Goodricke v COMCARE (No.2)

[2015] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOODRICKE v COMCARE (No.2) [2015] FCCA 825

Catchwords:
PRACTICE AND PROCEDURE – Costs.

Legislation:

Federal Circuit Court Rules2001, r.21.05, schedule 1

Genovese v BG Construction Pty Ltd (No2) [2007] FMCA 601

Applicant: PETER GOODRICKE

Respondent: COMCARE

File Number: BRG 639 of 2013

Judgment of: Judge Jarrett

Hearing date: By written submission

Date of Last Submission: 27 March 2015

Delivered at: Brisbane

Delivered on: 10 April 2015

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr Dillon

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicant pay the respondent’s costs of and incidental to the application filed on 3 July, 2013, including reserved costs if any, on a party and party basis:

   (a)in accordance with the scale of costs then applicable and prescribed by the Federal Court Rules2011 for the period from 3 July, 2013 to 26 July, 2013; and

   (b)thereafter in accordance with schedule 1 of the Federal Circuit Court Rules2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 639 of 2013

PETER GOODRICKE

Applicant

And

COMCARE

Respondent

REASONS FOR JUDGMENT

1. On 6 March, 2015 I delivered reasons for judgment in Mr Goodricke’s application against Comcare. I dismissed Mr Goodricke’s claim. In the conclusion of my reasons for judgment I said:

   Mr Goodricke does not make out any of the grounds of his review.  For the above reasons, Mr Goodricke’s application must be dismissed with costs.  It is appropriate, I think, to make directions about submissions concerning the basis upon which costs ought to be assessed.

2. Both parties have now filed submissions as to costs.  The respondent’s submissions deal with whether the costs ought to be assessed on a party and party basis or an indemnity basis.  The respondent seeks that Mr Goodricke pay its costs on the indemnity basis.  Mr Goodricke’s submissions, with respect, make very little sense and seemingly do not address the issue in respect of which I sought further submissions.

3. In hindsight, my request for further submissions on the issue of costs was imprecise.  I intended that the parties would make submissions about whether the costs of the application should be assessed according to the Federal Court Rules2011 or the Federal Circuit Court Rules2001 or a combination of both.  Neither submission dealt with that issue.  It was not my intention to invite submissions as to whether costs ought to be assessed on a party and party basis or an indemnity basis.  But there it is. 

4. The respondent points to four matters that it argues justify an order for costs on the indemnity basis. 

5. The first is that by reason of having been advised by the respondent’s lawyers on a number of occasions that his application could not succeed, Mr Goodricke should have known that there was no prospect of success for his application.  Whilst it is apparent that the respondent did, on no less than four occasions, write to Mr Goodricke and point out that the basis upon which he pursued his principal application could not succeed, in my view, that is a matter which ought to carry little weight.  Mr Goodricke was entitled to be circumspect about the advice that he received from the respondent’s lawyers.  Mr Goodricke is not a lawyer himself and there is no suggestion that Mr Goodricke had the benefit of legal advice which might have affirmed the information he received from the respondent’s lawyers.

6. The second and third matters relied upon by Mr Goodricke are related.  Mr Goodricke alleged fraud in the proceedings but bought no evidence to establish the fraud that he alleged.  He persisted in making those allegations which the respondent argues ought not to have been made.  The respondent argues that those allegations have resulted in undue prolongation of groundless contentions. 

7. As to those matters, it is true that Mr Goodricke alleged that the calculation of his normal weekly earnings was not a bone fide assessment by the respondent’s offices and that his compromise of litigation before the Administrative Appeals Tribunal about that matter was procured by the fraud of the respondent’s officers.  I am not satisfied that his persistence in making those claims led to any pre-prolongation of proceedings.  Nonetheless, I have taken into account the making of groundless allegations of fraud.

8. The fourth matter relied upon by the respondent is that Mr Goodricke has imprudently refused an offer to compromise the proceedings.  In that respect, the respondent submits:

   Throughout the proceedings the respondent made it clear to the applicant that, should the applicant be unsuccessful in his application, the respondent would seek a costs order against him.  Further, the respondent attempted to limit the interaction its lawyers had with the applicant to avoid unnecessary costs.  As seen in the submissions above, the respondent made it very clear to the applicant that it considered that he had very poor prospects and should consider discontinuing his claim, an action respondent could not take.  The respondent’s predictions as to the outcome of the proceeding have been shown to be correct. 

9. On 26 September, 2013 the respondent made an offer to settle the proceedings to the applicant.  It offered to compromise the proceedings on the basis that the respondent would not seek any orders for costs against the applicant if he chose to withdraw his application.  Mr Goodricke did not accept that offer. 

10. As the respondent’s submissions point out, the Court has a very wide discretion, to be exercised judicially, when determining the basis upon which costs should be awarded.  What is an appropriate costs order depends on the circumstances of the case.  The normal practice, not to be lightly departed from, is to provide for costs to be on a party – party basis.  Where, however, the circumstances demand the Court to depart from the usual rule, an order for costs be assessed on the indemnity basis: Genovese v BG Construction Pty Ltd (No2) [2007] FMCA 601 at [47].

11. In the present proceedings, I am not satisfied that the matters to which the respondent has drawn my attention warrant an assessment of costs on an indemnity basis.  Mr Goodricke was entitled to prosecute his proceedings.  Whilst it is the case that his arguments were not ultimately successful, in my view he was not obliged to accept unequivocally the advice that he received from the respondent’s solicitors about the lack of strength of this case.  His allegations of fraud, whilst they were not made out and should not have been made, were made by a layperson unfamiliar with the usual rules relating to the making of allegations of fraud in proceedings such as these.  Mr Goodricke’s failure to accept the respondent’s offer of compromise was no doubt due to his genuine belief (which I accept he had) about the merits of his application.

12. Costs on a party and party basis are, in my opinion, appropriate in the circumstances of this case. 

13. These proceedings were commenced in the Federal Court of Australia.  They were transferred to this Court by order of a Federal Court judge.  My purpose in seeking submissions from the parties about the question of costs was to obtain some assistance in determining whether the costs ought to be assessed according to the Federal Court scale or the Federal Circuit Court scale.  I have not received that assistance.  Indeed, the respondent’s submissions proceeded on the basis that the application for indemnity costs was undoubtedly to be successful.  No alternative position was put by the respondent in its submissions.  Moreover, whilst the respondent filed evidence to support some of the matters set out in its written submissions on costs, there was no evidence to prove the amounts claimed by way of costs or the amounts claimed by way of disbursements. 

14. Rule 21.05 of the Federal Circuit Court Rules2001 provides:

    21.05  Costs if proceedings transferred

    (1)  This rule applies if a proceeding is transferred to the Court from the Family Court or the Federal Court.

    (2)  If the court from which the proceeding is transferred has not made an order for costs, the Court may make an order for costs including costs before the transfer.

    (3)  Unless the court from which the proceeding is transferred otherwise orders, costs before the transfer must be in accordance with this Part.

15. The judge of the Federal Court did not make any order as to costs when the application was transferred to this Court. Accordingly, costs before the transfer must be in accordance with Part 21 of the Federal Circuit Court Rules.

16. In my view, the respondent ought to have its costs on a party and party basis against Mr Goodricke taxed in accordance with the Federal Court Rules from the date of commencement of the proceedings (3 July, 2013) to the date upon which they were transferred to this Court (26 July, 2013) and thereafter, the respondent should have its costs against the applicant in accordance with schedule 1 to the Federal Circuit Court Rules. Ordinarily, the Court would assess the costs according to the scale set out in schedule 1 to the Federal Circuit Court Rules, but given that in this case some assessment of some costs must occur pursuant to the Federal Court Rules and there is no evidence before as to the respondent’s disbursements, taxation (in the absence of agreement between the parties as to the quantum of costs) is appropriate.

17. I order accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 April, 2015.

Associate: 

Date:         10 April 2015