Dubow v Fitness First and Anor (No.2)

[2006] FMCA 502

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUBOW v FITNESS FIRST & ANOR (No.2) [2006] FMCA 502

COSTS – Assessment under Schedule 1 of the Federal Magistrates Court Rules.

Federal Magistrate's Court Rules 2001

Applicant: YOLANDE VICTORIA FRANCES DUBOW

First Respondent: FITNESS FIRST AUSTRALIA PTY LTD (ACN 094 778 622)

Second Respondent: GARNAMA PTY LTD trading as LES MILLS BODY TRAINING SYSTEMS
(ACN 002 367 884)

File Number: SYG1510 of 2005

Judgment of: Raphael FM

Hearing date: 6 April 2006

Date of Last Submission: 6 April 2006

Delivered at: Sydney

Delivered on: 6 April 2006

REPRESENTATION

For the Applicant: No appearance

Counsel for the Second Respondent: Ms K Eastman

Solicitors for the Second Respondent: Minter Ellison

ORDERS

1. Applicant to pay the costs of the Second Respondent assessed in the sum of $6,154.25.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1510 of 2005

YOLANDE VICTORIA FRANCES DUBOW

Applicant

And

FITNESS FIRST AUSTRALIA PTY LTD
(ACN 094 778 622)

First Respondent

GARNAMA PTY LTD TRADING AS LES MILLS BODY TRAINING SYSTEMS
(ACN 094 778 622)

Second Respondent

REASONS FOR JUDGMENT

1. In this matter I am asked to adjudicate on an assessment of costs prepared in accordance with Schedule 1 of the Federal Magistrate's Court Rules 2001.  I am happy to do this.  Although the Federal Magistrate's Court has been in operation now for almost six years our cost schedules have not been the subject of very much consideration or judicial authority and I accept that they are not always easy to understand.  I am therefore not critical of the respondent for what I perceive as its errors in preparation of a bill under that schedule.

2. The respondent claimed against the applicant the sum of $9,867.61 in respect of its work up until the applicant discontinued her proceedings against it at a strike-out application that was partially heard before me.  The first item is stage 1 in the schedule, “opposing application up to completion of the first court date” in the sum of $1,820.  Ms Eastman reminds me that the second respondent was independently advised to the first respondent and she was independently briefed.  Therefore, I am prepared to grant the whole of that figure over the applicant's written objection based upon proportionality.  I am also prepared to grant the $190.00 for the directions hearing but not the $95.00 advocacy loading.  Although Ms Eastman did appear, the first directions hearing is not really a matter where it is necessary to have counsel.

3. I have deleted the sum of $2,275.00 to stage 1A “initiating strike out application up to the completion of the first court day” because this is a matter that was originally placed in the schedule for compensation in family law matters, although I can see that it would be relevant in general Federal law matters for the opposition to, for example, an interim application for an injunction or for an Anton Pillar or Mareva style order.  In other words, 1A is intended to address an initiating application rather than the type of application brought here which was a summary judgment application.  That type of application is reflected in stage 2.  The two directions hearings which are included in the schedule prepared by the respondent as being part of stage 1A should properly be seen as being part of stage 2 and in respect of both I am prepared to allow $190.00 but not the advocacy loadings.  I am prepared to allow the attendance at stage 2 lump sum of $1,135.00.  I am also prepared to allow strike-out hearing stage 2 lump sum of $685.00 and the advocacy loading of $332.00 because that was a matter in which Ms Eastman was instructed, and properly so.  I am prepared to allow the costs hearing stage 2 at $205.00 which is the matter before me today.  And I reluctantly allow Ms Eastman the advocacy loading of $102.50.

4. There were some disbursements of $671.51.  Unfortunately I do not have details of these disbursements.  I have requested a break-down of these disbursements from the respondent's solicitors and will not make final orders until I see that document.  There is then an item of hearing preparation costs in the sum of $1,776.10.  These costs, Ms Eastman tells me, are the costs involved in preparing for this hearing which included substantial correspondence between the parties and the filing of affidavits.  These matters are not very well covered by the schedule.  I think that in all the circumstances I should make an assessment of an appropriate figure which I do in the sum of $750.00

5. Upon my calculation the amount due by the applicant to the respondent in respect of the costs of its defence to the application up to date are $4,859.00 under the schedule plus $750.00 assessed for the preparation for this hearing and a sum for disbursements which I will calculate upon seeing the documentation.  I will make a final order upon seeing the disbursements documentation in Chambers.

   [Since dictating these reasons I have seen documentation upon which I assess the disbursements at $645.25.]

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: