012
$170.40
$25.00
33. Transcript costs Fee to Auscript Australasia for copy Federal Magistrates' Court transcript from 5 March 2012
Full day hearing before Federal Magistrate O'Sullivan
Proceeding: MLG1724/2010$850.61 34. Transcript costs Fee to Auscript Australasia for copy Federal Magistrates' Court transcript from 6 March 2012
Full day hearing before Federal Magistrate O'Sullivan
Proceeding: MLG1724/2010$1,323.64 35. Transcript costs Fee to Auscript Australasia for copy Federal Magistrates' Court transcript from 7 March 2012
Full day hearing before Federal Magistrate O'Sullivan
Proceeding: MLG1724/2010$1,895.58 36. Transcript costs Fee to Auscript Australasia for copy Federal Magistrates' Court transcript from 8 March 2012
Full day hearing before Federal Magistrate O'Sullivan
Proceeding: MLG1724/2010$1,262.34 Subtotal $76,922.80 TOTAL $115,576.80
Applicant’s submissions
On 4 July 2012 the applicant filed the following submissions:
“1.This submission is made in accordance with the decision of His Honour Federal Magistrate O’Sullivan in the matter of Cugura v Frankston City Council (No. 2) [2012] FMCA 530 (“the Decision”) at paragraph 59.
2.Schedule 1 of the Federal Magistrates’ Court Rules is an event based costs scale and, at paragraph 58 of the Decision, His Honour was satisfied that the Applicant should pay the Respondent’s costs according to that scale.
3.The Respondent has attempted to claim indemnity costs contrary to paragraph 56 of the Decision.
4.The applicant objects as follows to the items claimed by the Respondent in its submission dated 27 June 2012:
Respondent’s Item No.
Objections
Amount Applicable
1.
(a) The schedule is an events based costs scale and the item entitled ‘Stage 1’ includes all work up to the completion of the first court day. If in the course of the litigation other Stage fees become applicable, they must be claimed separately, and are determined to be applicable as hereinafter set out. Therefore, for example, separate attendances for a directions hearing or Mediation are charged in accordance with the appropriate stage fee or daily hearing fee.
Therefore the Stage 1 claim can be made only once and is allowed once at $2,593 and the applicable daily hearing fee is allowed in item 7 hereof.
(b) The fee for the Directions Hearing on 9 June 2011 is $264.
$2,593
$2642.
No lump sum is applicable. See item 1 above.
The court attendance on 20 October 2011 was a Directions Hearing or Mention and the short mention hearing fee is applicable.
$264
3.
Costs for the Hearing of the Objection to Subpoena are improperly claimed, as they were sought at the conclusion of that hearing on 29 February 2012 and not allowed by Registrar Caporale. They therefore cannot be claimed again.
Nil
4.
No fee is applicable for the Submission. This is not an event under the Schedule.
Nil
5.
Applicable.
$2,720
6.
Applicable.
$8,761
$3,6867.
Applicable. (4 x $1,942)
$7,768
8.
Only the daily hearing fee (short mention) is applicable.
$264
9.
As for item 8.
$264
Subtotal
$26,584
Disbursements
10.
Not applicable.
(a) Counsel’s fees are covered by the full day hearing fee. See item 7 above.
(b) This fee slip predates the issue of these proceedings and probably relates to work under the first application by the Applicant, which was dismissed on procedural grounds with no order as to costs.Nil
11.
As for item 10 (a) above.
Nil
12.
As for item 10 (a) above.
Nil
13.
As for item 10 (a) above.
Nil
14.
(a) As for item 10 (a) above.
(b) No affidavit of documents was served by the Respondent.Nil
15.
(a) As for item 10 (a) above.
(b) See item 3 above.Nil
16.
(a) As for item 10 (a) above.
(b) See item 3 above.Nil
17.
As for item 10 (a) above.
Nil
18.
Applicable.
$12.20
19.
Applicable (see item 18 above).
$60.64
20.
Applicable (see item 18 above).
$494
21.
In Industrial Law Matters, the only filing fee payable to the Court is the Applicant’s initial filing fee. Therefore this item is not applicable.
Nil
22.
As for item 21 above.
Nil
23.
As for item 21 above.
Nil
24.
Not a reasonably incurred disbursement.
Nil
25.
As for item 24 above.
Nil
26.
As for item 24 above.
Nil
27.
As for item 24 above.
Nil
28.
As for item 24 above.
Nil
29.
As for item 24 above.
Nil
30.
As for item 24 above.
Nil
31.
As for item 24 above.
Nil
32.
The charge for service of the documents within a 20 kilometre radius of the Melbourne CBD is excessive. The Applicant says $100 is applicable.
$100
33.
The Applicant went through the hearing and prepared submissions without the luxury of a daily transcript. Therefore this disbursement has not been reasonably incurred.
Nil
34.
As for item 33 above.
Nil
35.
As for item 33 above.
Nil
36.
As for item 33 above.
Nil
Subtotal for Disbursements
$666.84
Subtotal for items other than Disbursements
$26,584.00
TOTAL
$27,250.84
5.The parties are clearly widely apart on the question of costs applicable under Schedule 1 and on how that Schedule is to be applied.
6.As things stand, it is submitted that it would not be appropriate to make a formal order on the amount of costs.
7.Accordingly, it is submitted that the matter should be referred back to the parties’ Solicitors to confer and, failing agreement, to have the costs taxed by a Registrar of the Court.”
Consideration
As set out in Cugura v Frankston City Council (No.2) [2012] FMCA 530 at paragraphs [45] to [59] the Rules provide a fixed event based scale for proceedings suitable for this Court. Before quantifying the respondent’s costs in accordance with Schedule 1 of the Rules the Court invited submissions from the parties on the nature of those costs.
As is clear from the applicant’s position it was submitted the parties should go to the expense of the respondent’s costs being taxed by a Registrar. However there is a fundamental difficulty with that course of action.
In Cugura v Frankston City Council (No.2) [2012] FMCA 530 at [57] the Court referred to the decision of Lucev FM in Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 (Pierson’s).[2] As His Honour’s decision in Pierson’s makes clear any expectation that an order for costs under Schedule 1 of the Rules be taxed if not agreed is based on a misconception as to the basis for awarding costs and the usual order as to costs in this Court.[3]
[2] see para [43] in Pierson’s
[3] see para [49] in Pierson’s
As set out in Pierson’s there is no provision for taxation of costs where costs are calculated in accordance with Schedule 1.
For reasons that will become clear presently I do not intend at this stage to consider the remaining dispute between the parties on the question of the quantification of the respondent’s costs in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001 (“the Rules”).
After the applicant filed the submissions referred to above an appeal from the orders of 20 June 2012 was filed on his behalf in the Victorian Registry of the Federal Court of Australia on 10 July 2012. This appeal was not foreshadowed in the submissions filed on 4 July 2012. Moreover despite the directions made by the Court, solicitors for the respondent continued to send correspondence after the close of submissions in relation to the issue of costs.[4]
[4] see letters dated 3 July 2012 and 13 July 2012 from M & K Lawyers. This precipitated further correspondence from the solicitors for the applicant.
Given the intervention of the events referred to above and the disparate position of the parties in submissions dictate in my view that the appropriate orders are that the issue of the respondent’s costs under Schedule 1 of the Rules be listed for hearing on a date to be fixed for any further submissions and that order be stayed pending the outcome of the appeal filed on 10 July 2012 by the applicant.
Conclusion
For the reasons set out above there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 16 July 2012
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