Fitzgerald, Norman Albert v Klef Pty Ltd
[1996] FCA 1083
•19 NOVEMBER 1996
CATCHWORDS
PROCEDURE - costs - taxation - review - objections - Federal Court of Australia Regulations: Schedule: item 12 fee - whether item 12 fee payable on filing of notice of objection to assessment of costs by taxation officer
Federal Court Rules O 3 r 3(1); O 62 r 40(2); O 62 r 41(1);
O 62 r 43(3); O 62 r 46(1), (2), (3) and (4A)
Federal Court of Australia Regulations reg 2(3); Schedule: item 12
NORMAN ALBERT FITZGERALD & ANOR v KLEF PTY LTD (ACN 002 311 453) & ORS
No QG 145 of 1993
SPENDER J
BRISBANE
19 NOVEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 145 of 1993
GENERAL DIVISION )
BETWEEN: NORMAN ALBERT FITZGERALD
First Applicant
AND: MARGARET GRACE FITZGERALD
Second Applicant
AND: KLEF PTY LTD (ACN 002 311 453)
First Respondent
AND: BURKE BOND NOMINEES PTY LTD (ACN 005 550 041)
Second Respondent
AND: BOOLARONG MANAGEMENT LIMITED (ACN 011 065 063)
Third Respondent
AND: GOMENO PTY LTD (ACN 010 111 199)
Fourth Respondent
AND: DAVID JOHN BEER
Sixth Respondent
AND: NORTHERN HOLIDAY SALES PTY LTD (ACN 010 993 861)
Seventh Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 19 November 1996
MINUTES OF ORDER
THE COURT DECLARES THAT:
The first respondent's notice of objection filed 12 September 1996 was filed in compliance with O 62 r 46(3) of the Federal Court Rules and with the Federal Court Regulations.
THE COURT ORDERS, BY CONSENT:
The first respondent in the principal proceedings pay the first and second applicants' costs of this motion filed 21 October 1996, to be fixed in the sum of $1,500.00, within 21 days of today.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 145 of 1993
GENERAL DIVISION )
BETWEEN: NORMAN ALBERT FITZGERALD
First Applicant
AND: MARGARET GRACE FITZGERALD
Second Applicant
AND: KLEF PTY LTD (ACN 002 311 453)
First Respondent
AND: BURKE BOND NOMINEES PTY LTD (ACN 005 550 041)
Second Respondent
AND: BOOLARONG MANAGEMENT LIMITED (ACN 011 065 063)
Third Respondent
AND: GOMENO PTY LTD (ACN 010 111 199)
Fourth Respondent
AND: DAVID JOHN BEER
Sixth Respondent
AND: NORTHERN HOLIDAY SALES PTY LTD (ACN 010 993 861)
Seventh Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 19 November 1996
REASONS FOR JUDGMENT
On 21 October 1996 a notice of motion was filed by Klef Pty Ltd, who was the first respondent in the principal proceedings between Norman Albert Fitzgerald and Margaret Grace Fitzgerald as first and second applicants against a total of seven respondents.
The notice of motion sought:
"1. That the time for filing a Notice of Objection pursuant to Order 62 rule 46(3)(c) in respect of an estimate issued by the Taxing Officer be extended to 1 October 1996.
That the First and Second Applicants pay the First Respondent's costs of and incidental to this application to be taxed. "
In my opinion, the notice of motion is based on a misunderstanding of the requirements to be observed by a person who wishes to object to an estimate of costs made by a taxing officer pursuant to O 62 r 46(3) of the Federal Court Rules ('the Rules').
It came about in this way. The first and second applicants had a claim for costs against the first respondent pursuant to the terms of settlement of an action against the first to seventh respondents in which, inter alia, the first to fourth respondents agreed to pay the first and second applicants' costs of the action, to be taxed. On 23 August 1996 there was a conference to attempt a mediated resolution of that claim. The conference was convened pursuant to the provisions of O 62 r 46(6) of the Rules. The conference failed to resolve the issue.
The Registrar had, pursuant to O 62 r 46(1) and (2) of the Rules, directed a taxing officer to make an estimate of the approximate total of which, if the bill were to be taxed, the certificate of taxation would be likely to issue. Order 62 r 46(1) and (2) of the Rules provides:
"(1) Notwithstanding anything in this Order, the Registrar shall have a discretion to apply the provisions or a provision of this rule, and may for that purpose decline to give an appointment to tax a bill on its being filed, and may require the party who filed the bill to lodge any documents in the possession or power of that party.
(2) If the Registrar decides to apply this rule, the Registrar may direct that action be taken under the provisions of subrule (3) or subrule (4). The Registrar may also or alternatively take action under subrule (6). "
By letter dated 3 September 1996, Deputy District Registrar McQuaid wrote to the solicitors for the first respondent advising that she had made an assessment by way of estimate in the sum of $36,060.06, and that any notice of objection should be filed within 14 days. She further advised that at the time of filing such objection, payment of $750.00 to the Registry, by way of security for the costs of any taxation of the bill, was required. It is appropriate to set out in full the provisions of O 62 r 46(3) of the Rules, as well as O 62 r 46(4A) of the Rules:
O 62 r 46(3)
"(a) Upon the direction of the Registrar under subrule (2), a taxing officer may, without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.
(b)The Registrar will notify each party interested in the bill in writing of an estimate made under paragraph (a).
(c)Unless within 14 days of receipt of notice under paragraph (b), a party interested files and serves on each other party a notice of objection to the estimate, there shall be no taxation, and the amount of the estimate shall be deemed to be the amount for which a certificate of taxation may issue.
(d)Upon filing a notice of objection a party shall pay to the Registrar an amount of $750 as security for the costs of any taxation of the bill.
(e)Where a notice of objection is filed, the Registrar may direct that subrule (4) apply, or that taxation of the bill proceed. "
O 62 r 46(4A)
"If a notice of objection is filed under paragraph 46(3)(c), or a notice requiring a full taxation is filed under paragraph 46(4)(c), the party filing the notice shall bear the costs of taxation of all parties from the date of filing the notice unless, on taxation, there is obtained in that party's favour a variation of at least 15% of the estimate of taxed costs or of the amount provisionally taxed. "
On 12 September 1996, within the 14 days referred to in subrule 46(3)(d), a notice of objection was filed in the Registry, and $750 referred to in Deputy Registrar McQuaid's letter was paid to the Registry.
By letter dated 13 September 1996, Deputy District Registrar Allen wrote to the solicitor for the first respondent advising that an additional fee in the sum of $3285.00 was payable. In that letter Mr Allen said:
"It is noted that you have paid the $750.00 security deposit payable under [Order 62 r 46(3)(d)]. "
His letter continued:
"However, you have not paid the fee under Item 12 of SR 189 of 1996. This fee is $3285.00. This fee is payable by a party objecting to an estimate and seeking taxation of a bill. "
That letter was responded to on behalf of the first respondent, the applicants on the motion, and Mr Allen replied to that letter. His reply of 27 September 1996 included the following:
"The fee payable under Item 12 of the Schedule is to be paid by the party objecting to an estimate and seeking taxation of a bill.
I draw your attention to Regulation 2(3) of the Federal Court Regulations:
'A document shall not be filed in a Registry of the Court unless the fee payable upon or in respect of the filing has been paid. "
Item 12 imposes a fee payable "in respect of" the filing.
Your objection can only be treated as having been filed upon payment of the outstanding $3285.00. Until that occurs, proceedings cannot be validly put in train in respect of any taxation.
Furthermore, if the relevant time period set out in Order 62 Rule 46(3)(c) has elapsed, the applicant is at liberty to procure a certificate for the amount of the estimate forthwith. "
The question is whether the view expressed by Mr Allen in his two letters is correct.
Item 12 in SR 189 of 1996 ('the item 12 charge') is in the following terms:
"THE FEDERAL COURT OF AUSTRALIA REGULATIONS
SCHEDULE
FEES TO BE TAKEN IN THE REGISTRY OF THE COURT.
Column 1Column 2 Column 3
Item No. Document or service Fee ($)
...
12 For taxing a bill of costs 7.50
- for every $100.00 or part
of $100.00 of the amount
claimed in the bill filed. "
This item did not appear in the previous Statutory Rule No. 36 of 1978; it came into effect on 1 September 1996. In the view I take of the matter, the item 12 charge is an amount charged by the court for taxing a bill of costs.
It is not, in my opinion, payable when a party applies pursuant to O 62 r 41(1) of the Rules, which rule provides:
"An appointment to tax a bill of costs shall be given to a party filing a bill of costs for taxation and such appointment shall be endorsed on the bill prior to it being served on all parties to the taxation. "
This rule is predicated on a bill of costs being filed. That a filing of a bill of costs is contemplated by the Rules is confirmed by O 62 r 40(2) of the Rules which provides:
"There shall be endorsed on the bill a certificate signed by a solicitor verifying the additions in it, and there shall be attached to it or otherwise filed with it in a convenient manner adding machine or computer slips or working papers together with originals or legible copies of receipts for disbursements, or if a disbursement has not been paid, copies of all relevant accounts. "
See also O 62 r 46(1), earlier set out.
Further, in my opinion, the item 12 charge is not payable when a party files a notice of objection to an assessment made by a taxing officer pursuant to a direction of the Registrar (the estimate having been made pursuant to O 62 r 46(3)(c) of the Rules and the notice of objection being filed in accordance with O 62 r 46(3)(c) of the Rules).
Whether the amount of the item 12 charge is to be paid prior to an actual taxation by a taxing officer of the court, or whether it is an item which is to be paid on or after that
taxation, is a matter which is unnecessary for me presently to decide.
Regulation 2(3) of the Federal Court of Australia Regulations provides:
"A document shall not be filed in the Registry of the Court unless the fee (if any) payable upon or in respect of the filing has been paid. "
In my opinion, however, the amount of the item 12 charge is not a fee "payable upon or in respect of" the filing of a bill of costs or of a notice of objection, and therefore is not required to be paid when either a bill of costs is filed or a notice of objection to an assessment is filed.
Further, Item 12 refers, in terms, to "the amount claimed in the bill filed". The "filing" there referred to cannot, in my opinion, be read as being a reference to the filing of a notice of objection to an assessment of a taxing officer under O 62 r 43(3) of the Rules. Item 12 imposes a fee in respect of the taxation of costs by the court.
In those circumstances, in my opinion, the notice of objection lodged on 12 September 1996 on behalf of the first respondent was validly filed. I declare that the notice of objection lodged on 12 September 1996 by the first respondent was filed in compliance with the requirements of O 62 r 46(3) of the Rules, and with the Federal Court of Australia Regulations. The extension of time sought by the motion is not needed.
That the court has such a power to extend time, if it were necessary to do so, is apparent from O 3 r 3(1) and (2) of the Rules, which provide:
"(1) The Court or a Judge may by order extend or abridge any time fixed by the Rules or by any judgment or order.
(2) The Court or a Judge may extend time under sub-rule (1) either before or after the time expires and whether or not an application for the extension is made before the time expires. "
The parties have reached their own agreement as to the costs of the motion. Consequently, the appropriateness of what has been agreed is not a matter for my consideration.
I order, by consent, that the first respondent in the principal application pay the costs of and incidental to the notice of motion filed 21 October 1996 of the first and second applicants in the principal application, fixed in the sum of $1,500.00, within 21 days of today's date.
I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 19 November 1996
Counsel for the first
respondent : Mr G Robinson
instructed by : Quinn & Scattini
Counsel for the first and
second applicants : Mr G K Flint
instructed by : Boyce Garrick Eastman
Date of Hearing : 19 November 1996
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