Hamlin v University of Queensland (No 2)

[2013] FCCA 702

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMLIN v THE UNIVERSITY OF QUEENSLAND (NO.2) [2013] FCCA 702

Catchwords:
COSTS – Application for indemnity costs – whether costs according to event based court scale should be awarded.

Legislation:  

AustralianHuman Rights Commission Act 1986 (Cth), s.46PO
Federal Circuit Court of Australia Act 1999 (Cth), s.79

Federal Circuit Court Rules 2001, rr.21.02(2), 21.10, sch.1

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Hinchliffe v University of Sydney [2004] FMCA 640
Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250

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: 17 June 2013

Delivered at: Brisbane

Delivered on: 1 July 2013

REPRESENTATION

The Applicant appeared on his own behalf.

Solicitors for the Respondent: Bartley Cohen

ORDERS

1. Either party make further submissions in respect of the Court’s preliminary costs assessment by 4.00pm on 16 July 2013.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1 of 2013

LUKE HAMLIN

Applicant

And

THE UNIVERSITY OF QUEENSLAND

Respondent

REASONS FOR JUDGMENT

1. On 31 May, 2013 I gave judgment on the University’s application to summarily dismiss the principal proceedings in this matter: Hamlin v The University of Queensland [2013] FCCA 406. I summarily dismissed Mr Hamlin’s application for relief under s.46PO of the AustralianHuman Rights Commission Act 1986 (Cth).

2. The University now applies for its costs of and incidental to the proceeding, including the costs of and incidental to any appearances made on an interlocutory basis, to be assessed on the indemnity basis. 

3. Written submissions as to costs on behalf of the University were filed on 5 June, 2013.  Mr Hamlin filed his written submissions on 17 June, 2013.

4. As the University points out in its written submissions, the Court has jurisdiction to order an unsuccessful applicant to pay costs: s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) and may set the amount of the costs, the method by which the costs are to be calculated, refer the costs for taxation or set a time for payment of the costs: rule 21.02(2) of the Federal Circuit Court Rules 2001.

5. The Court’s discretion to make an order for costs is absolute and unfettered but it must be exercised judicially: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400. However, the starting point is that ordinarily costs, if they are to be awarded, will be assessed according to the event based scale set out in Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001: FCCR 21.10, Hinchliffe v University of Sydney [2004] FMCA 640 at [10]; Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at [43]; applied in Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359.

6. The University argues that costs ought to follow the event.  Mr Hamlin does not appear to dispute that proposition because his submissions are focussed upon the appropriate basis for taxation rather than whether there should be an order for costs at all.  His submissions appear to accept, if not expressly, then certainly by implication, that an order for costs in favour of the University is appropriate.

7. Thus, what is at issue between the parties is the basis upon which the costs ought to be quantified.  The University seeks an order for costs on an indemnity basis.  Mr Hamlin says that the quantum of costs should be fixed on a party and party basis.

8. The University argues that an indemnity costs order is appropriate because the proceedings:

   a)were entirely unmeritorious;

   b)were continued by Mr Hamlin in wilful disregard of the deficiencies in his case; and

   c)were continued by Mr Hamlin in circumstances where, properly advised, he should have known that he had no chance of success.

9. I accept that Mr Hamlin was given multiple opportunities to present his case in such a way that it fairly and reasonably informed the University of the precise nature of his claims, the factual basis for his claims and the evidence in support of his claims.  I accept that those opportunities included:

   a)detailed requests for particulars which, if complied with, would have precisely identified the basis for his claims and how they fitted within the statutory prohibitions;

   b)orders requiring Mr Hamlin to adduce all evidence in support of his claims;

   c)orders adjourning the hearing of the summary judgment application (from 6 May 2013) to allow Mr Hamlin to seek legal advice as to the merits of the respondent’s summary judgment application;

   d)that Mr Hamlin had the benefit of the respondent’s affidavit material and a detailed written outline of submissions that identified the defects with his case over the adjourned period.

10. Mr Hamlin argues that the evidence provided to the Court by him to support his case, although falling short of racial discrimination, “is a clear example of the social injustice suffered by Indigenous students at this University”.  But in my view it is nothing of the sort.  As I indicated in my earlier reasons for judgment, there was no evidence produced by Mr Hamlin to support any of his claims against the University.  There was evidence led by the University that when Mr Hamlin raised issues that concerned him, the University (by the appropriate personnel) had dealt with those issues in a timely and appropriate way.

11. Further, Mr Hamlin argues that if the University honestly believed that his claims were “entirely unmeritorious and were continued by the applicant in wilful disregard of the deficiencies with the case” then it could have sought to have the proceedings struck out on the grounds that the application was vexatious or an abuse of court process. Mr Hamlin argues, at least inferentially, that because it did not do that, his case must have had some merit.  But for the reasons I delivered on 31 May, 2013, in my view it did not.

12. Although it is not spelled out in the University’s submissions, presumably the costs order sought is that the costs be assessed (on either basis) according to the scale in the Federal Court Rules 2011. However, save from the submissions made by the University in support of its application for an indemnity costs order, no submissions have been made about why it is appropriate in this case to depart from the event based costs scale that, prima facie, applies in this Court.

13. In my view the University’s submissions demonstrate no basis for departing from the event based costs scale.  This case was not complex in any sense.  In my view, before one moves to consider the basis upon which any assessment or taxation of costs should occur pursuant to the Federal Court Rules2011, it is necessary to first decide that there ought to be a departure from the event based costs scale prescribed by the rules of this Court.  The matters raised by the University will, in part at least, be relevant to that consideration. 

14. However, in my view, no departure from the event based costs scale is warranted by the matters raised by the University. 

15. No submissions have been made by either party as to the appropriate quantum of costs having regard to schedule 1 of the Federal Circuit Court Rules2001. 

16. I make the following preliminary assessment of those costs:

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

1. Either party may make further submissions in respect of the above preliminary assessment by 4.00pm on 16 July 2013.  Thereafter I will consider any further submissions so made and pronounce a final costs order having regard to any submissions received from the parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 July 2013

Associate: 

Date:  1 July 2013