Fat-Sel Pty Ltd v Brambles Holdings Ltd - [1985] FCA 204

Re: FAT-SEL PTY. LIMITED
And: BRAMBLES HOLDINGS LIMITED (1985) 2 FCR 440
No. G16 of 1985
Costs - High Court and Federal Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Costs - Federal Court Rules 0.62R.12 and R.19 - costs for perusing documents prima facie "unreasonable" - taxing officer has no discretion to reduce amount allowed Second Schedule for such item.

Price v. Clinton (1906) 2 Ch. 487 - con.

High Court and Federal Judiciary - Federal Court of Australia - Costs - Taxation - Discretion to allow amounts at other than scale - Costs of perusing documents - Unreasonable amounts - Federal Court Rules 1979 (Cth), O 62, rr 12, 19, second Schedule, Items 17, 18.

HEADNOTE

Held: That subject to the possible operation of the Federal Court Rules O 62, r 19, where an item falls within the Second Schedule items 17 or 18 the taxing officer is bound to allow costs on the basis there specified and at no lower rate. Price v. Clinton (1906) 2 Ch 487, applied.

HEARING

Sydney, 1985, April 18, 23; May 20-21, 29. #DATE 29:5:1985
REFERENCE

Reference from a taxing officer as to the application of the Federal Court Rules, Second Schedule, items 17 and 18.

G A Moore, for the applicant.

L P Robberds QC and S D Robb, for the respondent.

Cur adv vult

Solicitors for the applicant: N G Cassim & Co.

Solicitors for respondent: Stephen Jaques Stone James.

BAG

ORDER

Answer the questions referred as follows:
Question: Notwithstanding the provisions of Order 62 Rule 12 of the Federal Court Rules, does the taxing officer have a discretion to allow items at other than the scale, measurement or fee contained in the Second Schedule to the Federal Court Rules?
Answer: Subject to the operation, if any, of Order 62 Rule 19, no. Question: In particular, does Rule 19 operate to qualify Rule 12?
Answer: Yes.
Make no order as to costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

Orders accordingly

JUDGE1

(ON REFERENCE FROM A TAXING OFFICER)

In the context of an application for security for costs, I ordered that the respondent's costs for work done in this proceeding up to 22 March 1985 be taxed. A bill of costs having been filed, pursuant to Order 62 Rule 39(3), the taxing officer has referred to the Court the following questions:

"1. Notwithstanding the provisions of Order 62 Rule 12 of the Federal Court Rules, does the Taxing Officer have a discretion to allow items at other than the scale, measurement or fee contained in the Second Schedule to the Federal Court Rules? In particular,, does Rule 19 operate to qualify Rule 12?"

The facts, as stated by the taxing officer, are as follows:

"Throughout the Respondent's Bill of Costs charges are made in respect of the following items in the Second Schedule:-

17. Perusal of any document (when necessary) including…

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: [1985] FCA 204
Decision Date: 29 MAY 1985

CaseChat Overview and Summary

Fat-Sel Pty Ltd sought to recover costs from Brambles Holdings Ltd, raising issues concerning the discretion of the taxing officer in awarding costs under the Federal Court Rules. Specifically, Fat-Sel argued that the taxing officer should not have discretion to reduce the amount allowed for perusing documents if such costs were deemed prima facie "unreasonable." This case reached the court, which was tasked with determining whether the taxing officer had any discretion to allow costs at a rate other than that specified in the Second Schedule to the Federal Court Rules, and whether Order 62 Rule 19 of the Rules qualified any discretion under Rule 12.

The court examined the relevant provisions of the Federal Court Rules, particularly Order 62 Rule 12 and Rule 19. The court held that, subject to the operation of Rule 19, the taxing officer did not have the discretion to allow costs at a rate different from that specified in the Second Schedule. Rule 19 was found to operate so as to qualify any discretion under Rule 12, thus reinforcing the rigidity of the Second Schedule's cost allowances. The court concluded that the taxing officer's role in assessing costs was limited to adhering to the prescribed rates and measurements, with no discretion to alter these amounts even if they appeared unreasonable.

In light of this determination, the court answered the referred questions accordingly. It held that, subject to the operation of Order 62 Rule 19, the taxing officer had no discretion to allow costs at other than the scale, measurement, or fee contained in the Second Schedule to the Federal Court Rules. Moreover, Rule 19 indeed qualified any discretion under Rule 12. As a result, no order was made regarding the costs in dispute. The court's decision underscores the importance of adhering to the prescribed cost structures outlined in the Federal Court Rules, ensuring consistency and predictability in cost recovery processes.

Orders

Orders of the court

Answer the questions referred as follows:

Question: Notwithstanding the provisions of Order 62 Rule 12 of the Federal Court Rules, does the taxing officer have a discretion to allow items at other than the scale, measurement or fee contained in the Second Schedule to the Federal Court Rules?

Answer: Subject to the operation, if any, of Order 62 Rule 19, no. Question: In particular, does Rule 19 operate to qualify Rule 12?

Answer: Yes.

Make no order as to costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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