Dispute Resolution Associates Pty Ltd v Selth (No 3) - [2020] FCA 1554

FEDERAL COURT OF AUSTRALIA
Dispute Resolution Associates Pty Ltd v Selth (No 3) [2020] FCA 1554

Appeal from: Minus v Selth (No 2) [2017] FCA 1233

File number: NSD 1409 of 2018

Judgment of: COLLIER J

Date of judgment: 23 October 2020

Catchwords: COSTS – interlocutory application for extension of time and leave to appeal – whether costs should follow the event.

Legislation: Federal Court of Australia Act 1976 (Cth) s 43

Cases cited:
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Umoona Tjutagku Health Service Aboriginal Corporation v Walsh (2019) 268 FCR 401; [2019] FCAFC 32

Division: General Division

Registry: Queensland

National Practice Area: Other Federal Jurisdiction

Category: Catchwords

Number of paragraphs: 18

Date of hearing: 23 October 2020

Counsel for the Applicants: Mr D Minus

Counsel for the First Respondent: The First Respondent did not appear

Solicitor for the Second Respondent: Mr T Bridges of Webb Henderson

ORDERS

NSD 1409 of 2018

BETWEEN:
DISPUTE RESOLUTION ASSOCIATES PTY LTD ACN 50 090 594 451

First Applicant

MEDIATION & ARBITRATION CENTRE PTY LTD ACN 608 133 768

Second Applicant

AND:
PHILIP SELTH IN A REPRESENTATIVE CAPACITY FOR THE MEMBERS OF THE AUSTRALIAN BAR ASSOCIATION

First Respondent

ABA AUSTRALIAN BAR ASSOCIATION LTD ACN 605 949 148

Second Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

23 OCTOBER 2020

THE COURT ORDERS THAT:
1.The first applicant and the second applicant pay the second respondent’s costs of and incidental to the proceedings on a party-party basis from 5 September 2019 up to and including today’s date (other than costs of and incidental to the interlocutory application filed on 25 May 2020).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
COLLIER J:

On 17 June 2020, in Dispute Resolution Associates Pty Ltd v Selth (No 2) [2020] FCA 844 (primary judgment), I dismissed an application by the applicants for extension of time and leave to appeal (leave application) from a decision of this Court in Minus v Selth (No 2) [2017] FCA 1233. Relevant facts are summarised in my earlier decision at [2]-[73], and it is unnecessary for me to repeat them here. Materially, I note that the applicants were successful in respect of their interlocutory application filed on 12 September 2019, seeking reinstatement of the proceedings (reinstatement application), in that on 4 June 2020 I ordered that the proceedings be reinstated.
Determination of appropriate orders relating to the costs of and incidental to the dismissed application for extension of time and leave to appeal remains an outstanding issue.
On 2 June 2020 in Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753, I dismissed the interlocutory application filed on 25 May 2020 referable to substitution of the first respondent (substitution application). It follows that there is no first respondent in a…

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: [2020] FCA 1554
Decision Date: 23 October 2020

CaseChat Overview and Summary

In the matter of Dispute Resolution Associates Pty Ltd v Selth (No 3), the Court was required to determine the costs associated with an interlocutory application for an extension of time and leave to appeal, following a dismissed application for extension of time and leave to appeal. The primary judgment had already been issued in the case, with the applicants being successful in their interlocutory application for reinstatement of proceedings. The court was tasked with deciding whether the costs should follow the event, and if so, to what extent.

The court noted that the second respondent was successful in opposing the leave application and had argued that as the successful party, it was entitled to its costs unless there was a good reason to displace the usual rule. The applicants, on the other hand, had argued that an oral hearing was necessary to determine the costs, and that Mr Selth’s replacement should appear. The second respondent opposed these submissions, and ultimately, the court found that the second respondent was entitled to its costs on a party-party basis.

The court's reasoning was based on the fact that the second respondent had successfully opposed the leave application, and there was no good reason to displace the usual rule that costs follow the event. The court also noted that although the applicants had been successful in their interlocutory application for reinstatement, this success was distinguishable from proceedings where parties have partial successes on distinct or separate issues. The reinstatement application and the leave application had been heard together, and preparation and arguments for each were inextricable.

ORDERS:
The court ordered that the first and second applicants pay the second respondent’s costs of and incidental to the proceedings on a party-party basis from 5 September 2019 up to and including the date of judgment on costs (other than costs of and incidental to the interlocutory application filed on 25 May 2020). The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The first applicant and the second applicant pay the second respondent’s costs of and incidental to the proceedings on a party-party basis from 5 September 2019 up to and including today’s date (other than costs of and incidental to the interlocutory application filed on 25 May 2020).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 17 June 2020, in Dispute Resolution Associates Pty Ltd v Selth (No 2) [2020] FCA 844 (primary judgment), I dismissed an application by the applicants for extension of time and leave to appeal (leave application) from a decision of this Court in Minus v Selth (No 2) [2017] FCA 1233. Relevant facts are summarised in my earlier decision at [2]-[73], and it is unnecessary for me to repeat them here. Materially, I note that the applicants were successful in respect of their interlocutory application filed on 12 September 2019, seeking reinstatement of the proceedings (reinstatement application), in that on 4 June 2020 I ordered that the proceedings be reinstated. Determination of appropriate orders relating to the costs of and incidental to the dismissed application for extension of time and leave to appeal remains an outstanding issue. On 2 June 2020 in Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753, I dismissed the interlocutory application filed on 25 May 2020 referable to substitution of the first respondent (substitution application). It follows that there is no first respondent in a position to seek, or oppose, costs. By email dated 1 July 2020 from the second respondent to Chambers, and copied to Mr Minus, Mr Bridges for the second respondent informed the Court as follows:We refer to the orders made by her Honour on 17 June 2020. The Second Respondent seeks case management orders in the form attached in relation to the question of costs.Mr Minus has advised us that the First Applicant and Second Applicant:1. Consents to order 1 of the proposed orders.2. Requires an oral hearing regarding costs.3. Requires that Mr Selth’s replacement appear. The Second Respondent opposes orders 2 and 3 above sought by the First and Second Applicant. Attached to this email were the following draft orders proposed by the second respondent:THE COURT ORDERS THAT:1.The parties file and serve any written submissions on the issue of costs by 4:00pm on 8 July 2020 (not exceeding five pages in length). 2. The issue of costs be determined on the papers. In circumstances where the applicants did not dispute the timing of submissions being filed, but sought an oral hearing, on 2 July 2020 I made the following case management orders:1.The parties file and serve any written submissions on the issue of costs by 4.00 pm on 8 July 2020 (not exceeding five pages in length).2.The matter be listed for a hearing in respect of costs for half a day at 10.15 am on 22 October 2020 Only the second respondent has filed submissions in respect of costs. In summary, the second respondent submits:·The second respondent was successful in the primary judgment in opposing the leave application.·As the successful party, the second respondent is entitled to its costs unless there is a good reason to displace the usual rule. There is no good reason in this case.·Although the applicants were successful in respect of the reinstatement application (notwithstanding the opposition of the second respondent), this was on the basis that reinstatement was an efficient and cost-effective way forward to progress the proceedings in relation to the extension application. There was no indication by the Court that the opposition was without merit.·In any event, the success of the applicants in respect of the reinstatement application was distinguishable from proceedings where parties have partial successes on distinct or separate issues. The reinstatement application and the leave application were heard together, and preparation and arguments for each was inextricable. ·It would work an injustice on the second respondent if it were required to relinquish a portion of its costs in meeting the applicants’ case.·The appropriate order is that the applicants pay the second respondent’s costs of and incidental to the proceedings on a party-party basis from 5 September 2019 up to and including date of judgment on costs (other than costs of and incidental to the substitution application).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Minus v Selth (No 2) [2017] FCA 1233
File number:	NSD 1409 of 2018
Judgment of:	COLLIER J
Date of judgment:	23 October 2020
Catchwords:	COSTS – interlocutory application for extension of time and leave to appeal – whether costs should follow the event.
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:	Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Umoona Tjutagku Health Service Aboriginal Corporation v Walsh (2019) 268 FCR 401; [2019] FCAFC 32
Division:	General Division
Registry:	Queensland
National Practice Area:	Other Federal Jurisdiction
Category:	Catchwords
Number of paragraphs:	18
Date of hearing:	23 October 2020
Counsel for the Applicants:	Mr D Minus
Counsel for the First Respondent:	The First Respondent did not appear
Solicitor for the Second Respondent:	Mr T Bridges of Webb Henderson

ORDER MADE BY:	COLLIER J
DATE OF ORDER:	23 OCTOBER 2020