Dalglish v MDRN Pty Ltd (No.3) - [2015] FCCA 1585

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1585
Decision Date: 12 June 2015

CaseChat Overview and Summary

In *Dalglish v MDRN Pty Ltd (No.3)*, Judge Cassidy of the Federal Circuit Court of Australia considered an application to vary previous costs orders. The dispute arose from an earlier decision where the Court had ordered costs for both Common Law claims and Fair Work Act claims, attributing 50% of the proceedings to each. The respondent sought to clarify and vary these orders, arguing that the intention was for the applicant to pay 100% of the respondent's costs, with one half of those costs referable to the Common Law claims and the remaining half to the Fair Work Act claims.

The primary legal issue before the Court was whether the previous costs orders should be varied to reflect the respondent's interpretation of the Court's intention. This involved determining if the original order was ambiguous and if the respondent had discharged the onus to vary the orders by demonstrating the clear intention of the Court. A secondary issue concerned whether the costs should be referred for taxation under the Federal Court Rules 2011, which allows for costs to be ordered at a higher rate.

Judge Cassidy reasoned that while orders under Rule 16.05 of the Federal Circuit Court Rules 2001 are made with caution, the respondent had discharged the onus to vary the orders as the intention was clear from the judgment. The Court found that the original order had created an ambiguity for the applicant and that the respondent's proposed variation accurately reflected the Court's intent. The Court also addressed the taxation of costs, noting that the previous order was a standard order for costs in accordance with the Federal Circuit Court Rules, not an order for taxation under the Federal Court Rules.

Consequently, the Court made orders discharging the previous costs orders of 29 August 2014 and substituting them with new orders. The applicant was ordered to pay 100% of the respondent's costs, with one half of those costs attributed to the Common Law claims and the remaining half to the Fair Work Act claims. The Court also clarified that the costs were to be taxed in accordance with the standard Federal Circuit Court Rules, not on the higher Federal Court scale.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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: 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 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.

Ratio Decidendi

Legal Principle Established

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