Dubow v Fitness First Australia Pty Ltd (No.3)
[2010] FMCA 287
•3 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUBOW v FITNESS FIRST AUSTRALIA PTY LTD (No.3) | [2010] FMCA 287 |
| PRACTICE & PROCEDURE – Costs – awarded to respondent after discontinuance – awarded against applicant when setting aside costs order made in her absence – lump sum assessment using Sch.1 with adjustments. |
| Federal Court Rules (Cth), O.62, O.62, r.26 Federal Magistrates Court Rules 2001 (Cth), rr.1.05(2), 13.02(2), 16.02, 21.02(2), 21.02(2)(a), Sch.1 |
| Cachia v Hanes (1994) 179 CLR 403 Clack v Command Recruitment Group Pty Ltd & Anor (No.2) [2010] FMCA 198 Dubow v Fitness First Australia Pty Ltd (No.2) [2010] FMCA 286 Dubow v Fitness First Australia Pty Ltd [2010] FMCA 56 Dubow v Fitness First & Anor (No.2) [2006] FMCA 502 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Re George Zagoridis & Anor; Ex Parte Q’Plas Group Pty Ltd (1990) 27 FCR 108 Scott v Secretary, Department of Social Security (No.2) [2000] FCA 1450 |
| Applicant: | YOLANDE VICTORIA FRANCES DUBOW |
| Respondent: | FITNESS FIRST AUSTRALIA PTY LTD ACN 094 778 622 |
| File Numbers: | SYG 1510 of 2005 SYG 2624 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 12 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr T Orlizki |
| Solicitors for the Respondent: | Kent Attorneys |
ORDERS IN SYG 1510 of 2005
The applicant must pay the first respondent’s costs, including its costs in proceedings SYG2624 of 2009, set under r.21.02(2)(a) in the amount of $25,594.32.
These orders shall take effect on 24 May 2010 pursuant to r.16.02.
ORDERS IN SYG 2624 of 2009
The applicant must pay the respondent’s costs in relation to the applicant’s application filed on 12 November 2009, as part of the first respondent’s costs awarded in proceedings SYG1510 of 2005.
The applicant’s application filed on 2 February 2010 is refused.
The applicant’s application filed on 26 February 2010 is refused.
The application of Rodney John Kent filed on 25 March 2010 is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1510 of 2005
SYG 2624 of 2009
| YOLANDE VICTORIA FRANCES DUBOW |
Applicant
And
| FITNESS FIRST AUSTRALIA PTY LTD ACN 094 778 622 |
Respondent
REASONS FOR JUDGMENT
This judgment should be read as a sequel to Dubow v Fitness First Australia Pty Ltd [2010] FMCA 56, in which I gave reasons for setting aside a costs order favouring Fitness First in proceedings SYG1510 of 2005, following the filing of a notice of discontinuance by Ms Dubow.The costs order was made on 10 March 2006 in the absence of Ms Dubow, at a hearing of which, as I found, she had been given proper notice. In my judgment, I detailed the history of the matter from its commencement by Ms Dubow until the hearing on 19 January 2010 of her set‑aside application. That application, for reasons which are obscure to me, has been given a new file number, SYG2624 of 2009. Pursuant to directions I gave when delivering judgment, both files were listed before me on 12 April 2010 to determine all outstanding costs issues.
Ms Dubow has not challenged the accuracy of my history of the matter, and it is unnecessary that I should repeat it. She did, however, identify numerous statements in the judgment, in support of an application that I should disqualify myself from deciding all the outstanding costs issues, upon principles of apprehended bias by reason of pre‑judgment. I heard submissions on her application at the commencement of the hearing, and gave ex tempore reasons for declining it. My reasons have been revised and published as Dubow v Fitness First Australia Pty Ltd (No.2) [2010] FMCA 286. I then proceeded with the costs hearing.
The outstanding costs applications are:
i)Oral applications by both Fitness First and Ms Dubow for their costs incurred in the setting‑aside application SYG2624 of 2009, including their costs of the costs applications.
ii)An application by Ms Dubow filed on 2 February 2010 in SYG2624 of 2009, for costs against Fitness First relating to her attendances in the subpoena lists held before Registrar Hedge on 22 December 2009 and Registrar Kavallaris on 18 January 2010.
iii)An application by Mr Kent, the solicitor with the carriage of the matter for Fitness First, filed on 25 March 2010 in SYG2624 of 2009 for his costs of complying with a subpoena issued at the request of Ms Dubow, requiring him to produce documents and give testimony at the hearing of her setting‑aside application on 19 January 2010.
iv)The original application by Fitness First filed on 23 February 2006 in SYG1510 of 2005, for its costs in that proceeding prior to its receiving notice of Ms Dubow’s discontinuance, including its costs in the Federal Court prior to its transfer to this Court, and for its costs in relation to that costs application.
v)Included within Fitness First’s costs applications in both files, were applications for specific awards by reason of the setting aside of the orders made on 10 March 2006, being: (a) its costs of the hearing on that day; (b) its costs during 2008 and 2009 of enforcing the costs order made on that day by way of issuing and serving a bankruptcy notice, but not including its costs in relation to an application by Ms Dubow to set aside the bankruptcy notice (these costs are currently in dispute before Barnes FM); and (c) an award of interest on the amount of costs which might be awarded to Fitness First relating to legal expenses paid prior to 10 March 2006.
vi)An oral application by Fitness First for its costs in relation to Ms Dubow’s application that I should disqualify myself.
These various applications were separately addressed in the course of the parties’ submissions, and the different options available to the Court in relation to the quantification of any costs awards were separately explored. I have given careful thought to all of the parties’ oral and written submissions, and to the documents to which I was referred in the course of them.
Essentially, I have decided that Fitness First is entitled to a costs award in the principal proceedings, and that this should encompass its costs in that proceeding, in Ms Dubow’s set‑aside application, and in all the costs applications. I have decided that I should myself quantify the amounts to be awarded by reference to the ‘events based’ approach of Sch.1 of the Federal Magistrates Court Rules 2001 (Cth), but with some adjustments in favour of Fitness First to recognise that a strict application of the schedule would not produce an appropriate award of party/party costs in the circumstances of the matter. I have not accepted Fitness First’s submissions that some or all of its awarded costs should be quantified as an arbitrary proportion of its actual legal costs. My conclusions favouring an award to Fitness First result in the refusal of Ms Dubow’s costs application in the set‑aside proceeding, and I have not been persuaded that she should be awarded specific costs in relation to her two attendances in the subpoena list. Nor am I persuaded that I should make an award of costs personally to Mr Kent.
I shall explain these conclusions shortly, and then set out a table explaining how I have arrived at my award of costs to Fitness First.
Neither party made any additional submissions as to the Court’s powers to award costs in these proceedings. As I explained in my earlier judgment at [44] to [51], the Court has an unqualified discretion as to the awarding of costs in the present matter, but will usually exercise that discretion by reference to established principles and practices in relation to party/party costs awards. In relation to the quantification of party/party costs the Court is given a range of options, which include reference to taxation by a Registrar under O.62 of the Federal Court Rules (Cth), and itself setting an amount of costs by reference to Sch.1 of its own rules or some other appropriate methodology. The relevant legislation and authorities were set out in my earlier judgment, and I shall not repeat those citations, but I note that I have subsequently given further consideration to the award of costs in a discrimination matter in Clack v Command Recruitment Group Pty Ltd & Anor (No.2) [2010] FMCA 198 at [6]‑[8]. The present costs applications are, however, being addressed in different circumstances than Clack, including the fact that the applicant has not been legally represented, and that she attempted to bring the litigation to an end by filing a notice of discontinuance before the appointed hearing.
I note that Ms Dubow did not address any new submissions, and might appear to have abandoned, her argument that the options under r.21.02(2) are unavailable upon the filing of a notice of discontinuance (see [49] of my earlier judgment). I have, however, given further thought to her argument, and reject it because I consider that the Court’s costs powers are unfettered and are clearly available in relation to all the costs applications now before me.
Notwithstanding my predisposition in protracted discrimination matters to avoid becoming a taxing officer myself, and to make use of the expertise of the Registrars, I have been persuaded by the present parties that I should myself adopt the option conferred by r.21.02(2)(a) assisted by the ‘events based’ approach suggested by Sch.1.
Perhaps the only common ground in the submissions of Fitness First and Ms Dubow was their desire not to have costs investigated and determined under the O.62 taxation procedures. I can well understand why this is unattractive to them, taking into account the likelihood that a taxation of either of their costs claims would become a highly expensive, protracted and frustrating experience for everyone involved. Taking into account the amount of time I have spent, now on two occasions, absorbing the disproportionate efforts of both parties to elaborate their costs arguments in writing and orally, I can identify a clear public interest in not requiring this effort to be repeated by a Registrar and, quite possibly, by a Federal Magistrate on review. My opinion in 2006 that it was desirable, and consistent with the statutory objectives of this Court, that costs in the present matter should be decided by a summary procedure of costs assessment has been repeatedly vindicated in the course of the proceedings before me during 2010.
The above consideration has been my principal reason for now adopting a lump sum approach to assessment of costs which uses Sch.1 as a guide, rather than adopting the approach submitted by Fitness First in relation to some of its costs, of adopting an arbitrary discounting of its actual legal expenses and disbursements. It presented evidence that, not including GST, these were:
$27,876.74
up to 27 February 2006, which was the amount claimed at the hearing on 10 March 2006
$2,960
up to and including that hearing
$2,541.70
during 2008 and up to February 2009, in relation to serving a bankruptcy notice to enforce the costs order which was later set aside
$33,378.44
Total
Fitness First submitted that it should be awarded a discounted amount of $25,834.46 in relation to the first two of the above amounts, and also the third amount as costs ‘thrown away’. It also presented a calculation of these costs ‘based on Sch.1’ totalling $17,425.32. Fitness First did not present evidence of its actual costs in relation to the setting‑aside application, but presented calculations ‘based on Sch.1’ for those costs up to and including the hearing on 19 January 2010 totalling $10,755, plus $3,910 for the costs applications. In addition, Mr Kent sought a personal costs award of $3,506.25 in relation to Ms Dubow’s subpoena for him to attend on 19 January 2010, and Fitness First sought an amount of $385.71 by way of interest up to judgment on its costs incurred up to March 2006. Fitness First therefore sought total costs orders against Ms Dubow of $46,935.42.
Ms Dubow contested her liability to a costs order in relation to all of Fitness First’s costs applications, and also contested all of its submitted lump sum quantifications. She presented a calculation applying Sch.1 to all its costs up to and including 10 March 2006, which gave it $3,460 plus disbursements (which she disputed) of $562.32.
In relation to her own application for costs in the setting‑aside application, Ms Dubow presented a calculation giving her $20,145, including her costs application. She contended that, although she was not legally represented, she could recover professional costs under the “somewhat anomalous exception” for self‑representing solicitors which was acknowledged in Cachia v Hanes (1994) 179 CLR 403 at 411. In addition, she claimed costs under Sch.1 in relation to her attendances in the Registrars’ subpoena lists on 22 December 2009 and 18 January 2010.
It is apparent from the above, that even a Sch.1 based lump sum costs assessment can give rise to starkly divergent outcomes, depending upon its interpretation and the exercise of the Court’s discretion to apply its provisions flexibly. Moreover, as Raphael FM noted when arriving at a costs award in favour of Garnama Pty Ltd in the present principal proceedings, costs of preparation for some hearings involving “substantial correspondence between the parties and the filing of affidavits … are not very well covered by the schedule”, and justified the addition of “an appropriate amount” (see Dubow v Fitness First & Anor (No 2) [2006] FMCA 502 at [4]).
I have accepted Ms Dubow’s submission that I should attempt an approach to determining lump sum costs which follows the approach taken to Sch.1 by Raphael FM in relation to a different respondent in the same proceedings after I had made my orders on 10 March 2006. This approach takes note of the actual expenses incurred by Fitness First, but recognises that it is impossible to make assumptions as to their reasonableness on a party/party basis without a detailed taxation process, which both parties wish to avoid. However, I do not accept Ms Dubow’s contention that this approach should produce a total award which is less than, or even similar to, the amount of $6,154.25 awarded to Garnama Pty Ltd. In my opinion, it is manifest from the history of Ms Dubow’s proceedings against both respondents, that Fitness First was required to incur substantially greater legal costs prior to her discontinuing her claims against it, in particular in the preparation of affidavit evidence for a three day hearing.
In my opinion, the prima facie entitlement of Fitness First to a costs award on a party/party basis in relation to its costs in proceedings SYG1510 of 2005 clearly overrides the contrary considerations urged upon me by Ms Dubow. That entitlement arises under the general costs principle favouring successful defendants, which I cited in my earlier judgment at [44]. It is strongly pointed to in the Federal Court Rules, O.62 r.26 which makes a discontinuing party liable to “pay the costs of the party against whom the discontinued claim is made occasioned by the discontinued claim and incurred before service of notice of the discontinuance”. In my opinion, it is generally appropriate to follow the policy of that rule in this Court in relation to matters such as the present (cf. Federal Magistrates Court Rules r.1.05(2)).
I am not persuaded to depart from the usual practice to award costs against a party discontinuing a claim without consent, by any of Ms Dubow’s submissions. Specifically, I do not accept that any of the following matters, either discretely or cumulatively, should cause me to refuse Fitness First’s costs application:
·The correspondence between the parties in relation to compromise outcomes. It is correct that this correspondence might have opened up a sensible outcome in the early stages of the litigation. However, Ms Dubow did not accept Fitness First’s offer at the time it was made, and it was not manifestly unreasonable for Fitness First to withdraw its early offer, and to reject all of Ms Dubow’s subsequent offers of compromises, in a situation where it had been compelled to incur substantial legal expenses by that time. It was then forced to incur very substantial expenses before she filed a unilateral notice of discontinuance without any notice of her intention to do so. At no time did Ms Dubow offer to discontinue and to pay an agreed or assessed amount of costs to Fitness First.
·The assertion of Ms Dubow, in effect, that her claims against Fitness First were trivial and without substance, making it inappropriate for it to incur substantial legal expenses prior to her discontinuing her claims. Although, with hindsight, I have some sympathy with Ms Dubow’s belief that Fitness First and its solicitors have engaged in ‘over‑kill’ at times in their responses to her litigation, I am not persuaded that the legal expenses which were incurred by Fitness First were inappropriately incurred at the time they were incurred. Ms Dubow’s claims for monetary compensation were not, on their face, insignificant, and they were presented with intemperate language and obscure allegations which it was reasonable for Fitness First strongly to resent and resist. Neither Ms Dubow’s claims, nor Fitness First’s defences, have been examined in a trial, and it would be inappropriate for me to embark on deciding their merits merely for the purpose of deciding costs applications (cf. Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624‑625). My general impression as to the nature and importance of the matters in issue, and the general need for costs awards to be proportionate, have been given effect in my adoption of the approach explained above, and when arriving at an appropriate lump sum award of costs to Fitness First.
·Delays in Fitness First’s compliance with directions prior to the notice of discontinuance. I am unpersuaded that any significant non‑compliance occurred, nor that any delay by it in serving its affidavits or foreshadowed affidavits should prevent or diminish its entitlement to a costs order. Some of these contentions were addressed, and rejected, by Raphael FM in his judgment given on 30 January 2006.
·The long period between the discontinuance and the award of costs. Ms Dubow argued that this had resulted in her losing her records and memory of events relevant to the determination of costs, and that it would be unfair that she should now be ordered to pay costs. I accept that the Court may well decline to make an award of costs after a discontinuance, where an application is not made or pursued promptly. Federal Magistrates Court Rules r.13.02(2) points towards this consideration, when requiring a costs application to be made within 28 days after service of a notice of discontinuance. However, Fitness First’s application was brought within that time. On my previous findings, which I am not now persuaded to depart from, the costs application was properly served on Ms Dubow, and she had the opportunity to oppose it in a timely manner. She has now obtained an opportunity for a rehearing of the cost application. Whatever the reasons for her failure to attend the listing in March 2006, and for her delay in applying to set aside the costs order made in March 2006, I am not persuaded that any conduct of Fitness First in relation to its bringing of its costs application or subsequently should disentitle it from an award of costs. Moreover, the prejudice to which she points arising from the lapse of time are minimised in my application on Sch.1, which is based on events recorded on the Court’s files. I therefore would not accept that any element of hardship now facing Ms Dubow in resisting a costs award should cause me to refuse to make one.
·Ms Dubow’s financial and personal hardships. For the same reasons, I am not persuaded that she has presented overriding considerations based on the financial and personal matters which she outlined in her affidavits, submissions and oral submissions. It is well established that impecuniosity of an unsuccessful party does not provide reason for refusing a costs order to a successful party (see Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [4]).
·The inequality of resources available to the parties. It was urged upon me by Ms Dubow that she was a litigant in person against an apparently successful trading company, and that this would provide reasons for not making any award against her or for diminishing an award in its favour. I do not accept that these arguments provide a sufficient reason for declining to make a costs award to Fitness First. Nor do I consider that they point to a consideration for discounting the costs to be awarded to Fitness First, independently of a consideration of the general nature and importance of the issues in the litigation. Ms Dubow was at relevant times a legal practitioner with knowledge of Court practices. She must have embarked on this litigation fully aware that it was open to her target to employ legal assistance, to fully defend itself, and to recover costs if her claims were unsuccessful. There is no injustice in costs now being awarded against her.
For the above reasons, I am satisfied that it would be appropriate to award costs to Fitness First in relation to Ms Dubow’s claims which were discontinued in SYG1510 of 2005, and to include in those costs all its costs on the application for costs filed on 23 February 2006.
Ms Dubow has not presented any new evidence nor submissions which causes me to depart from the findings I made in my earlier judgment, concerning service of Fitness First’s costs application on her and her absence from the hearing on 10 March 2006. I have reviewed my findings, and would not alter them. They have the consequence, in my opinion, that nothing in the evidence should cause me not to include, as part of the costs awarded to Fitness First in SYG1510 of 2005, its costs relating to the costs hearing on 10 March 2006 and today.
The findings in my earlier judgment which I maintain, include that Ms Dubow’s absence from the hearing on 10 March 2006 might, at best, have been due to a confusion on her part for reasons which are obscure. However, the circumstances were that she had been properly served with the costs application and its listing appointment, was actually aware of the costs application before the listing, and was given a reasonable opportunity to attend and resist the making of a costs order. In this situation, I can find no reasons to characterise any conduct of Fitness First in relation to obtaining the order on 10 March 2006, as such that it should not have the benefit of the usual approach to costs in relation to the setting aside of the default orders. This was referred to by Spender J in Re George Zagoridis & Anor; Ex Parte Q’Plas Group Pty Ltd (1990) 27 FCR 108 at 114:
Where judgment is irregular or signed in breach of good faith, the plaintiff is usually ordered to pay the costs of the application to set it aside, but if the judgment be regular, as a rule it will be set aside only on terms that the defendant pay the costs of the judgment and of the application to set the judgment aside.
A middle course is also sometimes found in practice, being the awarding of the costs of a setting‑aside application to be the parties’ costs in the reinstated matter. This course is appropriate where the reasons for the default judgment do not reflect adversely upon the conduct of either of the parties, but arise from misfortune or events for which neither of them appears to be responsible. It has the consequence that the costs of a contested setting‑aside application will usually be awarded to whoever eventually is successful in the reinstated matter.
In my opinion, this approach should be followed in relation to the costs of Ms Dubow’s application to set aside. On either of the usual approaches, I would refuse her application for her costs. On balance, in my opinion, it is more appropriate and tidier, for me to order that Fitness First’s costs in SYG2624 of 2009 should be assessed and ordered as part of its costs awarded in SYG1510 of 2005, than that I make a separate quantified costs order in favour of Fitness First in the 2009 proceedings.
When arriving at my conclusions as to the awarding and quantification of costs in relation to the setting‑aside application, I have considered all the contentions which Ms Dubow made generally in relation to the costs issues, and which I have discussed above.
I have also considered her submission that Fitness First should be refused, and she should be awarded, her costs of that application because its opposition to the setting‑aside application was unreasonable. However, I do not accept that its opposition was unreasonable and should disentitle it from costs. The allegations made in Ms Dubow’s affidavit and other material filed in support of her set‑aside application contained allegations of impropriety on the part of Fitness First and its solicitors which were unfounded, and which a prior examination by Ms Dubow of the Court’s records and the obtaining of a transcript of the hearing on 10 March 2006 would have shown to be unfounded. The evidence and submissions presented to the Court by Fitness First in opposition to setting aside the order were not, in my opinion, unreasonably presented in all the circumstances. I do not consider that anything in its conduct, or that of its solicitors, in relation to the setting‑aside application should cause me to refuse to award it costs of that application on a party/party basis. In particular, I do not consider that its delay in taking enforcement action in relation to the order made on 10 March 2006, and its failure to give earlier notice to Ms Dubow of the order, provides a reason for me to refuse to award any costs.
There does, however, remain a mystery which has not been explained entirely to my satisfaction by either party, as to why, on the one hand, Ms Dubow never inquired as to the outcome of the 2006 costs application and hearing of which she was on notice, and, on the other hand, Fitness First did not ensure that she was aware of the default order it obtained at that hearing until it served a bankruptcy notice in 2009. In my earlier judgment, I surmised that both of these omissions resulted from both parties being distracted by their continuing litigation in the Supreme Court, and this remains the most likely explanation.
I have above concluded that on its part, Fitness First’s slowness in taking any step to enforce the costs order and in giving Ms Dubow notice of the costs order, should not cause me to refuse to award it costs arising from the discontinuance, nor those from the setting‑aside application. I am, however, not persuaded that I should additionally award it any amounts to compensate it for its enforcement costs and lost interest on the 2006 order. I do not consider that it would be fair and reasonable in all the circumstances to include these in my costs awards, or to otherwise require their payment as a condition of setting aside the 2006 order. In particular, I am not satisfied that it was reasonable for Fitness First’s solicitor to delay enforcement, and then to incur substantial expenses in relation to the service of a bankruptcy notice, without first ensuring that Ms Dubow was on prior notice of the Court order upon which it was based, and of Fitness First’s intention to enforce it.
I would also refuse Mr Kent’s separate application for the costs of his attendance at Court on 19 January 2010, after being served with a subpoena to produce documents and give evidence. He was not given, and did not insist upon receiving, any attendance money, and he gave notice only that his estimated expense was $600. This estimate seems to have acknowledged that he was in any event due to attend the hearing in his professional capacity. I am therefore not persuaded by his current assertion that all his professional time and expenses in complying with the subpoena were not covered by his retainer for Fitness First as its solicitor with the carriage of the matter. In fact, most, if not all of his attendance at the hearing on that date was occupied in his giving instructions to his partner, who appeared as Fitness First’s advocate on that occasion.
I do, however, accept that if Mr Kent had not been under subpoena to give evidence or attend for cross‑examination on a contested issue of fact, he would have appeared as Fitness First’s advocate, thereby saving Fitness First the expense of employing an additional legal representative. I therefore propose to include an additional attendance fee, to recognise that it became necessary for two legal representatives to prepare for and attend the hearing. I shall otherwise refuse Mr Kent’s application of 25 March 2010, with no order as to costs.
I have considered Ms Dubow’s application for her costs for attendances in the subpoena lists before the Registrars on 22 December 2009 and 18 January 2010. It is difficult to detect any reason for a special costs order now to be made. Moreover, the Court’s listing reports and other records of these attendances suggest that they also related to notices to produce or subpoenas served by both parties in relation to the bankruptcy proceedings. I am not persuaded that Ms Dubow was put to any additional expense which deserves to be the subject of a separate costs order. On my assessment of the evidence of what happened – which is difficult in the absence of a transcript – it appears to me that, at most, the appropriate costs order in relation to her attendances is that she should have her costs of attendances as her costs in the matters listed. Since I have declined to award her any costs in the proceedings now before me, I therefore shall make no order in her favour arising from these listings. I shall refuse Ms Dubow’s application filed on 2 February 2010.
It remains for me to quantify the lump sum costs which I am awarding to Fitness First in proceedings SYG1510 of 2005, including its costs arising from the setting‑aside application and other applications in SYG2624 of 2009. As I have explained above, essentially, I have arrived at a lump sum award in exercise of my discretion under r.21.02(2)(a). When doing so, I have been guided by the items and rates in Sch.1 as at relevant dates, but I have at times departed from its strict terms, by including some additional appropriate items. My reasoning in this respect is shown in the following table.
I emphasise that when including particular items, and at the end of the process, I have considered both the circumstances of the particular court events, and the ultimate total figure, to satisfy myself that it represents a reasonable, just and appropriate award of lump sum party/party costs against Ms Dubow in relation to the costs applications in which Fitness First has been successful.
| 1. | Stage 1: opposing application up to completion of first court day – lump sum and short court attendance before Moore J on 31.05.05. | $2,010 |
| 2. | Stage 2: short attendances before Barnes FM on 05.10.05, and 11.10.05 and Raphael FM on 08.12.05. | $570 |
| 3. | Ms Dubow’s interim application for summary judgment, heard by Raphael FM on 30.01.06 – a lump sum under Stage 2 (not 1A) with half day hearing fee and advocacy loading are appropriate. | $2,162 |
| 4. | Stage 5: preparation for final hearing. Substantial correspondence, taking of instructions and preparation of evidence had occurred, both in absorbing the evidence filed by Ms Dubow and in preparing affidavits for Fitness First before service of the notice of discontinuance. I consider it reasonable to allow an amount calculated by reference to the 3 day lump sum. | $7,440 |
| 5. | Costs application and listing on 10.03.06 – Stage 2 (not 1A) interim application lump sum and half day hearing fee with advocacy loading is appropriate in view of Ms Dubow’s affidavit filed before the hearing which suggested that a contested hearing would occur, and notwithstanding her non‑appearance on that occasion. No additional amount is allowed to ‘explain orders’. | $2,162 |
| 6. | Disbursements. I am satisfied that these were properly incurred. | $560.32 |
| 7. | Set aside application, including Stage 2 lump sum, short attendance on 20.11.09, full day attendance by Mr Orlizki on 19.01.10, advocacy loading for that day, additional attendance by Mr Kent (i.e. recognising need for two legal representatives to be present), and attendance for judgment and directions on 08.02.10. I note that Fitness First has not claimed for any attendances in the Registrars’ subpoena lists in relation to these proceedings. | $6,345 |
| 8. | Costs and disqualification applications hearing on 12.04.10 – appropriately treated as one Stage 2 lump sum, with full day hearing fee and advocacy loading. | $4,105 |
| 9. | Attendance to take this judgment. | $240 |
| 10. | TOTAL: | $25,594.32 |
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 3 May 2010
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