Hamlin v The University of Queensland (No.3)
[2013] FCCA 1129
•20 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAMLIN v THE UNIVERSITY OF QUEENSLAND (NO.3) | [2013] FCCA 1129 |
| Catchwords: COSTS – Assessment of costs under Federal Circuit Court Rules 2001 – whether Counsel’s fees treated as disbursements. |
| Legislation: Federal Circuit Court Rules 2001, rr.21.02(2), 21.10, 21.14, 21.15, 21.16, Schedule 1 |
| Bunnag v Minister for Immigration & Citizenship (No.2) [2008] FMCA 430 Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90 Hamlin v The University of Queensland (No.2) [2013] FCCA 702 Kavanagh v Madgwick (No.3) [2008] FMCAfam 287 Lee v Proctor & Gamble Australia Pty Ltd (No.2) [2012] FMCA 1075 Rentoul v Poynton (No.2) [2008] FMCAfam 295 |
| Applicant: | LUKE HAMLIN |
| Respondent: | THE UNIVERSITY OF QUEENSLAND |
| File Number: | BRG 1 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | By written submission |
| Date of Last Submission: | 16 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 20 August 2013 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Bartley Cohen |
ORDERS
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $8,744.47.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1 of 2013
| LUKE HAMLIN |
Applicant
And
| THE UNIVERSITY OF QUEENSLAND |
Respondent
REASONS FOR JUDGMENT
On 1 July 2013 I delivered reasons for judgment in a costs application by the respondent against the applicant (Hamlin v The University of Queensland (No.2) [2013] FCCA 702). In those reasons for judgment, I determined that the respondent had not demonstrated that if an order for costs were to be made, there should be a departure from the event based cost scale set out in Schedule 1 to the Federal Circuit Court Rules 2001. No submissions were advanced by either party as to the appropriate quantum of costs having regard to the Schedule. I made a preliminary assessment of those costs as follows:
Stage
Description
Amount
1
Initiating or Opposing Application up to completion of first Court day
$2,633.00
1
Court attendance – 18 February 2013 (short mention)
$271.00
1
Court attendance – 6 May 2013 (short mention)
$271.00
2
Interim or summary hearing – 20 May 2013
$1,661.00
2
Court attendance – 20 May 2013 (including advocacy loading)
$1,495.50
Disbursements:
Court filing fees
Nil
Total:
$6,331.50
I then directed that if either party wished to make any further submissions in respect of the preliminary costs assessment made by me that those submissions should be made by 4:00pm 16 July 2013.
On 16 July 2013 the respondent filed further submissions in respect to the preliminary assessment of costs that I made. The applicant did not.
The respondent submits that the following costs are properly recoverable pursuant to Schedule 1, Part 1 of the Federal Circuit Court Rules:
Stage
Item
Amount Claimed
1
Initiating or Opposing Application up to completion of first Court day
$2,663.00
12 and 13
Court attendance on 18 February 2013 (including advocacy loading)
$406.00
12 and 13
Court attendance on 6 May 2013 (including advocacy loading)
$1,495.50
12 and 13
Interim or summary hearing
Court attendance 20 May 2013 (including advocacy loading)
$1,661.00
$1,495.50
14
Disbursements – Counsel fees
$15,850.00
14
Other disbursements – courier and filing clerk fees
$96.66
15
Disbursements – photocopying
$1,018.14
Total:
$24, 685.80
The significant difference between the preliminary assessment of costs that I made and the costs now sought by the respondent are the allowances for advocacy loading and Counsel’s fees.
The respondent submits that Counsel’s fees are properly characterised as a disbursement. No authority is cited for that proposition. The proposition is inconsistent with the approach taken by this Court to the proper construction of its Rules. In Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90 Raphael FM (as his Honour then was) discussed the event based system for costs found in the then Federal Magistrates Court Rules 2001. His Honour said:
“7. The event based system for costs found in the Federal Magistrates Court Rules is an attempt to simplify the assessment of costs and to avoid the necessity for either the state-based consideration by costs assessors or the Federal Court taxation approach. Unfortunately, like all well-intentioned ideas it is hostage to misunderstandings and the purpose of this judgment is to attempt to correct those for the benefit not only of these parties but for the benefit of others who come in the future.
…
13. … In respect of the advocacy loading I would explain this as follows. Where it has been certified that the matter is fit for an advocate under Part 20.15 this means that the advocate is entitled to 150% of the daily hearing fee. In addition, the instructing solicitor is entitled to the daily hearing fee. The only exception is when the advocate and the instructing solicitor both come from the same firm. In those circumstances (as set out in the Rules) only one fee of 150% of the daily hearing fee is payable. In this case counsel is therefore entitled to the advocacy loading on the daily hearing fee making the total payable to him of $1,027.50. This is all that counsel is entitled to. The applicant is not entitled to submit counsel’s fee note as a disbursement.
His Honour’s judgment has been followed on a number of occasions since: Rentoul v Poynton (No.2) [2008] FMCAfam 295 at [36]; Kavanagh v Madgwick (No.3) [2008] FMCAfam 287 at [42]; Bunnag v Minister for Immigration & Citizenship (No.2) [2008] FMCA 430 at [11]; Lee v Proctor & Gamble Australia Pty Ltd (No.2) [2012] FMCA 1075 at [39].
Unless I am satisfied that a previous decision of another Judge of this Court is clearly wrong, I should follow that decision. I am not satisfied that the decision in Colan (as above) is clearly wrong. I intend to follow that decision (as well as the others referred to above) and treat Counsel’s fees not as a disbursement, but by reference to the hearing fees and advocacy loading provisions in the Court’s scale of costs.
The Federal Circuit Court Rules provide:
21.14 Solicitor as advocate
(1) If a solicitor appeared for a party on a hearing alone or instructed by another solicitor who is a member of the same firm, the amount to which the party is entitled for the hearing is limited to:
(a) 150% of the daily hearing fee for 1 solicitor; and
(b) a fee for preparation.
(2) The party is not entitled to an amount for the preparation of a brief on hearing.
21.15 Advocacy certificate
The Court or a Registrar may certify that it was reasonable to employ an advocate, or more than 1 advocate, to appear for a party in a proceeding.
21.16 Counsel as advocate
If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Parts 1 and 2 of Schedule 1.
There were three Court events before this application was finally determined. The first was a directions hearing on 18 February, 2013. The second was the first hearing date for the respondent’s application to summarily dismiss the applicant’s claim. The hearing did not proceed on that day and it was adjourned to a later date. The third date was the day on which the respondent’s application to summarily dismiss the applicant’s claim was heard. Certification that it was reasonable to employ an advocate on any of those occasions was not sought by the respondent. There is no certification pursuant to rule 21.15 that it was reasonable to employ an advocate in respect of any of those proceedings.
However, at least by inference, the respondent now seeks certification that it was reasonable to employ an advocate to appear for it on each of the three occasions the matter was before the Court.
I do not consider that it was reasonable for the respondent to employ an advocate on the first Court date. The respondent did not employ an advocate and the solicitor with the conduct of the proceedings appeared at the first Court date. The allowance for that day should remain as the daily hearing fee for a short mention.
On the next occasion, the respondent expected that its application for summary dismissal would be heard. It was not heard and it was adjourned upon the application of the applicant. It was reasonable to employ an advocate for the purposes of that hearing and I so certify for the purposes of rule 21.15 of the Federal Circuit Court Rules. Accordingly, the amount payable in respect of that Court event is the hearing fee with an advocacy loading. The application for the adjournment was brief and disposed of in short compass. In those circumstances an allowance for a short mention is appropriate. The relevant amount together with an advocacy loading is $406.50. An allowance for the solicitor’s attendance to instruct Counsel on that day is also appropriate and I allow a second hearing fee for the instructing solicitor in the sum of $271.
My preliminary assessment of costs for the third Court event has already taken into account the relevant hearing fee and advocacy loading.
In addition to the above matters, the respondent seeks three further items of disbursements. A claim is made in respect of courier fees and fees described as “filing clerk”. None of those fees are vouched for by any evidence which would shed light on the nature of the expenditure incurred, that the fees have in fact been paid, or that the incurring of such fees was in all of the circumstances reasonable. I disallow those claims.
The third item relates to photocopying expenses. Particulars of the photocopying expenses claimed (at the rate prescribed by the rules) are set out in the submissions by the respondent although there is an inconsistency between the amount set out in the written submissions and the amount set out in the schedule (annexure B) to those submissions. I prefer to adopt the figure in the schedule as it is particularised. I am satisfied that those amounts are properly claimable and I allow $1,009.47 in respect of photocopying expenses.
For the reasons I have previously given, I am satisfied that the applicant ought to pay the respondent’s costs of and incidental to this application. I fix those costs in accordance with Schedule 1 of the Federal Circuit Court Rules as follows:
Stage
Description
Amount
1
Initiating or Opposing Application up to completion of first Court day
$2,633.00
13
Court attendance – 18 February 2013 (short mention)
$271.00
3
Interim or summary hearing – return date 6 May 2013
$1,661.00
12 & 13 Hearing Fee – 6 May 2013 (advocate) $406.50 13
Hearing Fee – 6 May 2013 (instructor)
$271.00
12& 13
Hearing Fee – 20 May 2013 (advocate)
$1,495.50
13 Hearing Fee – 20 May 2013 (instructor) $997.00 Disbursements: Photocopying fees $1,009.47 Total:
$8,744.47
I make the orders set out at the commencement of these reasons.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 August 2013
Associate:
Date: 20 August 2013
8
6
1