Edwards v Commonwealth Of Australia and Ors (No.3)
[2012] FMCA 955
•25 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDWARDS v COMMONWEALTH OF AUSTRALIA & ORS (No.3) | [2012] FMCA 955 |
| CONSUMER PROTECTION – Practice and procedure – complex application dismissed – assessment of costs to follow event – party/party costs fixed by reference to prescribed scale. |
| Federal Court Rules 2011 (Cth) Federal Magistrates Court Rules 2001 (Cth), rr.21.02(2)(c), 21.11(2)(b), 21.15, Sch.1 |
| Edwards v Commonwealth of Australia & Ors (No.2) [2012] FMCA 702 |
| Applicant: | THOMAS CHRISTOPHER EDWARDS |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | UNIVERSITY OF SYDNEY (ABN 15 211 513 464) |
| Third Respondent: | SECRETARY, DEPARTMENT OF HEALTH AND AGEING |
| Fourth Respondent: | MINISTER FOR HEALTH |
| Fifth Respondent: | DEPARTMENT OF HEALTH AND AGEING |
| File Number: | SYG 1463 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | None |
| Date of Last Submission: | 19 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the First, Third and Fourth Respondents: | Australian Government Solicitor |
| Solicitors for the Second Respondent: | Minter Ellison |
ORDERS
Certify under r.21.15 of the Federal Magistrates Court Rules 2001 (Cth) that it was reasonable for the respondents to employ advocates to appear on their behalf.
The applicant pay the costs of the first, third, and fourth respondents, set in the amount of $52,904.66.
The applicant pay the costs of the second respondent, set in the amount of $51,280.54.
The above costs shall not accrue interest if they are paid within 21 days after the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1463 of 2010
| THOMAS CHRISTOPHER EDWARDS |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
| UNIVERSITY OF SYDNEY (ABN 15 211 513 464) |
Second Respondent
| SECRETARY, DEPARTMENT OF HEALTH AND AGEING |
Third Respondent
| MINISTER FOR HEALTH |
Fourth Respondent
| DEPARTMENT OF HEALTH AND AGEING |
Fifth Respondent
REASONS FOR JUDGMENT
In this matter I published a judgment on 7 September 2012, explaining my reasons for dismissing all of Mr Edwards’ claims against the respondents (see Edwards v Commonwealth of Australia & Ors (No.2) [2012] FMCA 702). When delivering judgment, I gave directions to allow issues of costs to be addressed and decided on the parties’ written submissions.
The respondents have applied for costs orders against Mr Edwards, and he has not applied for any costs order against the respondents. The respondents do not seek a total indemnity nor departure from the usual party/party basis of a costs award to a successful party, notwithstanding that they have presented evidence that in the course of the proceedings Mr Edwards declined several offers to compromise which would have allowed him to discontinue without orders for costs.
Mr Edwards submits that I should not apply the usual general principle. He points to his losses arising from the termination of his medical career and the general importance of his case. However, I am unpersuaded that the case had any general importance so as to make it fair to refuse the respondents’ application for costs. All of Mr Edwards’ claims for relief have been rejected, and I am unpersuaded that the usual principle should not be followed.
Nor can I identify any proper objection arising from a transcript of the proceedings before Moore J on 1 July 2010, to which I was referred by Mr Edwards. The transcript suggests that Mr Edwards was made aware that he was likely to face a costs award according to this Court’s usual rules and practices, as a consequence of the matter being remitted to it.
I suggested at the end of my judgment that the complexity of the preparation and hearing of the matter, resulting from the manner in which Mr Edwards had presented his case, might be best recognised by costs orders being made under rr.21.02(2)(c) and 21.11(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for taxation by a Registrar under the Federal Court Rules 2011 (Cth) and scales. However, the respondents have presented submissions which ask the Court to award fixed amounts, thereby sparing them from what might be considerable additional expense and delay arising from taxation processes.
The Commonwealth respondents have presented evidence that their actual solicitor/client costs and disbursements at 23 September 2012 totalled $152,041.35. They seek a fixed award for costs and disbursements of $52,904.66. In support, they have presented a schedule of costs calculated under Sch.1 to the Federal Magistrates Court Rules totalling $41,771.50 for professional costs, and calculations totalling $11,133.16 (GST excluded) for their disbursements on courier, filing, printing, transcript, and travel expenses.
Sch.1 provides an alternative ‘events based’ approach to the assessment of party/party costs, based upon general assumptions as to appropriate awards for the stages of a proceeding which are recorded in the Court file. In complex matters such as the present, the scale usually produces a much lower amount than might be recoverable under a full taxation process. It allows the award of an additional set of attendance fees with advocacy loadings, and the Commonwealth respondents have recognised this in their calculations rather than to claim counsel’s fees as disbursements.
The University has applied for costs on the same basis. It presents evidence that as at 26 September 2012, its legal costs and disbursements on a solicitor/client basis were $189,791.90 (GST included). It seeks a total costs award of $51,280.54, comprising Sch.1 professional costs of $41,771.50, and transcript costs of $9,509.04 (GST excluded).
I am persuaded to make fixed costs orders in the amounts sought. I have examined the calculations and evidence upon which they have been calculated. I accept that all the amounts claimed are properly and appropriately awarded in the circumstances of this matter. I consider that they give rise to costs awards which are obviously favourable to Mr Edwards, in the sense that they expose him to liabilities which are probably very substantially less than would arise under a full taxation of costs under the Federal Court scales.
I do not accept Mr Edwards’ submission that the awards calculated by reference to Sch.1 should be subject to discounting by 60% or any other proportion. I can see no proper basis for doing this, in a situation where the respondents were wholly successful in the proceedings.
In my opinion, the employment by the Commonwealth respondents and the University of separate counsel instructed by solicitors was plainly reasonable. If it is necessary, I shall certify to this effect under r.21.15 of the Federal Magistrates Court Rules. I therefore accept that it is appropriate to allow the relevant scale amounts for attendances by both solicitors and counsel at hearings and other listings, when this occurred.
I do not accept Mr Edwards’ criticisms of the respondents’ printing and transcript disbursements, and consider that they were justified in the circumstances of the case. In particular, noting Mr Edwards’ reliance upon voluminous documents, and his extensive post-hearing written submissions. It was appropriate for the Commonwealth to prepare and file a ‘Court Book’ style bundle of documents, notwithstanding that Mr Edwards subsequently tendered duplicates of much of this material.
No award is made in favour of the named fifth respondent, since the lawyers appearing for the other Commonwealth parties have denied appearing on its behalf. They have maintained that there is no such entity having a legal personality separate from the first respondent, and that it was wrongly joined.
As submitted by the respondents, I shall allow Mr Edwards 21 days to pay the costs without incurring liability for added interest.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 25 October 2012
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