Dalglish v MDRN Pty Ltd (No.3)
[2015] FCCA 1585
•12 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALGLISH v MDRN PTY LTD (No.3) | [2015] FCCA 1585 |
| Catchwords: COSTS – The costs order was varied because it did not reflect the intention of the Court – the application to vary the interim costs orders to enable the costs orders to be referred to taxation was not successful. |
| Legislation: Fair Work Act 2009 (Cth), s.570. Federal Circuit Court Rules 2001, rr.16.05, 21.02, 21.10. Federal Court Rules 2011, pt. 40. |
| Dalglish v MDRN Pty Ltd (No.2) (2014) 287 FLR 227 Jeray v Blue Mountains City Council [2013] FCCA 297 |
| Applicant: | SIMIENNA ESTHER DALGLISH |
| Respondent: | MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS |
| File Number: | BRG 264 of 2012 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 21 April 2015 |
| Date of Last Submission: | 10 June 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 12 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Milner of Milner Lawyers |
| Counsel for the Respondent: | Mr Merrell |
| Solicitors for the Respondent: | McCarthy Durie Lawyers |
ORDERS
That the costs orders of 29 August 2014 be discharged.
That the applicant pay 100% of the respondent’s costs in the proceeding of which the applicant pay one half of the respondent’s costs in respect of the applicant’s Common Law claims and the remaining one half of the respondent’s costs in respect of the applicant’s claims under the Fair Work Act 2009.
That otherwise, the application in a case filed 25 March 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 264 of 2012
| SIMIENNA ESTHER DALGLISH |
Applicant
And
| MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 June 2014, I delivered judgment in proceedings Dalglish v MDRN Pty Ltd (No.2) (2014) 287 FLR 227. This decision relates to the further issue in relation to the costs of those proceedings and should be read in conjunction with the reasons published in the Federal Law Report.
The Material
The applicant in the substantive proceedings, Ms Simienna Esther Dalglish (“the applicant”), relied on the following material:
a)Submissions of the applicant as to the application by the respondent as to costs filed 10 June 2015.
The respondent in the substantive proceedings, MDRN Pty Ltd trading as McCarthy Durie Lawyers (“the respondent”), relied on the following material:
a)The application in a case filed 25 March 2015;
b)The affidavit of Ian Alexander Neil filed 25 March 2015;
c)The respondent’s outline of argument filed by leave 21 April 2015;
d)The written submissions on behalf of the respondent as to costs filed 5 May 2015; and
e)The respondent’s written submissions in reply filed 4 May 2015.
Background
The effect of the judgment on 10 June 2014 was that all of the applicant’s claims in relation to Common Law were dismissed and the claims that she made under the Fair Work Act 2009 (Cth) were also dismissed.
In the subsequent costs application, the respondent sought orders that the applicant pay 50% of the respondent’s costs of and incidental to the action in relation to the Common Law claims and 50% of the costs in relation to the Fair Work claims under s.570 of the Fair Work Act 2009 (Cth).
An order was made in those terms on 29 August 2014 as follows:
“[1] That the applicant pay 50% of the respondent’s costs in respect to the applicant’ Common Law claims.
[2] That the applicant pay 50% of the respondent’s costs in respect of the applicant’s claim under the Fair Work Act 2009 (Cth).”
The judgment was reported as Dalglish v MDRN Pty Ltd (No.2) (2014) 287 FLR 227.
The respondent seeks to vary that order on the basis of Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 which provides:
“(2) The Court may vary or set aside its judgment or order after it has been entered if:
…
(e) the order does not reflect the intention of the Court; …”
In the present case, the respondent argues that the orders that they sought and that were made in the costs application did not reflect the intention of the Court.
In the costs judgment it is recorded at page 228:
“[5] The respondent seeks orders that the applicant pay 50% of the respondent’s costs of and incidental to the action in relation to the Common Law claims and the other 50% of the costs in relation the Fair Work claims under s 570(2) of the FW Act.”
At paragraph 34 of the reported judgment, the Court concluded:
“Conclusion
[34] I will make an order for costs for the Common Law claims and the Fair Work claims. I will ascribe 50% of the proceedings to the Common Law and 50% to the Fair Work matter.”
The orders sought by the respondent were made in the terms that the respondent sought. There is now an argument that it was intended that only 50% of each of those costs were to be attributed to the respondent. That is not the case. That is not the effect of the judgment nor is it the clear meaning on the face of the judgment.
The Law
I accept that orders under Rule 16.05 of the Federal Circuit Court Rules 2001 are only made in exceptional circumstances and with great caution.
The respondent sets out, at paragraph 6 of their submissions in reply, a summary of the law with respect to this issue, citing Jeray v Blue Mountains City Council [2013] FCCA 297:
“[6] The Respondent generally accepts the thrust of those submissions. In Jeray v Blue Mountains City Council[1], Judge Lloyd Jones relevantly stated of rule 16.05 of the Rules:
[1] [2013] FCCA 297.
29. Their Honours Mason ACJ, Wilson and Brennan JJ in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 held at 684:
[T]he circumstances in which this court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show by accident without fault on his part that he has not been heard.
His Honour Mason CJ cited this with approval in Autodesk Inc v Dyason (1993) 176 CLR 300 at 302. This authority has also been followed in a number of more recent judgments: Elder v Cameron [2007] NSWSC 984; Maritime Union of Australia v Geraldton Port Authority (2001) FCA 434; Russfal Pty Ltd v Tassal Ltd [2007] TASSC 80.
30. In Diver v Neal [2009] NSWCA 115 their Honours Allsop P (as he then was), Ipp and Basten JJA stated at [5]:
While the court has power to vary orders, the exercise of that discretion should take into account the public interest in preserving the finality of concluded litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51 ; 150 CLR 29 at 38 (Mason and Wilson JJ). After noting that jurisdiction existed in the court to entertain the application in that case, their Honours continued:
Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional.
Their Honours then went to cite the authority of Wentworth v Woollahra Municipal Council (supra).”
Conclusion
I am satisfied that the respondent has discharged the onus to vary the orders, in that it is clear from the judgment what was intended. If the order has created an ambiguity on the part of the applicant, it needs to be varied.
I will therefore make the orders sought by the respondent:
“[1] That the applicant pay 100% of the respondent’s costs in the proceeding of which the applicant pay one half of the respondent’s costs in respect of the applicant’s Common Law claims and the remaining one half of the respondent’s costs in respect of the applicant’s claims under the Fair Work Act 2009.”
This will necessitate the discharge of the orders of 29 August 2014, so that will be an additional order that I will make.
The Taxation Issue
The respondent seeks that the order made on 18 March 2013 for costs and the order made on 29 August 2014 for costs be referred to taxation under Part 40 of the Federal Court Rules 2011. That scale allows the costs to be ordered at a higher rate on the Federal Court Scale.
There was no application before me, when those costs orders were made, to have them made on the higher scale and orders were made in terms of the order the respondent sought. One order was made to be taxed and that is clearly the order that is a matter for taxation for the Registrar of the Federal Court.
It was submitted by the applicant that costs are determined under Rule 21.02(2) of the Federal Circuit Court Rules 2001:
“(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.”
I note that the respondent refers to paragraph 31 of the judgment where I have indicated it is a matter for the parties to have the costs taxed. There was no order for taxation. The order was simply the standard order which is in accordance with the Rule, being costs in accordance with Part 1 and Part 2 of Schedule 1 and disbursements are properly incurred as is set out in Rule 21.10 of the Federal Circuit Court Rules 2001.
There was no application for the costs to be made on the higher scale and I am not persuaded, in the circumstances, that I should make any change to those orders. I will therefore dismiss that part of the respondent’s application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 12 June 2015.
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